author: Pryor, J.

text:
    The Home Maker Co. Resp’t, v. Charles K. Alley, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Bill op particulars—Breach op contract.
    A complaint alleging that defendant neglected and refused to mail a specified number of plaintiff’s magazine, and wrongfully held and retained the mailing list and edition of the magazine, states hut a single and entire cause of action; there are no items of claim or damage, and the defendant is not entitled to a bill of particulars thereof.
    Appeal from order denying motion for bill of particulars.

      John C. Gulick, for app’lt; Joseph Fitch, for resp’t.
   Pryor, J.

For cause of action the complaint alleges that defendant neglected and refused to mail the March number of plaintiff’s magazine to subscribers and advertisers, and wrongfully held and retained the mailing list and the edition of said magazine, to his damage $2,500. Defendant wants to know how much plaintiff was damaged: 1st By failure to mail to subscribers; 2d, by failure to mail to advertisers; 3d, by detention of the mailing list, and 4th, by detention of the edition. This information the learned judge at special term refused to require the plaintiff to furnish.

The order appealed from is correct beyond controversy.

Essentially a single act, the detention of the magazine, is alleged as the cause of action, and the claim is for damages resulting from that act. By the motion, the defendant requires of the plaintiff to resolve the damage ensuing from the tort into constitutive elements, and to propound them by a distinct classification; as in assault and battery, to state separately and specifically to what amount the plaintiff is injured in his eyes, in his nose and in his abdomen. The contention is preposterous. Plainly the attempt is to force a premature disclosure of plaintiff’s proof of damage; but this is never allowable. Passavant v. Cantor, 48 Hun, 546; 16 St. Rep., 252; Higenbotam v. Green, 25 Hun, 214, 216 ; Ball v. Evening Post Co,, 38 id., 11. A bill of particulars of matters amounting to mere evidence of special damages is unauthorized. Dooley v. Royal Baking Powder Co., 1 Law Bulletin, 18. So, of a bill of particulars, in an action for libel, as to the injury to plaintiff’s good name and reputation in its business and credit. American M. F. Co. v. Eureka F. H. Co., 18 Abb. N. C., 70. So, of a bill of particulars stating the damages sustained by each refusal of credit to plaintiff. Lane v. Williams, 37 Hun, 388.

Indeed, the classification of plaintiff’s damages 'which the defendant submitted in his affidavit suggests that he is sufficiently informed as to those damages to escape all possibility of peril of surprise on the trial. Gee v. The Chase M. Co., 12 Hun, 630; Fink v. Jetter, 38 id., 163.

But defendant swears that he is ignorant of the items of plaintiff’s claim and damage, and truly; for there are no items of claim or damage ; the 'cause of action and the consequent damage both being single and entire.

The order is affirmed, with costs and disbursements.

Daly, Ch. J., and Bischoff, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Philip Markey, App’lt, v. Charles Herbert Diamond, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 29, 1892.)

    Abbest—Affidavit.
    An affidavit for an order of arrest on the ground of false representations, which contains assertions of the falsity of the representations based upon information only, and does not state the sources of such information or the reason why better proof is not offered, is insufficient.
    Appeal from order of the general term of the city court of New York,, reversing an order of the special term, and granting defendant’s motion to vacate an order of arrest upon the papers on which the same was granted.
    This action was brought to recover damages for alleged false representations made by the defendant to induce plaintiff to give credit to one Maria N. Winne.
    An order of arrest was granted by Mr. Justice Newburger upon the verified complaint and an affidavit of the plaintiff.
    The complaint and affidavit upon which the order of arrest was granted set forth that the defendant represented to plaintiff that said “Maria N. Winne was solvent and in good credit, and worth the sum of one hundred thousand dollars over all her debts and liabilities,” “ and that she owned real estate in the city of New York, free and unencumbered, worth over fifty thousand dollars. ”
    The following are the only allegations of the falsity of the alleged representations:
    The complaint sets forth:
    “ That the said representations were false, in that said Maria N. Winne was not then and there solvent and in good, credit and worth one hundred thousand dollars, or fifty thousand dollars, over and above all her liabilities, but, on the contrary, and as the defendant then well knew, the said Maria N. Winne was then and there insolvent, and not in good credit, nor safe to be trusted.”

    The affidavit sets forth:
    “ That said representations as to the solvency of said Maria N. Winne were false and fraudulent and untrue, and were made with the preconceived design and intent of defrauding this plaintiff, and, as a matter of fact, said Winne was insolvent, and was a woman without means, and deponent has since ascertained from persons who know said Maria N. Winne, that she was residing at 226 1st street, Albany, on the top floor of a tenement, at a rental of $9 per month, and that she had been supported, in part, for past years by the Ladies’ Aid Society of St. Paul’s Church in the city of Albany.”

      F. H. Gray, for app’lt; Mooney & Shipman, for resp’t.

       Affirming 46 St. Rep., 283.

   Per Curiam.

The appellant has not made out a good case for the reversal of this order. It appears to us that the criticism of the general term of the city court upon this affidavit is justifiable. It contains assertions of the falsity of the representations made by the defendant; but they are evidently based upon information only, and the sources of the information are not given nor any reason why better proof is not offered. Where, in a civil action, the plaintiff desires, so to speak, to enforce his claim at the outset by arrest and imprisonment of the defendant, in other words, to have execution before obtaining judgment, it is not too much to ask him to present such evidence as alone would be receivable 'upon the trial of the action to justify an ordinary judgment for money. Such has been the practice in this court, and we are glad to see that the city court is alive to the propriety of enforcing the same rule.

We think that the decision of the city court is not only correct but quite wholesome in its tendency.

The order is affirmed, with costs.


author: Pryor, J

text:
    Charles Nette, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Railboad—Elevated—Benefits.
    The proximity of an elevated railroad and its station to the premises in question, and the extensive communication thereby afforded and facilitated, in itself is evidence of benefits. ■

      2. Same—Exceptions.
    An exception to a refusal to consider benefits is of equivalent effect to an exception to the rejection of evidence of benefits.
    3. Same.
    Such a refusal is a substantial error, as it cannot-be said that if the referee had considered benefits he would not have found the fact of no substantial injury, in which event plaintiff would not be entitled to injunctive relief.
    Motion for reargument.

      J. Aspinwall Hodge, Jr., for motion; W. R. Page, in opposition.

       See 48 St. Rep., ,723.

   Pryor, J

The decision on appeal was based upon the refusal of the referee to find that, “in estimating the damages herein, if any, the benefits accruing to said premises, and peculiar thereto, from the maintenance and operation of said railway, should be set off against any inconveniences resulting from said railway to said premises.” Counsel for the motion objects that the case shows no evidence of benefits. We think otherwise. The proximity of the railroad and its station to the premises, and the extensive communication with the premises thereby afforded and facilitated,' in itself is evidence of benefits. Drucher v. Manhattan R. Co., 106 N. Y., 164; 8 St. Rep., 599. In Flynn v. Taylor, 127 N. Y., 600; 40 St. Rep., 187, the court said that the diversion of travel is presumed to cause special damages, “ because diversion of trade inevitably follows diversion of travel.” The converse of the proposition must be true; namely, that increase of trade inevitably follows increase of travel. At all events, the fact was for the judgment of the referee; but his refusal to consider special benefits necessarily involves the elimination of the fact in his estimate of damages.

Other facts in the case might indicate to the referee the probability of benefits.

Counsel for the motion urges that “ the defendants did not ask the court to find that there were any benefits.” But their claim, by the request to find, that the referee should allow for benefits in the estimate of damages, implies that, upon the evidence, benefits were apparent.

Counsel concedes that if there were an exception to the rejection of evidence of benefits, it might be fatal to the motion; but obviously of equivalent effect is the exception to the refusal of the referee to consider benefits.

The court did not overlook the refusal to find defendants’ thirtieth request; that refusal, however, is of no materiality to the present purpose; since, assuming the converse of the proposition, the referee might have found “a diminution of the fee value in consequence of the railroad,” because of the rejection of benefits in his estimate.

Again, counsel argues that, even though benefits be allowable, they go only in reduction of damages, and do not affect plaintiff’s right to injunctive relief. Seeing that the plaintiff would be entitled to such relief only in the event of substantial injury, Gray v. R. R. Co., 128 N. Y., 500; 40 St. Rep., 478, how can we say that, if the referee had considered benefits, he would not have found the fact of no substantial injury ?

Counsel adduces considerations affecting the merits of the action ; but they are of no relevancy to the present application.

Counsel for the motion fails to present a case within rule 16 of this court, and within the general principle regulating the allowance of re-arguments. Fosdick v. Hempstead, 126 N. Y., 651; 37 St. Rep., 130; Mount v. Mitchell, 32 N. Y., 702; Curley v. Tomlinson, 5 Daly, 283; Banks v. Carter, 7 id., 417 ; Welsh v. R. R. Co., 40 St. Rep., 990.

We adhere to the opinion that, in the interests of justice, a new trial of the action should be had.

