author: Clement,- C. J.

text:
    Minnie Holtham, Resp’t, v. Harry Holtham, App’lt.

      (Brooklyn City Court, General Term,

      Filed December 26, 1893.)

    Contempt—Non-payment of alimony.
    In a contempt proceeding, for non-payment of alimony, the burden is upon the defendant, where he claims that he cannot earn enough to make ' the payments, to establish his poverty.
    Appeal from an order finding defendant guilty of contempt for failing to pay alimony awarded by the court.

      Chas. J. Patterson, for app’lt; Baldwin F. Strauss, for resp’t.
   Clement,- C. J.

This is an appeal from an order finding the defendant guilty of contempt in failing to pay alimony. The appellant admitted that he owed the amount, $80, but claimed that he was out of work, and had no means. Assuming, as claimed by counsel for the appellant, that a husband should not be committed to jail for contempt for non-payment of alimony when he is unable to pay, the burden was on the appellant to establish his povei’ty, and to show that he could not earn money enough to support his wife and two children; of the ages of eight and ten years. His wife has been compelled to earn her living by washing and scrubbing, and the husband has paid her nothing since June 23, 1893. The judge at special term was not satisfied by the affidavits of the defendant and his mother that he could not pay the amount due, and his conclusion seems to us the correct one, after carefully reading the record.

Order affirmed, with $10 costs and disbursements, to be taxed by the clerk. _


source: Caselaw Access Project

author: Clement, G. J.

license: Public Domain

text:
    Elizabeth S. Headefin, as Administratrix, etc., App’lt, v. G. Duane Cooper et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed December 26,1893.)

    Master and servant—Fellow servant.
    A master, who has furnished additional appliances and delegated the duty of inspection to another, is not liable for tbe latter’s neglect to perform his duty.
    Appeal from a judgment in favor of defendant.

      Dailey, Bell <Sb Orane, for app’lt; Jaclcson S Burr, for resp’ts,
   Clement, G. J.

The plaintiff brought this action under the statute for the benefit of next of kin of Headefin, ceased, who was killed in the planing mill of the defendants, and at the time was in their employ. Headefin, of the age of 19 years, had worked in the mill for- a period of six months, and sustained fatal injuries by the breaking of a belt in use on a planer. Assuming that the belt was weak and rotten, such fact must have been known to Devlin, who had charge of the machine, and to the deceased. The master had provided other belts, and he had delegated the duty of inspection to Devlin, for whose neglect so to inspet the defendants were not liable. Cregan v. Marston, 126 N. Y. 568; 38 St. Rep., 428. If the belt was defective, and not fit for use, the defendants relied on Devlin to report its condition, and his acts were those of a fellow servant of Headefin. If the deceased knew the belt was rotten and unsafe, he accepted the service subject to the risk. Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520. The statement of Headefin before his death, that he had reported it many times, would seem to show that if the belt was weak the deceased knew all about it. The case of Harley v. Buffalo Car Manufacturing Co., 15 N. Y. Supp. 37; 38 St. Rep., 575, is not in point, as the plaintiff in that case “had been but a few days employed in the mill, and knew nothing of what was necessary to the safety of the machinery.”

Judgment affirmed, with costs.


author: Clement, C. J.

text:
    Stephen G. Cook et al., Executors, etc., Resp’ts, v. Sarah Dowling, App’lt.

      (Brooklyn City Court, General Term,

      Filed December 26, 1893.)

    Gift—Presumption .
    In an action by executors to recover possession of certain bonds, claimed by defendant as a gift, there is no presumption either for or against a gift, but the burden is upon the plaintiffs to establish their right to possession.
    Appeal from a judgment in favor of plaintiffs.

      Thos. J. Keigharn, for app’lt; Sackett & Lang, for resp’ts.
   Clement, C. J.