Motion denied, with costs.

Daly, Ch. J., and Bischoef, J., concur.


author: Bischoff, J.

text:
    Marcellus Hartley, Resp’t, v. Arthur L. Meyer, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Mortgage—Mortgagor cannot compromise with tenant so as to deprive MORTGAGEE OR HIS SUCCESSOR OB’ THE RIGHT TO RENTS.
    The owner of property mortgaged the same and leased a portion to a tenant. Afterwards, becoming indebted to the tenant, a compromise was made by which the rents unmatured were applied to the debt. The mortgage having been foreclosed and the premises sold thereon to plaintiff, Held, that the mortgagor could not in this manner deprive the mortgagee or his successor in interest of the right to intercept the rents without his assent, and that such compromise was made at the lessee’s peril.
    Appeal from a final order made by the district court m the city of Hew York for the sixth judicial district, awarding the delivery of the possession of the demised premises to the landlord, in summary proceedings to recover such possession, instituted for default in the payment of rent.

      Allan McCulloh and Chas. W. Pierson, for resp’t; Melville H. Regensburger, for app’lt.
   Bischoff, J.

The Lexington Improvement Company, as owner of the premises 128 East Thirty-Fourth street, in the city of Hew York, by mortgage dated Hovember 27, 1888, and recorded on the next'succeeding day, mortgaged the same to the Washington Life Insurance Company, and by indenture dated April 1, 1891, leased a portion of the same premises to Arthur L. Meyer, its manager, for eighteen months from said April 1, 1891, at the monthly rental of two hundred and fifty dollars, payable in advance. Subsequently to the mortgage the mortgagor became indebted to Meyer in the sum of fifteen hundred dollars for salary, and to his wife in the sum of twenty-two hundred dollars for money loaned, and in September, 1891, the president of the mortgagor and Meyer, its manager, claiming to act under authority from the mortgagor, entered into an arrangement whereby the unmatured rent reserved was appropriated and applied in extinguishment of the mortgagor’s indebtedness to Meyer and his wife. Thereafter, the mortgagee commenced its action to foreclose the mortgage, to which Meyer, who was also an obligor under a junior mortgage, was made a party, which action terminated in a judgment of foreclosure and sale in the execution of which Marcellus Hartley, the landlord and respondent in these proceedings, became the purchaser; and by deed dated and recorded January 13,1892, the mortgaged premises were conveyed to him “subject to all valid leases of said premises made prior to the 12th day of October, 1891.” Thereafter, Hartley demanded payment of Meyer, the tenant and appellant herein, of two hundred and fifty dollars for one month’s rent, which, pursuant to the terms of Meyer’s lease, would have matured on February 1, 1892, and, default having been made in such payment, pursuant to the provisions of §§ 2231 and 2235 of the Code of Civil Procedure, for such eases made and provided, instituted summary proceedings to recover possession of the demised premises.

On the trial the tenant urged the arrangement with the mortgagor, whereby all the unmatured rent reserved by his lease was credited to it in payment of its indebtedness to the tenant and his wife, in refutation of the alleged default, it being conceded that the rent maturing on February 1, 1892, was not otherwise paid; but the learned trial justice being of the opinion that the evidence was insufficient to establish the authority of the president and manager of the mortgagor to enter into the arrangement on its behalf, directed a final order to issue awarding delivery of the possession of the demised premises to Hartley, from which an appeal is taken to us.

In our opinion, all inquiry touching the authority of the officers of the mortgagor to make the arrangement above mentioned, and to the right of the purchaser under the foreclosure sale to attack such authority, is immaterial, and for the purposes of determining the question involved on this appeal it may be assumed both that, the officers mentioned did not transcend the legitimate exercise of their respective functions, and that the purchaser is not in a position to assail their authority; but while this may be so, the mortgagor’s officers did not undertake to conclude the mortgagee from any rights which he, or the successor of his interests, might have to the enjoyment of future accruing rents, nor could they have done so without the mortgagee’s or his successor’s assent.

The mortgage, whether it be regarded as an estate in, or only as a lien upon, the mortgaged premises, operated as a transfer of the reversion after the mortgagor’s default and foreclosure to which the enjoyment of the rents was but an incident, and its record was notice of that fact to the lessee; and if, despite such transfer and notice, the lessee chose to anticipate the unmat-ured rent by payment to the mortgagor without the mortgagee’s assent, he should be considered as having done so at his own peril. The acceptance of a conveyance “ subject to all valid leases of said premises made prior to the 12th day of October, 1891,” implies nothing more than a recognition by the purchaser at the foreclosure sale of leasehold estates carved out of the reversion upon performance of the conditions subject to which they were granted, and had the effect of placing the lessees in the condition of lessees under leases made before the mortgage foreclosed with the same rights, no more and no better. Lessees who became such subsequent to the mortgage foreclosed, if made parties to the foreclosure proceedings, are divested of their estates by the judgment and sale thereunder, and may be proceeded against .as trespassers; and the rents áccruing from lessees under leases made before the mortgage may be intercepted by the mortgagee or his successor in interest in the proper-proceedings instituted for such purposes. Wood’s Landlord & Tenant, 183, etc., and cases collated in the notes.

Assuming, therefore, that Myers’ lease was made before the mortgage, its record, or his possession of the demised premises, would have constituted notice to the intending mortgagee sufficient to have called upon him for inquiry concerning the lessee’s rights; and if it then appeared that the unmatured rent reserved had been anticipated by payment, the mortgagee’s rights would be properly subjected to the lessee’s right of continued possession growing out of his payment of the rent reserved. But if the unmatured rent had not at the time been anticipated by payment, then the subsequent record of the mortgage was notice to the lessee of the mortgagee’s or his successor’s right to intercept the rents upon the mortgagor’s default and foreclosure, and of this right neither the mortgagee, nor his successor in interest, the purchaser at the foreclosure sale, can be deprived unless it be with his assent.

The proposition of the tenant, if countenanced, would lead to the absurd result of enabling the mortgagor first to secure the value of his estate in the lands mortgaged by means of the sum advanced to him on the mortgage, and to secure it again by compounding the rents to mature under a prior existing lease, and to that extent diminishing the value of the mortgage security.

The order appealed from should be affirmed, with costs.

Bookstaver, J., concurs.


text:
    George S. Nicholas, Resp’t, v. George W. Venable et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Sale—Waiver of delay in delivery.
    Where the vendees after the time limited in the contract direct a shipment, acknowledge receipt, express satisfaction and retain the goods without hint of objection of tardy arrival, and offer a compromise on the full amount, these facts constitute a waiver of the right to defend an action for the purchase price on the ground that the goods were not delivered in conformity with the contract.
    Appeal from judgment on a verdict directed by the court, and from an order denying a new trial.
    Action for goods sold and delivered.
    The opinion states the case.

      J. Albert Englehart, for app’lt; J. Hampden Dougherty, for resp’t.
   Pryor, J.

The plaintiff sues as assignee, to recover the purchase price of goods sold and delivered to the defendants. The only answer to the action involved in the appeal is, that by the contract of sale the goods were to be shipped “ at the earliest possible time, so as to arrive before September 1, 1890,” that they were not so shipped and did not so arrive; and this breach of agreement the defendants allege both in defense of the action and as a counterclaim for damages.

But, it appears without contradiction, that on the 12th and 27th of September, 1890—after the date when, according to the answer, the goods should have been delivered—the defendants telegraphed the assignors to ship the goods; that after the delivery of the goods .the defendants sent the assignors an acknowledgment of their receipt, expressed satisfaction with them, and retained them without hint of objection to their tardy arrival; that on December 16th, the defendants apprised the assignors that, “ owing to the stringency of money and inability to place our commercial paper,” they had become insolvent, and suggested a settlement of the claim, but without question as to its validity or amount; that again, on January 9, 1891, they wrote the assignors, “we have scheduled your claim at $2,638.70 "—covering its entire amount— and solicited the assignors to unite with other creditors in a composition at fifty cents on the dollar. These offers being rejected, and the assignors driven to an action to collect their debts, the defendants, for the first time, interpose the objection that the goods were not delivered within the stipulated period. The fact that after the alleged time of shipment and delivery had elapsed the goods were sent at the special instance and request of the defendants, operated of itself as an estoppel against the defense of a belated delivery. At all events, that fact, coupled with the acceptance, approval and retention of the goods, without objection as to the time of delivery, and with the negotiation for a compromise of the claim proceeding on an express admission of its validity and amount,, clearly and conclusively demonstrates a waiver of the right to defend the action on the ground that the goods were not delivered in conformity with the contract.

Appellants argue, however, that, for anything apparent, they might have shown that by the contract they proposed, but were not permitted to prove, an acceptance of the goods was not to operate as a waiver of default in delivery. But the waiver is founded not alone on the acceptance, but independently and conclusively on the other facts recited as precluding the defense of no due delivery. Again, the answer is not a mere denial of the contract alleged by the plaintiff, but affirmatively avers another agreement between the parties, and of the agreement so averred it is not a term that acceptance shall not waive default in delivery.

It follows, therefore, that the learned trial judge rightly rejected evidence, if, indeed, it were tendered', of a condition in the contract that acceptance of the goods should not operate a waiver of undue delivery, and rightly directed a verdict for the plaintiff.

Further discussion of a case so plain, both on the law and the facts, would be but a useless expenditure of time and labor.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Grace Grauer, Pl’ff, v. Frank Grauer, Def't.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Divorce—Restitution of counsel fee.
    On reversal of an order awarding plaintiff, in an action for divorce, a counsel fee, motion for restitution thereof was made without notice given to the plaintiff. At that time the action had been dismissed, hut the counterclaim for a separation was not decided. Held, that restitution could not be granted under the circumstances; that the counsel fee was, in legal effect, paid to plaintiff, and she could not be compelled to pay it back without notice and an opportunity to be heard, and the attorneys are under no obligation to return it.
    Application for restitution of counsel fee paid under order of court in an action for divorce.
    The opinion states the case.

      Chauncey S. Truax, for the application; T. D. Kenneson, in opposition.
   Pryor, J.

The wife sued the husband for a divorce; the husband counterclaimed for a judicial separation, and in the action an order was made awarding the plaintiff one hundred and fifty dollars counsel fee. On appeal to the general term the order was reversed because the moving papers showed no ground for it.

Upon the order of reversal the defendant now applies to the court for restitution of the counsel fee.

It appears that no notice of the motion has been served on the plaintiff, and that the counsel fee has been partly expended for her benefit in the prosecution of the action and in resistance to the counterclaim. The action was tried, and resulted in a dismissal of the complaint on the plaintiff’s own case ; but this not until she had given evidence in opposition to the counterclaim. The decree denies a divorce to the plaintiff, -without adjudicating the counterclaim, the benefit of which it reserves to the defendant in a future action.

The question whether in an action for divorce the defendant-husband may ever claim restitution of a counsel fee paid under order of court, we need not now decide; because, upon the facts apparent on the application, no case is. presented for such restitution. The counsel fee, no matter to whom actually delivered, was, in legal effect, paid to the wife, and a restitution of it would be restitution by her. Cases infra. But, she has had no notice of this motion ; and without her day in court, she cannot be compelled to pay money for any purpose.

The legal effect being, that the wife received the money and disbursed it to her attorneys upon their retainer, they are under no obligation to return it. Langley. v. Warner, 3 N. Y, 327; Wright v. Nostrand, 53 Superior Ct., 381.

The services of the attorneys of the wife, in recompense of which the counsel fee was allowed, were rendered, not merely in prosecution of her suit for divorce, but in defense of the husband’s cross-suit for judicial separation, and that has not been determined.

Upon the whole we are clearly of opinion that no case for restitution is made ; not against the wife, because she is not a party to the proceeding ; not against her attorneys, because, in legal contemplation, they have been paid no money by the applicant; but if they have, no legal duty rests upon them to restore it.

Application denied, but without costs, as it was preferred on the suggestion of the court.

Daly, Ch. J., and Bischoff, J., concur.


author: Pratt, J.

text:
    Philira R. Pitcher, App’lt, v. William G. Hoople, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Attorneys—Lien—Settlement.
    An attorney will not be permitted to continue an action to judgment for the purpose of securing his lien where it does not appear that the settlement was intended to be hostile to his claims or that his client is unable to respond thereto, and the apparent object of the motion is to require the payment of his fees by the other parties.
    Appeal from order made on motion of defendant Hoople directing a discontinuance of the action.
    Action to partition certain real estate bought with the partnership funds of a firm composed of respondent and one Robertson, of whom the other parties are the heirs at law.
    Subsequent to the commencement of the action it was agreed by the parties that such real estate was partnership property and as such vested in respondent as surviving partner and should be sold in due process of liquidation, and it was also agreed that respondent was to take it at an agreed price as upon a liquidation, and be received quit claim deeds from all the other parties and paid the contract price to the administrators of Robertson.

      Winsor B. French, for app’lt; John P. Hudson, for resp’t.
   Pratt, J.

The parties to this action apparently became convinced that it could not be maintained and therefore settled their controversy without providing for the fees of the plaintiff’s- attorney. Thereafter an order was granted at special term discontinuing the cause.

The plaintiff’s attorney opposed the discontinuance and asks to be allowed to amend the summons and complaint in important respects and to continue the action with the purpose of establishing and perfecting his lien upon the cause of action and thereby enforcing the payment of his fees.

Where a collusive settlement of an action has been made for the purpose of defrauding an attorney of his fees, the court will sedulously seek means to prevent the fraud and protect the attorney’s rights. And it may well be that in such a case the court would grant needed amendments and allow-the action to be prosecuted to judgment.

In the present case we find no evidence that the settlement was intended to be hostile to the claims of the plaintiff’s attorney or that his rights are in fact imperilled. There is no suggestion that the plaintiff disputes or is unable to respond to the claims of her attorney.

The plaintiff makes an affidavit in support of her attorney and the apparent object of the opposition now made to the discontinuance is to require the payment by other parties to the action of the fees of plaintiff’s attorney. We do not think a case is made justifying the continuance of the action for that purpose.

Order affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


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

text:
    Felix Campbell, App’lt, v. Olivia E. P. Stokes et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Vendor and purchaser—Title—Partition—Parties.
    By the will of one M., he divided his estate into shares, and gave one to each of his children for life, with remainder to the lawful issue of such child per stirpes, and not per capita. The grandchildren, in esse were not made parties to an action for partition, in pursuance of which the premises in question were sold to plaintiff. Held, that such children were necessary parties to the partition action, and that plaintiff’s title was not a merchantable one.
    Appeal from judgment overruling demurrer to the counterclaim of the defendants, and against the plaintiff on the merits, and for the amount of the counterclaim, with costs.
    Action for specific performance of a contract for the sale of land. The answer for a counterclaim set up the facts relating to the title as stated in the opinion, alleged that it was not a marketable one, and prayed judgment that the complaint be dismissed, and that they have judgment for the amount paid on the contract, and the expenses of searching title.

      James & Thomas H. Troy, for app’lt; Wm. Allen Butler and E. D. Cowman, for resp’ts.
   Barnard, P. J.

The plaintiff agreed to sell to the defendants a piece of land No. 74 John street, N. Y., for $80,000; $5,000 was paid, and this action is brought to recover the balance. The sole question presented is whether the title of the plaintiff is merchantable. John Mortimer, Jr., owned an undivided third thereof in 1875, when he died. He left a will and six adult children. By the will this property passed as residuary estate, and it was to be divided into six shares, one for each child for life, with remainder to the lawful issue of such child per stirpes, and not per capita. If the child died without issue, he could dispose of his share by will, and if not, the testator gave his share to his, testa-. tor’s, lawful issue. Four of the six children of testator had children in 1875. A partition sale was made by action, and none of the grandchildren then in esse were made parties to it. The plaintiff’s title was acquired at this sale. These children were necessary parties in the partition action.. Moore v. Appleby, 108 N. Y., 237; 13 St. Rep., 492.

This case is very similar to the case presented by this appeal. There was a life estate by will, and remainder to children. It was held that the children were necessary parties to a partition suit.

The case of Townshend v. Frommer, 125 N. Y., 446; 36 St, Rep., 153, does not necessarily conflict with this decision. A married woman conveyed lands to trustees to pay income to herself for life, with a direction that the trustees convey at her death to her children then living. There was a mortgage on the property which was foreclosed during the life estate, and the children were not made parties to the action. It was held that the chil dren had no interest in the title while the life estate was running, and that consequently they were not necessary parties. No mention is made in the opinion of Townshend v. Frommer of the previous case of Moore v. Appleby. Other cases decided previously were distinguished, and the case of Moore v. Appleby was cited on the argument. "Under these circumstances it seems improbable that the court of appeals deemed the former case applicable to the latter one. The plaintiff’s title is not, therefore, a merchantable one, and the judgment should be affirmed, with costs.

Pratt, J.

All parties concede that if Moore v. Appleby, 108 N. Y., 237; 13 St. Rep., 492, decided in 1888, is still the law, the plaintiff must fail. But in his behalf it is argued that by Townshend v. Frommer, 125 N. Y., 446; 36 St. Rep., 153, decided in 1891, the case of Moore v. Appleby is overruled, and that by the latter decision the plaintiff is entitled to recover.

This view was ineffectually urged upon the court below. In reply, it was well said that as the former decision was not expressly overruled, we are not at liberty to regard it as overruled if any distinction can be found in the two cases.

It is enough to say upon this appeal that as the cases now stand the question involved is not so free from doubt as to justify this court in requiring a purchaser to accept the title.

It may well be that the court of appeals saw some clear distinction between the two cases, but failed to point it out in the opinion.

Judgment affirmed, with costs.

Dykman, J., concurs.