In the complaint, the plaintiffs allege that Catherine Hackett died on May 15,1891, and that at the time of her death she was the owner of five United States 4|- per cent, bonds, amounting to $3,600. Plaintiffs further allege that they are now entitled to immediate possession of said bonds, and on information and belief, set forth that the defendant wrongfully took them into her possession, and refuses to deliver them to plaintiffs, though demand has been duly made. The prayer for relief is in the usual form of an action of replevin. The defendant, in the answer, admits the death of Catherine Hackett, and denies the probate of the will, or that the plaintiffs have duly qualified. She denies that, at the time of her death, the said Catherine Hackett was the owner of the bonds, or that the defendant took or detains them from the plaintiffs, and further sets up that the bonds were her own property. On the trial, testimony was given by one of two plaintiffs tending to show that Mrs. Hackett was in possession, of the bonds in question about a year prior to her death, and that the defendant, who lived in the same house, and took care of her, could have stolen the bonds. Both plaintiffs testified that the defendant told them, after her death, that the deceased gave her the bonds about two weeks prior thereto, and also testified that the deceased was in a state of coma for the last four weeks or more of her life. The defendant was called as a witness in her own behalf, and denied that she told the plaintiffs that the bonds were given to her two weeks prior to the death, but stated that she did say that the bonds were given to her two weeks after Mrs. Hackett was taken sick, at which time it was conceded that she was mentally able to transact business. The defendant ineffectually attempted to prove a gift, as her testimony was excluded, except the following’:

“Q. How long did you have the bonds in your possession before you sold them ? A. She gave me the bonds. The Court:' How long did you have them in your possession before you sold them ? Mention the time. A. About six weeks; about that. Q. Did you sell those bonds before the defendant died? A. Yes, sir.”

The two executors called as witnesses were interested in the result of the action. The learned trial judge charged the jury that the burden of proof was on the defendant to establish that her possession of the bonds was lawful and just. We are of opinion ■ that the charge, as given, was erroneous, and that the burden of proof, on the whole case, was on the plaintiffs to establish their right of possession. A presumption of law can be drawn by the court, while a presumption of fact can only be made by the jury ; and it frequently happens in opinions that the one may be confounded with the other, and, in the discussion of cases, the term “ burden of proof ” is used when the writer intended simply to say “presumption of fact,” and it is not surprising that a trial judge in the hurry of business, is sometimes misled by the authority which he literally follows, while, on a careful examination after-wards, it appears that the judge ’who wrote the opinion used general language. Judge Parker, in the case of Southard v. Curley, 134 N. Y. 148,155; 45 St. Rep. 778 ; quotes with approval, on this point, from a case in Michigan:

“It must always be remembered that general language, in legal discussions, is to be construed with its surroundings, and cannot be dealt with in the abstract.”

A very able opinion in point, by Judge Rumsey, at special term, has recently been reported, Gibbs v. Carnahan, 25 N. Y. Supp. 786, in a case in some respects like the one before us, except that the party setting up the gift brought the action against the executors for conversion, and therefore plaintiff had the burden to establish such gift. There is no presumption of law in favor of a gift, Grey v. Grey, 47 N. Y. 552, and it is error to charge a jury that there is a presumption of law against a gift donatio causa mortis. Lewis v. Merritt. 113 N. Y. 386 ; 22 St. Rep. 714; Devlin v. Greenwich Sav. Bank, 125 N. Y. 756; 35 St. Rep. 922. In this case, there was proof that Mrs. Hackett had possession of the bonds about a year before her decease, and there was also proof that the defendant had possession of the bonds prior to her death. Possession of personal property is evidence of ownership, and the possession by defendant was as strong evidence of ownership by her as the possession by Mrs. Hackett that she owned the property at the time of her death. The plaintiffs, by their recovery in this action, establish that the defendant was guilty of fraud, and perhaps of grand larceny. In a civil action, where a party is charged with the com mission of a crime or of fraud, there is a presumption of innocence. Shultz v. Hoagland, 85 N. Y. 465 ; Blatz v. Rohrbach, 116 N. Y. 450; 27 St. Rep. 484; Starr v. Peck, 1 Hill, 270; Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56, 66; 12 St. Rep. 806; Morris v. Talcott, 96 N. Y. 100, 107. The defendant was presumed to be innocent, and it was incumbent on the plaintiffs to establish, by a fair preponderance of evidence, that the bonds were wrongfully taken and detained by the defendant, as alleged in the complaint. Griffin v. Long Island Railroad Co., 101 N. Y. 348, 354 ; 1 St. Rep. 56. For the reasons before stated, the judgment and order appealed from must be reversed, and a new trial granted, with costs to the appellant to abide the event


text:
    Magdalena Schmidt, Resp’t, v. Peter Eiseman, as Executor, etc., App’lt.

      (Brooklyn City Court, General Term,

      Filed December 26, 1893.)