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

text:
    Henry Henken, App’lt, v. Alice Monaghan, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Benefit societies—Change of appointment—Competency of insubed.
    Plaintiff and his wife insured their lives, making each other beneficiaries, respectively, and plaintiff paid all the assessments. While plaintiff was sick in hospilal, and a few hours before the wife’s death, the latter made a change in the appointment to respondent, her sister, who had not visited her for nine years before. The appointment was witnessed by the president and secretary of the company, one of whom asked her if she knew them, and she said she did, but there was evidence that about that time she said yes to every question, and her physician testified that her condition was bad at„that time. Held, that the question of her competency to make the change was one for the jury, and that it was error to direct a verdict for the respondent.
    Appeal from judgment in favor of Alice Monaghan for costs and awarding her the sum of $469 insurance moneys held by the Provident Associntion of Newtown, L. I.

      John Fleming, for app’lt; B. W. Downing, for resp’t.
   Pratt, J.

This is an appeal from an order made at circuit directing a verdict for plaintiff in an action to recover money upon a so-called life insurance policy, and to set aside a pretended _ appointment made to the respondent by the deceased beneficiary under the policy.

The circumstances under which the appointment was obtained by the respondent made it a proper case to be submitted for determination by a jury.

The plaintiff was absent from home, and his wife, the beneficiary, was so ill that she died a few hours after the appointment was executed.

It also appeared that the respondent, who was a sister of the deceased, although living but a short distance, had not visited the deceased for about nine years, until three days before her death.

It may well be that a jury might find that the deceased could not have been in her right mind when she executed the appointment, or that she, in her weak condition, yielded to undue influence exercised by the respondent.

This view is strengthened by the fact that the plaintiff paid all the assessments on his wife’s policy and he and his wife had each appointed the other beneficiaries under like policies.

The doctor who attended her testified she was in a very bad condition, and other witnesses state that during the last two days of her illness she did not speak except to say “yes.”

Under such circumstances we think it was error to direct a verdict. .

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

Barnard, P. J.

The case shows that Henry Henken and his wife, Mary Henken, each at the same time became members of the Provident Association of Newtown, a benevolent association incorporated under the laws of New York. Each appointed the other the beneficiary to receive the benefits in case of the death of the member. Mary Henken died early in the morning of March 21, 1891, and in the evening before, and late in the evening, she revoked the appointment of her husband as beneficiary and substituted the defendant, Alice Monaghan, in his place. The question is whether there was any evidence to go to a jury as to the competency of the deceased to make this revocation. The evidence of incompetency was sufficient to go to the jury. The instrument changing the beneficiary was witnessed by the president and secretary of the association. The president asked the'deceased if she knew Mr. Murphy, and she said she did.- She was» asked if she knew a Mr. Freeman, and she said she did not. The deceased stated that she wished to make the transfer to her sister by the same answer which she made to the two other questions, “yes.” No other test of her capacity was made The physician testifies against her capacity and a Mrs. Schaup testified that in the-morning of the day before the death of Mrs. Henken she did not recognize her, an old acquaintance, and would answer “ yes ” to everything which was said to her. Mrs. Butzner, another old acquaintance, gave evidence tending to show total incapacity to understand anything which was said to her. The proof of the facts surrounding the execution of the paper is not very explicit. The deceased left a young daughter and there is no reason why an understanding, capable mother, deprived her of this little property, all she had.

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

Dykman, J., not sitting.


author: Dykman, J.

text:
    Thomas H. Robbins, App’lt, v. Edwin Beers et al., Resp’ts.

      (Supreme Court, General. Term, Second Department,

      Filed December 12, 1892.)

    Foreclosure—Junior mortgagees not made parties.
    The purchaser at a sale on a foreclosure to which junior mortgagees were not made parties cannot maintain an action to compel them to pay his mortgage and improvements made by him or be foreclosed of all right of title and equity of redemption. The rights of the purchaser may be asserted and protected in any action such mortgagees may institute to foreclose, but he cannot compel them to pay his mortgage and improvements. Their rights remain unimpaired by the foreclosure.
    Appeal from judgment dismissing complaint.
    Action of strict foreclosure.

      Francis S. Turner (T. G. Barry, of counsel), for app’lt; G. G. & F. Reynolds, for resp’ts.
   Dykman, J.

Spencer Aldrich held a mortgage upon the real property described in the complaint in this action, which was the first lien thereon. Beers and Ressigue held a mortgage upon the same premises which was a second lien thereon.

Aldrich commenced an action to foreclose his mortgage without making the defendants Beers and Ressigue parties thereto. The action proceeded to judgment and sale. Aldrich became the purchaser at the sale and assigned his bid to the plaintiff in this action, who received the referee’s deed, went into possession and expended over $20,000 in permanent improvements.

This action is commenced to compel the defendants, Beers and Ressigue, to pay the amount of the first mortgage and the money expended by the plaintiff for improvements upon the property.

The cause was tried at special term and decided against the plaintiff, and he has appealed from the judgment entpred against him upon such decision.

We are aware of no principle of law which will permit the plaintiff to take the relief he desires in this action.

The defendants were not made parties to the foreclosure suit and they stand with their mortgage as if no such suit had been commenced.

They hold a second mortgage upon the premises with their rights as such holders unimpaired, but certainly no 'additional burden or obligation was imposed upon them by the foreclosure action.

Whatever the rights of the plaintiff may be, they can be asserted and protected in any action the defendants may institute to foreclose their mortgage, but he cannot now compel them to pay him for his mortgage or his improvements.

They may or may not foreclose their mortgage. If they do not, they incur no liability. If they do, they can detract nothing from the rights of the plaintiff.

They certainly have the right to remain inactive, and that is all they have done so far.

The judgment should be affirmed, with costs.

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


author: Barnard, P. J.

text:
    John McDonough, Pl’ff, v. Peter H. Walsh, Def't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Master and servant—Negligence.
    While plaintiff was engaged in discharging the cargo of a boat by loading iron in buckets which were raised by steam, one of them was overturned and plaintiff was struck by the iron and injured. There was no proof of defects in the appliances used; the only cause of the accident being that the bucket was not raised sufficiently to clear the top of the hatchway. Held, that as the appliance was safe when properly used, the master was not liable and plaintiff was properly nonsuited.
    Exceptions ordered heard at first instance at general term, after a nonsuit.
    Action for injuries alleged to have been caused by the negligence of defendant.

      Chas. J. Patterson, for pl’ff; Hobbs & Gifford, for def’t.
   Barnard, P. J.

There is no proof of neglect upon the part' of the master. The plaintiff was an employee whose place was in the hold of a steamship. His duty was to fill the buckets with short bars of iron. The loaded bucket was raised by steam. When the bucket reached the top of the combings of the top hatch, it was, by another employee, pulled sideways and dumped| on the dock. There is an entire absence of proof tending to show any defect in the appliance which was used. The bucket was strong and the rope sufficient. The only cause of the accident was that the bucket was not raised sufficiently to clear the top of the hatchway and thereby' the bucket was overturned. The method of unloading vessels was a common one. “It was an ordinary and customary way to unload heavy freight,” as was stated by the plaintiff upon the trial. The mode of using the hoistway apparatus was changed a little while before the accident. The bucket had, for some reason, dumped its load. It was a common occurrence for the bucket to turn out its load if it hit anything. The cause of the accident in question is not very clear to me from the evidence. The appliance was safe when it was properly used. The plaintiff was, therefore, properly nonsuited. Cregan v. Marston, 126 N. Y, 568 ; 38 St. Rep., 428.

Exceptions overruled and judgment for defendant on the non-suit, with costs.

Dykman and Pratt, JJ., concur.


text:
    Henry Helmke, Resp’t, v. The New Jersey & New York Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Specific performance—Mutual covenants.
    Plaintiff contracted to sell certain land to defendant for a nominal sum for the use of its road, in consideration of its agreement to build and maintain a lawful fence on each side of its road. The fences were not built nor the deed given. In an action of ejectment, defendant asked for specific performance, which was decreed upon defendant fencing its road and paying damages for its failure to do so. Held, no error; that the engagements of the parties were mutual, and to be simultaneously performed.
    Appeal from judgment decreeing specific performance of a contract for the sale of land upon defendant paying $250. damages and erecting fences on both sides of the land in question.

      De Forest & Weeks (F. L. Hall, of counsel), for app’lt; W. J. Groo, for resp’t.
   Barnard, P. J.

The justice of the decision appealed from cannot be assailed. The Hackensack & New York Extension Railroad Company, a New Jersey corporation, was authorized to extend its road in this state. This railroad company built its road over the plaintiff’s lands in 1871, and in 1872 commenced running the road. The Hackensack Company had, in 1870, mortgaged its road to John S. Fox and others. In 1873 the Hackensack Company consolidated with another company and became the defendant company, and in 1880 acquired the mortgage title. The .defendant’s lands were taken under an agreement to sell for a nominal sum, and on agreement that the railroad company would build and maintain a lawful fence on each side of the railroad. The plaintiff owned on each side of the railroad company’s tracks. The ■ original company and its successors has had the land since about November, 1871. No fence has been built, no deed has been given. The use of the plaintiff’s land has been very much impaired by the lack of the fences. The plaintiff brings an action in ejectment. The defendant asks a specific performance of the contract. The court granted a decision for a specific performance of the contract by the execution and delivery of a deed, and upon the payment of $250 to the plaintiff, and forthwith fencing the property, with costs to plaintiff. The proof showed a much greater loss to plaintiff by the absence of fences than was allowed by the contract By the true reading of the contract, the engagements of the parties were mutual, and to be simultaneously performed, by building the fences, otherwise the railroad company would get the land without payment of the consideration. The whole agreement is to be taken and read together in view of the subject of it, and in view of what was to be performed under it. The giving of a deed was no more a condition subsequent than is the building of the fence. The question is of no importance, however. The defendant asks for a specific performance, and it is granted upon the performance of the contract in respect to the fence, and upon payment of damages for its failure to do so heretofore. None of the evidence shows the plaintiff’s injury to be so small as the sum allowed by the court.

The judgment should be affirmed, with costs. /

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


text:
    Dennis Moxley, Resp’t, v. The New Jersey & New York Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892 )

    Covenants—To fence—Contract for sale of land.
    A covenant by a railroad company in a contract for the purchase of land, that it will build and maintain a fence on each side of its track, is one that runs with the land, and a grantee of the vendor may maintain an action for a breach thereof.
    Appeal from judgment for the recovery by plaintiff of $250 damages, and that on defendant’s erecting fences on both sides of its road and paying the money judgment plaintiff execute a deed of the premises in question to defendant.
    Action of ejectment. Defendant asked specific performance of a contract for sale of the land executed by plaintiff’s grantor.

      De Forest & Weeks (F. L. Hall, of counsel), for app’lt; W. J. Groo, for resp’t.
   Barnard, P. J.

The case of Helmlce against the defendant is similar, in principle, with this case, and would be covered by the decision in that case except that the person who gave the consent to the railroad, one Westervelt, died, and his lands were sold. The plaintiff bought the land in question with full knowledge that the defendant was in possession. The covenant runs with the land. It is not only to build, but to maintain th * fence on each side of the track that is secured by the contrae j The land under the road of the defendant was sold to plaint I iff, of course, subject to the performance of the original agreement to sell. The covenant to maintain a fence, even if it needs a new one, is an obligation which the defendant owes to Moxley and this obligation has been broken, causing a large loss to the plaintiff since he acquired title in 1885. The plaintiff may, therefore, maintain the action, although he purchased the land in 1885. Blain v. Taylor, 19 Abb., 228; chap. 282, Laws of 1854, § 9.

Judgment affirmed, with costs.

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


text:
    Sumner A. Mason, App’lt, v. Emma J. Mason, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Husband and wife—Taking of husband’s property by wife.
    Where a wife abandons her husband and takes with her his property, he may maintain an action against her therefor.
    (Dykman, J., dissents.)
    Motion for a new trial on exceptions ordered to be heard at this general term in the first instance.
    After the plaintiff’s case had been opened defendant’s counsel moved to dismiss the complaint upon the facts admitted by plaintiff.
    The facts stated by plaintiff’s counsel on which the motion was made were:

      1. That plaintiff and defendant had, long prior to the time referred to in the pleadings, been lawfully married, and that there had been no decree of separation or divorce since that time.
    2. That prior to the 1st day of May, 1888, the defendant had abandoned the plaintiff and had continued that abandonment ever since.
    3. That on or about the 1st day of May, 1888, the defendant unlawfully took possession of certain goods belonging to plaintiff and unlawfully converted them to her own use, and that such goods were worth $2,000.
    By permission of the court, in order to raise fully the question of law presented, plaintiff made offer of proof of abandonment of plaintiff by the defendant. This proof was excluded as immaterial, and plaintiff excepted.
    On these facts defendant’s counsel moved to dismiss the complaint on the ground that a husband could not sue his wife for conversion even though she had abandoned him before the conversion.
    The court granted the motion of defendant. Exceptions were taken by plaintiff to the exclusion of his evidence and to the direction of the court.

      W. C. Beecher, for app’lt; Alexander Cameron, for resp’t.
   Barnard, P. J.

The plaintiff is the husband of the defendant. The complaint charges that the defendant took valuable property from his possession and converted and disposed of the same to her own use. The case must be considered as if it was the fact that the defendant abandoned the plaintiff. The plaintiff offered proof tending to show it, and it was rejected. It was decided by this court that if a wife took with her the husband’s property, he could bring an action against his wife. .Berdell v. Parkhurst, 19 Hun, 358.

The court of appeals has repeatedly decided that a husband is liable for his wife’s torts, and this action was dismissed upon the authority of Mangam v. Peck, 111 N. Y., 401: 19 St. Rep., 78; Fitzgerald v. Quann, 109 N. Y., 441; 16 St. Rep., 395.

The cases do not conflict necessarily with Berdell v, Parkhurst. The reasoning by which such a result is reached is to the effect that a husband has no remedy because he is liable as to a stranger to an action for a conversion by his wife of the stranger’s goods. The wife would be liable with her husband to the stranger for her conversion by virtue of the old rule of the common law not necessarily repealed before chaps. 51 and 248, Raws of 1890.

The wife could hold a separate estate at the time of the wrongful act. If she could increase it by taking wrongfully her husband’s property and go away with it, and he have neither action or relief against her for the recovery back of the same, it would be a case of great hardship. The court of appeals in Wood v. Wood, 83 N. Y., 575, held that a wife could bring an action of ejectment against her husband to recover her pi'operty unlawfully taken from her. The remedy should be even between them.

The exceptions should, therefore, be sustained and a new trial granted, costs to abide event.

Pratt, J., concurs; Dykman, J., dissents.


text:
    The Village of Jamaica, App’lt, v. The Long Island Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Railroad—Street crossings.
    By the charter of the plaintiff a railroad company is required to cause a highway to he taken across its track “as shall be most convenient and useful for public travel,” and the provisions of the general railroad law are made applicable. Held, that the railroad company has the eleciion of methods of carrying a new street across, and unless the reasonable usefulness of the highway is infringed, the selection of the company will not be interfered with.
    Appeal from order denying a motion made by the plaintiff for an order requiring the defendant corporation to take Brenton avenue, a new public highway laid out in Jamaica Village, across the tracks of defendant's railroad at grade, and enjoining from taking said highway across its tracks by means of a bridge.
    The defendant operates a steam railroad passing through Jamaica Village. At the point in question the company uses four tracks. The crossing is a short distance east of the station, and the entire traffic over its main lines and on a number of its branches passes and repasses this locality.
    This is a new crossing, not in existence prior to the opening of the street in June, 1892.
    The papers show that a notice was served on defendant on June 10, 1892, requiring it to take the highway over its tracks. This notice was served under the act of 1853, chap. 62, Laws of 1853, and under the provisions of that law it became the duty of the-corporation to take the highway over its tracks.
    “ Sec. 2. It shall be the duty of any railroad corporation across whose track a street or highway shall be laid out as aforesaid, immediately after the service of said notice, to cause the said street or highway to be taken across their track as shall be most convenient and useful for public travel, and to cause all necessary embankments, excavations and other work to be done on their road for that purpose. And all the provisions of the act passed April 2,1850, in relation to crossing streets and highways already laid out by railroads, and in relation to cattle guards and other securities and facilities for crossing such roads, shall apply to steeets and highways hereafter laid out.”
    Under the provisions of the act, on July 26, 1892, the defendant procured from the county judge of Queens county an order extending the time to do the necessary work of taking the highwav over its tracks for thirty days.
    Prior to the expiration of this period plaintiff commenced this action, claiming that defendant intended to take the highway across the tracks by an over head bridge instead of making a new grade crossing as requested by plaintiff.

      There is no controversy over defendant’s intention. It does intend to bridge this crossing instead of bringing the street over at grade, unless restrained by the court.
    The expense to defendant of a grade crossing would be bat $250; to take the street over by bridge requires an expenditure of more than $6,500, the whole of which must be borne by de-. fendant.
    ^ Its reasons for this action and this additional outlay are clearly stated in the affidavit of Mr. Morton, the vice-president of defendant.
    “ It was determined that the safety of the public demanded the construction of a permanent bridge at this point rather than a crossing at grade.”
    The answering affidavit cites the law in force in adjoining states prohibiting grade crossings. The railroad commissioners of this state have frequently protested against grade crossings as dangerous to life.

      Henry A. Monfort, for app’It; Wm. J. Kelly, for resp’t.
   Barnard, P. J.

The village of Jamaica has laid out a new highway which crosses the Long Island R. R. at grade. The question presented is whether the railroad can carry the street over its track at an elevation of some eighteen feet. By the charter the village is bound to cause a highway to be taken across its track “ as shall be most convenient and useful for public travel.” Chap. 62, Laws of 1853.

This charter provides that all the provisions of the general railroad law¡ chap. 140, Law's of 1850, shall apply to the village, and that requires the crossing to be over or under the track of the railroad 11 as shall be most expedient,” provided that the usefulness of the highway be not unnecessarily impaired. There is no difference between an old highway which is crossed by the railroad and a new highway which crosses the railroad at grade. The general law regulated crossing highways existing. The village charter requires all new roads to be taken across the track as shall be most convenient and useful for public travel, and applies all the provisions of law in relation to crossing streets applicable. The railroad company has the election of methods, and unless the reasonable usefulness of the highway is infringed, the selection of the company will not be interfered with. People v. N. Y. Central, etc., R. R, 74 N.Y., 302.

The order refusing an injunction should, therefore, be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


text:
    In the Matter of the Probate of the Will of Henry Gagan, Deceased.

      (Supreme Court, General Term,, Second Department,

      Filed December 12, 1892.)

    1. Will—Attorney who is subscribing witness competent to testify.
    An attorney who, at the request of his client, signs the will of the lattei as a witness is competent to testify on its probate.

      2. Same—Executor.
    One named as executor in a will may testify to its execution if witnessed by him.
    Appeal from decree of the surrogate of Orange county, admitting will to probate.
    The will of the deceased is dated January 25, 1892. One of the witnesses to its execution, Howard Thornton, is an attorney at law, and he prepared the will. He is also named as one of the executors. The deceased died February 21, 1892, and proceedings for the probate of the will were commenced April 14, 1892.
    Three grounds were urged against the probate of the will:
    1. That Thornton, being the attorney who drew the will, was incompetent to testify as to its execution under § 836 of the Code.
    2. That Thornton, being named as executor, and being a witness, was incompetent to testify, and also ineligible to qualify.
    3. That testator was of unsound mind and incompetent to make a will.
    Thornton was examined as a witness on May 26, 1892.

      J. Lewis Strahan (E. A. Brewster, Jr., of counsel), for app’lt; Howard Thornton, for resp’t.

       Affirming 47 St. Rep., 444.

   Barnard, P. J.

The testator made his will in January, 1892. Howard Thornton, an attorney in the supreme court, drew the will, supervised its execution and was a witness to it as well as one of the executors of it. Objection was made that he was not a qualified witness. Section 835 of the Code originally provided that an attorney should not disclose a communication made to him in the course of his employment. This section was subsequently amended by a new section, 836, which permitted a waiver of the disclosure. The court of appeals has held in respect to proof by an attorney of a delivery of a deed by instruction of a client, that he was a competent witness. That the communication was made to be communicated. Rousseau v. Bleau, 131 N. Y., 177 ; 42 St. Rep., 871.

In the Matter of Coleman, 111 N. Y., 220, 19 St. Rep., 501, the court of appeals applied the same rule to attorneys who, at the request of a client testator, witness his will.

One named as an executor in a will may testify to its execution if witnessed by him. Children's Aid Society v. Loveridge, 70 N. Y, 387.

The decree should be affirmed, with costs.

Dykman and Pratt, JJ„, concur.


text:
    St. Thomas’ Church, Pl’ff, v. The Board of Excise of the City of New York, Def’t.

      (Supreme Court, General Term, First Department,

      Filed November 10, 1892.)

    Excise—Measurements—Laws 1893, chap. 401.
    Under chap. 401, Laws 1892, the measurement is to be taken from the principal entrance to the church building to the principal entrance to the saloon or room where the liquor is to be sold, and not the principal entrance to the building in which the saloon is situated.

      Motion for an injunction pending the action.

      Peter R. Gatens, for the motion ; Edward Browne, opposed.
   Per Curiam.

In providing that under certain circumstances no person shall be licensed to sell liquor in any building which shall be on the same street as a building occupied exclusively as a church or schoolhouse, and within 200 feet thereof, the legislature has directed that “ the measurements shall be taken between ’the principal entrances of the buildings used for such church or school purposes and the place for which an application for a license has been made.” The court is of opinion that it is the principal entrance to the saloon or room in which liquor is to be sold which is here contemplated, and not the principal entrance to the building in which the saloon is situated. It is not the building which is spoken of, but the “ place” for which an application for a license has been made. The principal entrance to the building might well be many feet removed from the entrance to the saloon. Upon the facts in the present case it appear^ that the principal entrance to the building is not the principal entrance to the place for which a license is sought, and that the distance between the principal entrance to the church and that of the saloon is more than 200 feet.

The motion must, therefore, be denied.

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


author: O'Brien, J.

text:
    The People, Resp’ts, v. George Z. Bartholf, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Bottles—Deposit no defense.
    In a prosecution under the bottle act it is no defense that the owners received a deposit on the bottles from the person to whom they delivered them.
    3. Same—Certificate.
    The statute requires no acknowledgment of the certificate filed with the county clerk and secretary of state, and the same is admissible in evidence although defectively acknowledged.
    3. Same—Evidence.
    In such a prosecution the bottles found on defendant’s premises are admissible in evidence, as they are competent proof of the crime charged.
    4. Same—Burden of proof.
    In such case the burden of proof is upon the defendant to show that he had the written consent of the owners or had purchased the bottles of them.
    5. Same—Charge.
    On tlie trial of an indictment under the bottle acts the court refused to charge on request that if the fury found that defendant had at any time prior to the indictment bought bottles of complainant, there was such reasonable doubt, in the case that they should find for defendant. Held, no error ; that whether there was a reasonable doubt was a question of fact.
    Appeal from a judgment entered in the court of general sessions of the peace of the city and county of New York, against defendant for an alleged violation of section 2 of chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, upon a conviction for having in his possession three bottles with the following words and figures blown or impressed thereon, to wit: Beadleston and Woerz, and two human figures with a shield between them and an eagle above the shield.

      A. W Tenney, for app’lt; Thomas C. R Rcclesine, for resp’ts.
   O'Brien, J.

The appellant was convicted and sentenced in the court of general sessions for violating chapter 377, Laws 1887, as amended by chapter 181, Laws 1888. These acts are the ones commonly known as the ‘‘Bottle Acts.” Upon the trial it appeared that Beadleston & Woerz was a corporation duly organized and existing under the laws of the state of New York for the purpose of manufacturing and selling malt liquors ; that prior to the acts mentioned in the indictment said corporation filed with the secretary of state and the county clerk a description of the names, marks and devices used by it upon its bottles, and caused these descriptions to be published, as required by these statutes; that the defendant was a dealer in second-hand bottles; that three bottles having the names, marks and devices of said corporation upon them were found in the possession of the defendant at the time and place mentioned in the indictment. Most, if not all, of the questions requiring consideration have been passed upon by this court in the cases "of People v. Cannon, 43 St. Rep., 427, and People v. Quinn, 44 St. Rep., 920. In these cases it was held that the law passed to protect the owners of bottles is constitutional, that an indictment charging the crime in the language of the statute, as here, was sufficient, and that the fact that the defendant purchased the bottles in the due course of business, and without knowledge as to the true owner, is not a defense upon an indictment under such statute. It was also held that good faith is not a defense, and that the claim is untenable that the act places unreasonable restrictions upon the lawful business of dealers in bottles. Upon the trial much stress was laid upon the fact that Beadleston & Woerz had received a deposit on the bottles, and it was urged that this fact in some way conferred title on the persons to whom they were delivered, which would give the latter a right to sell the same to defendant, and thus make him a purchaser in good faith, and constitute a defense. In Westcott v. Thompson 18 N. Y., 364. this was disposed of adversely to appellant’s claim, and it would require, apart from that authority, but little reasoning to show that a person by requiring a deposit on his property for the-purpose of securing its return, even though such deposit should amount to the value or more than the value of the property, does not confer upon the person to whom the same is delivered under an agreement to return it a title such as would give him the right to sell it to another.

It is insisted that the court erred in admitting in evidence the certificate filed with the county clerk, and in the office of the secretary of state, upon the ground that the same was defectively acknowledged. The statute, however, required no acknowledgment of the certificate, but only exacted that the certificate should be filed; and there is no force, therefore, in the suggestion that, because they failed to duly acknowledge a paper which the statute did not require to be acknowledged, it could not be introduced in evidence because of such defective acknowledgment

We do not think that the court erred in admitting the three bottles in evidence, the same being competent proof of the mime charged in the indictment. ISTor do we find error in the court’s ruling upon the evidence that it was proven that a certificate was filed in the county clerk’s office and in the secretary of state’s office, and that such certificate was that of the corporation of Beadleston & Woerz.

Another error claimed relates to the court’s holding that the burden of proof was on the defendant to show that he had the written consent of Beadleston & Woerz to traffic in such bottles, or had purchased the same of them. It is true that, apart from any express statute upon this subject, if it had been essential to the prosecution to prove that part of the indictment affirmatively which charges that the defendant did not have such consent, and did not purchase such bottles of Beadleston & Woerz, the appellant would be right; but it will be seen by reference to § 3, chap. 181, Laws 1888, that the mere fact that the bottles were found in the possession of the defendant, who was other than the manufacturer or owner, without the written consent of the owner, is of itself made presumptive evidence of unlawful possession.

These questions thus disposed of were presented, not only during the trial, but upon the motion to dismiss the indictment and direct an acquittal for the defendant at the end of the People’s case, again when the defendant rested, and again upon the motion to set aside the verdict as contrary to law and against the weight cf evidence. It in no way added to the force or cogency of these contentions to repeatedly renew them at different stages of the trial, and having been disposed of they require no further consideration.

The remaining error claimed relates to the refusal of the court to charge as requested, “that if the jury find that the defendant bought, at any time prior to this indictment, bottles of the complainant, there is such a reasonable doubt in the case that they .should find for the defendant.” This was declined, and properly so, upon the ground that it was a question of fact whether there was reasonable doubt or not Upon the whole case, therefore, we are of opinion that the judgment of conviction should be ■affirmed.

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


author: Van Brunt, P. J.

text:
    Thomas F. Burke, Adm’r, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    K AILR O AD—NbGLIQ ENCE—E VIDES CE.
    In an action for the death of plaintiff’s intestate while she was crossing

      defendant’s track, where the question is as to defendant’s negligence in running its train, and in the omission of the ordinary signals, the admission of evidence to the effect that other persons haa been killed at that crossing is error.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Frank Loomis (D. W. Tears, of counsel,) for app’lt; W Bourke Cockran and Wales F. Severance, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover $5,000 damages alleged to have accrued to the plaintiff and his sister from the death of their mother, Joanna Burke, alleged to have-been caused by reason of the striking of Mrs. Burke by one of the defendant’s passenger trains, injuring her so that she died. The evidence shows that the deceased had lived ever since the road was built upon the east side thereof, and upon the evening upon, which the accident happened she had left her house, crossed the railroad, and gone towards a saloon on the opposite side of the track, some distance to the south, and upon her return one witness testified that he saw her going along the highway on the west side of the track, and when she got within one step of the track she put her head forwards, and looked both ways, up and down, and then took one sten. and when she was between the rails was hit by the engine. It further appears that the saloon spoken of was about 171 feet from the railroad, and that to a person on the highway an approaching train would become visible while a perso l was thirty to thirty-five feet from the nearest rail, and the train between 500 and 600 feet distant, and would remain visible while such person or train, or both, traversed the respective intervening distances. Some of the witnesses for the plaintiff testified that the bell was not rung, nor the whistle blown, and that the train was running rapidly, an 1 the crossing was unguarded, although it appeared that there was a city ordinance requiring the crossing to be guarded by men and gates at all times.

The defendants offsred testimony tending to show that the train was not running rapidly, that the headlight was lit and bright, and that the bell was rung. The jury found a verdict in favor of the plaintiff, and from the judgment thereupon-entered, and from the order denying motion for a new trial, this appeal is taken. It does not appear necessary, in the disposition of this appeal, to attempt to harmonize the various and diverse decisions of the court of last resort in cases of this description ; and, therefore, we will not consider the various cases to which our attention has been called, seeming to establish upon the one side that no recovery could possibly be had in this action under the circumstances above mentioned, and upon the other that the questions of the defendant’s negligence, and the deceased’s want of contributory negligence, were properly left to the jury. Neither is it necessary for us to consider the exception to the propositions of law charged by the court at the request of the-plaintiff, some of which seem to have been open to criticism; but in consequence of the general character of the exception upon-the part o£ the defendant, we do not think that any questions as to them are presented to us for review.

The court, however, erred in permitting one of the witnesses for the plaintiff to testify, against the defendant’s objections and exception, that he had known of other persons being killed at that crossing. It is true that the court stated that the testimony was allowed for the purpose of showing notice brought to the company that a similar accident had occurred at that place., But this in no manner remedied the evil. The crossing at which this accident happened was an ordinary highway crossing of a double-track road, and the determination of the question of the defendant’s negligence in running its train, or the negligence of the deceased in contributing to the accident, could not in any way be aided by evidence of this character. There is a class of cases where such evidence is admissible. But they all relate to some defects of structure, which defects were brought- to notice by reason of the happening of accidents resulting from such defects; and it has been held in those cases that such evidence was competent for the purpose of bringing home to the common carrier notice that the structure, although apparently safe, was in reality insecure and improper for the transportation and protection of passengers. In the case at bar the question was as to the negligence of the defendant in the running of its train, and in the omission of the ordinary signals which a person crossing the railway is entitled to expect will be given of the approach of a train ; and whether these precautions had been taken at other times, or whether some person at some other time bad by his own negligence met his death, was a matter of no importance in the consideration of the questions to be investigated upon the trial of the case at bar. We think, therefore, that for the error to which attention has been called the judgment and order should be reversed, and new trial ordered, with costs to appellant to abide event.

Lawrence, J., concurs.


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    Robert G. Ingersoll, App’lt, v. Amzi C. Dixon, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Pleading—Irrelevant defenses.
    Objections to sufficiency of defenses should be raised by demurrer and not by motion to strike out.
    Appeal from order denying motion to strike out the second, third and fourth defenses of the answer as irrelevant, redundant and scandalous, in action for libel.

      R. H. Griffin, for app’lt; W. C. Beecher, for resp’t.
   Van Brunt, P. J.

We see no reason upon this appeal for interfering with the order made by the court below. The objections made to the defenses sought to be stricken out seem to,be principally that they were insufficient as such defenses. We are of -opinion that the more orderly course requires that such objections should be raised by demurrer, rather than by motion to strike out. The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs._


author: Barrett, J.

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    Francis Eggleston, Pl’ff, v. George W. Rumble, Def’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Stocks—Wager contracts.
    Defendant agreed to purchase stock for plaintiff and sell the same for the highest price announced that day if plaintiff so ordered, paying him the difference. Plaintiff gave him a writien order to buy, paying part in cash. Upon the purchase being made plaintiff agreed to leave the stock with defendant until paid for, and directed him to sell when it reached a certain price. Such price has not been reached. In an action to recover the deposit, Held, that there was nothing to show that the intent was not to take or deliver the stock, but simply to pay differences, and that plaintiff was not entitled to recover.
    Submission of a controversy without action, under § 1279 of the Code of Civil Procedure, the plaintiff claiming that the transaction disclosed in the case was a gambling transaction, and that he has a right to recover the sum of $800, deposited by him with the defendant to be applied upon an account of the purchase of the stock ordered.

      William H. Reed, for pl’ff ; Palmer, Boothby & Warren, for def’t.
   Barrett, J.

The plaintiff claims the return of $800, which he gave to the defendant to be applied upon the purchase of certain shares of stock. The‘claim is based upon the theory that the transaction was in the nature of a bet or wager; but there is nothing in the agreed statement of facts to sustain the plaintiff’s contention, nor to justify the vituperation with which his brief abounds. The defendant had an office in this city, in which he was carrying on the business of buying and selling mining stocks. In that office there was an instrument called a “ phonograph,” which announced the prices and fluctuations of the stocks in which the defendant dealt. The defendant informed the plaintiff that (we quote from the agreed case), “ the owners of these stocks dictated to a phonograph at their office the prices at which they were buying or selling ” such securities, and then sent the cylinder to him, “ accompanied by the certificates of stock that they would sell at the price they had dictated upon such cylinder.” The defendant also told the plaintiff (to quote again from the agreed case) that “if he (Eggleston) purchased any of these stocks, and the prices should thereafter be announced by the phonograph at a higher figure than the price at which he might buy them, he (Eumble) would sell any stocks that Eggleston had bought, if Eggleston so directed, at the highest price that should be announced by the phonograph, and would pay Eggleston the difference in cash, less one quarter of one per cent, for his commissions as a broker.” Thereupon the plaintiff gave the defendant an order to buy 8.000 shares of Maple mining stock at ninety cents per share. This order was in writing. Accompanying its delivery the plaintiff gave the defendant $800, to be applied upon account of the purchase. Upon the same day the defendant notified the plaintiff in writing that he had executed the order, and he also told him that the stock was ready for delivery. Plaintiff replied that he had not money enough to pay for the shares, but that he would leave them with the defendant until he paid him. He then directed the defendant to sell the stock if the price should advance to ninety-eight cents per share. The stock advanced, however, to but ninety-six cents per share. It then declined to eighty-four cents, and subsequently to seventy-nine cents, per share. Thereupon the plaintiff demanded the return of the $800, which the defendant refused, but said he was ready to deliver the shares upon payment of the balance of the purchase price. All this may have been, as the plaintiff vehemently insists, a device to evade the statute, but such a conclusion cannot be drawn merely from a peculiar or unusual method of transacting business. Upon the facts before us, the transaction was apparently legitimate, and we cannot judicially infer the contrary upon mere suspicion. Story v. Salomon, 71 N.Y., 422.

The plaintiff seems to attribute to us powers of divination, and seeks the exercise of such powers, rather than the application of the rules of law to unambiguous facts. It is not of the slightest consequence whether the quotations for these stocks came to .the defendant through a phonograph, or through what is called a “ ticker," or by means of written communications from the owners. The order was to purchase at ninety cents, and such oulcr was duly executed. The subsequent order was to sell when the stock was quoted (in the manner agreed upon) at ninety-eigl t cents. It has not been quoted at ninety-eight cents per share, and consequently the defendant has not been able to execute the order. He thus holds the shares for his principal, and is ready and willing to deliver them to such principal upon payment of the balance of the purchase money. At that point the plaintiff neither offers such balance, nor directs the defendant to sell the shares at the actual quotations. Upon no principle other than the inherent illegality of the entire transaction can he ignore the defendant’s rights and his own obligation, and demand a return of the sum paid upon account. The burden of establishing such illegality was upon him, and that burden has not been met. We find no fact in the agreed case which would justify the conclusion that the intent was not to take or deliver the shares, but simply to pay differences. Still less is there any statement of fact which raises even an inference of actual cheating. It follows that there should be judgment for the defendant, with costs.

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


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    In the Matter of The Metropolitan Elevated Railway Co. et al.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Condemnation proceedings— Stipulation.
    In order to procure a stay of injunction pending an_ appeal therefrom, the railroad companies entered into a stipulation providing that they would not institute or prosecute any proceedings to condemn the property pending the stay, and that they would contest the plaintiff’s rights only in the

      action. The judgment was afterwards reversed, and a new trial granted. Held, that the stipulation was clear and unambiguous, and the companies were thereby precluded from taking condemnation proceedings.
    Appeal from order denying application for the appointment of commissioners of appraisal.

      Davies & Rapallo (Julian T. Davies and Alex. S. Lyman, of counsel), for app’lt; W. G. Peckham, for resp’t.
   O'Brien, J.

The American Bank-Note Company brought an action against the railway companies for an injunction and damages. This action proceeded to judgment of injunction and for damages, from which defendants appealed to the general term of this court. Pending appeal, the railway companies applied for and obtained a stay of the injunction, upon condition of their entering into the following stipulation, which was duly made: “As a condition of obtaining the stay of the injunction contained in the judgment herein, imposed upon these defendants by an order entered herein on the 8th day of October, 1890, and solely under compulsion of the said order, the defendants above named, and each of them, hereby stipulate that they, or either of them, will not institute or prosecute any proceedings to condemn the property described in the complaint herein, pending the stay granted by this order; and that they, and each of them, will contest the plaintiff’s rights only in this action, and that they will prepare a case on appeal at once.” The general term reversed the judgment against the railway companies, and ordered a new trial, and there-a tor the companies made their motion for the appointment of commissioners of appraisal, which was denied upon the ground that they had expressly stipulated that they would not contest the plaintiff’s rights except in the action, and that this stipulation debarred them from pursuing the proceeding to condemn. We are referred to many canons of construction relating to stipulations and statutes where, by reason of their wording, the meaning is obscure or doubtful. Such rules are only useful where the language itself is not clear, and where no more certain means of arriving at the true intent and meaning of the stipulation or statute are available. The language of the stipulation, the terms of which are sought to be brought in question, is clear and unambiguous, and accords with the view taken bv the learned judge at special term, that the petitioners are. precluded by such stipulation from proceeding to have commissioners of appraisal appointed, or from proceeding in any manner except to contest the rights of the American Bank-Note Company in the action brought by it. We are of opinion, therefore, that the order appealed from should be affirmed, with costs.

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


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    The American Bank Note Company, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Stay—Conditions.
    Where a stay of injunction is granted pending appeal conditioned upon the defendant’s stipulating not to take condemnation proceedings or contest the plaintiff’s rights except in the act.on, the defendant after accepting the benefits of the stay cannot refuse to comply with the stipulation or be h1 ard to claim that the condition was i equitable or an abuse of discretion.
    Appeal from that portion of an order staying an injunction pending appeal which required defendants to give a stipulation not to take condemnation proceedings, or contest the plaintiff’s rights except in the action.

      Davies & Rapallo (Julian T. Davies and Alexander S. Lyman, of counsel), for app’lts; Peckham & Tyler (W. G. Pechham, of counsel), for resp’t.
   O'Brien, J.

The facts connected with the giving of the stipulation, and the stipulation itself, are stated in the opinion herewith handed down. In re Metropolitan R. Co., ante. The principal insistence upon this appeal is that the court had no power to compel the railway company to give a stipulation which would deprive it of the right of eminent domain beyond the life of the judgment appealed from, and that, though it be conceded that the court had such power to exact it, it was inequitable and an abuse of discretion. In this connection, however, it should be remembered that the defendant was applying to the judge for a favor; and we are referred to no reason or authority -which would prevent a court or judge from imposing conditions, no matter how onerous, as a consideration for granting a stay pending appeal. It was entirely competent for the defendants, when the terms were made known, not to accept the same. But we fail to see how, after having taken advantage of the favor granted, they can now refuse to comply with the stipulation imposed as a condition for the granting of such a favor. This view is inconsistent with our right to pass upon the hardship or the inequitable claim urged against the stipulation. All the facts were before the judge, and whatever our view might be in reference thereto, we would not be justified, after the railway company has accepted of the benefits, to absolve it from the obligations imposed by the judge. We think, therefore, that the order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.


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    Thomas Crooks, App’lt, v. The Second Avenue Railroad Co., Resp’t.

      (Supreme Court, General Term., First Department,

      Filed November 18, 1892.)

    1. Pleading—Amendment on trial.
    A motion at the close of the testimony on the trial “ to amend the complaint to conform to the evidence so far as to alloy the plaintiff every possible advantage, under the decisions, upon thy evidence upon the question of fact as bearing upon the defendant’s negligence and the plaintiff’s " want of contributory negligence,” is too indefinite, and a denial thereof is proper.
    2. Negligence—Railroad—Pleading.
    Under a complaint in an action against a street railroad alleging that plaintiff was negligently thrown from the platform of defendant’s car by

      the negligent use of the brake by the driver, as well as the careless and negligent driving of the horses, by which a shock occurred and he was thrown beneath the wheels of the car, it is not error to take from the jury the question of the driver’s negligence after plaintiff was thrown from the car.
    Appeal from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial.
    Action for injuries alleged to have been caused by the negligence of the defendant.

      A. G. Vanderpoel, for app’lt; Merrill & Rogers (Payson Merrill, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for personal injury sustained by the plaintiff, upon the ground of the alleged negligence of the defendant. The cause of action set out in the complaint was that the plaintiff was a passenger upon one of the cars of the defendant, and that he was negligently caused to be thrown from the platform of said car by the negligent use of the brake by the servant of the defendant, the driver of the horses attached to the car, as well as by the careless and negligent driving of said horses by said driver, by which a shock was given to said car which caused the plaintiff to be thrown from said platform, and to be so thrown as to bring his leg under the wheels of the car, where it was so injured that it was required to be amputated.

Upon the trial the plaintiff gave evidence tending to show that he was upon the front platform of the car, and that while he was ■turning round to pay his fare to the conductor the car stopped of a sudden, or gave a sudden jerk, and he was thrown over the dashboard upon the traces of one of the horses, and that the car then suddenly started, pulling him along about ten feet, when he was run over. The defendant, upon the other hand, gave evidence tending to show that the car was proceeding at its ordinary rate, and the plaintiff fell off the car, seeming perfectly helpless, and that there was no sudden jerking of the car which caused the accident; that the plaintiff did not fall from the dashboard, but fell off the step; and that the car was stopped as soon as possible after he fell.

At the close of the testimony the plaintiff asked the court “ to amend the complaint to conform to the evidence so far as to allow the plaintiff every possible advantage, under the decisions upon the evidence, upon the question of fact as bearing upon the defendant’s negligence and the plaintiff’s want of contributory negligence.” This motion was denied, and in submitting the case to the jury the simple issue presented was, was the plaintiff thrown from the platform of the car through the negligence of the driver in handling the brake or in so driving the car that a sudden jerk was produced? The question as to whether the driver was negligent after the plaintiff was thrown from the car was taken away from the consideration of ■the jury. To the charge no exception was taken, and, the jury having rendered a verdict in favor of the defendant, from the judgment thereupon entered this appeal is taken.

We see no errors which call for a reversal of the judgment. The refusal to allow the amendment in the indefinite terms asked for was clearly proper. The claim that is now presented, that the court erred in taking away from the jury the question of the negligence of the driver after the plaintiff was thrown from the car, cannot be sustained, both because such disposition of the case was acquiesced in upon the trial, and also because no such issue was presented by the pleadings. The plaintiff had alleged distinctly and with particularity in what the negligence of the driver consisted; and this was the issue which was presented by the pleadings, and which the defendant was called upon to meet. The suggestion of negligence after the plaintiff had fallen from the car seems to have been an afterthought, and therefore there was nothing to present to the jury in respect thereto. We see no reason for interfering writh the judgment, and the judgment should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.