    Costs—Security for—Executors.
    Security for costs in actions by or against executors may be granted or refused, in the direction of the court, though there is no proof of bad faith.
    Appeal from an order denying a motion to require plaintiff to give security for costs.

      Jaclcson & Burr, for app’lt; Charles J. Patterson, for resp.’t.
   Clement, C. J.

This action was brought to recover for labor and services alleged to have been performed for Gertrude Sober, of whose estate.the defendant is executor. Defendant applied at special term for an order requiring the plaintiff to give security for costs, under Code, § 3271. The motion was denied, and an appeal was thereupon taken. Security for costs, under this section, may be granted or refused, in the discretion of the court, although there is no proof of bad faith. Tolman v. Syracuse, B. & N. Y Railroad Co., 92 N. Y. 353. The counsel for appellant invokes the rule suggested in Caccavo v. Rome, W. & O. Railroad Co., 13 N. Y. Supp. 884; 36 St. Rep. 932; that, if poverty is conceded, the party must satisfy the court that good cause of action is set forth. Assuming the correctness of the rule, we think that the plaintiff in this case did show a fair probability of a recovery. In the case cited the allegations in the complaint were made on information and belief, and the sources of the information were not set forth; and in the case before us the plaintiff states in her complaint a good cause for action, and sustains the same by an affidavit, which must have been made of her own knowledge. The discretion of the court below has not been abused.

Order affirmed, with $10 costs and disbursements, to be taxed by the clerk.


text:
    Annie Goldsmith et al., Resp’ts, v. Leopold Goldsmith, App lt.

      (Brooklyn City Court, General Term,

      Filed November 27,1893.)

    1. Trust—Parol.
    The transactions out of which an implied trust arises may he proved hy parol, hut the trust itself must rest upon the acts or situation of the parties, and not merely upon their declarations.
    2. Same—Specific Performance.
    Where one party has executed his part of the agreement, in the confidence that the other party will do the same, it would he a fraud upon the former to suffer the latter’s refusal to perform to work to his prejudice.
    Appeal from a judgment in favor of plaintiffs.

      Hays & Q-reenbaum, for app’lt; Jere A. Wernberg, for resp’ts.
   Clement, C. J.

On February 5th, 1887, oneBarbara Goldsmith, mother of the four plaintiffs and of the defendant in this action, owned certain real property on Myrtle avenue, in this city, and on that day conveyed the same to the defendant, without consideration, except his promise that he would hold four-fifths of the same in trust for the plaintiffs, and that he would pay the taxes and interest on the mortgage out of the rents, in lieu of paying any board while he lived in the family. Mrs. Goldsmith and her family, including the defendant, lived in a portion of the house until March, 1888, when she died; and from that time until February, 1891, plaintiffs and defendant continued to live together at the same place, and under the same management, when the defendant sold the property for $12,000, from which was deducted a mortgage for $6,500, leaving in. his hands the sum of $5,500. From February 5th, 1887, to February,’ 1891, the defendant had collected the rents of the part of the house not occupied by the family, and had received his board without charge. On or about May 15th, 1891, the defendant purchased a house and lot on De Kalb avenue for the sum of $3,800, and paid the same out of the consideration received on the sale of the Myrtle avenue house, and promised the plaintiffs that as soon as he got title he would give them a paper writing giving to each of them an equal, undivided share in the De Kalb avenue property, and would account to them for the balance of the proceeds of sale of the Myrtle avenue premises. The court below decided that he should perform his agreement, and the defendant has taken this appeal.

This is a border case, and the points involved are intricate and close. The defendant, when called as a witness, did not explain the transaction between his mother and himself. His testimony consists of simple denials, and he has elected to stand on the statute that no estate or trust in land can be created except by writing. No explanation is given by him why the mother presented him with the Myrtle avenue property, or why the family continued to occupy a portion of the same until the sale iji 1891, or why he did not pay for his board from 1887 to 1891. We think that the case of the defendant would have been stronger on the facts, if he had testified as to the details of the transaction. The rule is laid down by Chief Justice Church in the case of Foote v. Bryant, 47 N. Y. 544, 547, in reference to §§ 6 and 7 of the Revised Statutes, as follows:

“ This statute does not preclude a party from establishing any implied or resulting trust known or recognized by the common law. They arise usually from the acts and relation of the parties to the property involved, and not upon parol agreements. The general principles of equity and good conscience, applied to certain situations and acts of the parties, are used to raise presumptions of intention, and to impress property with trusts, and to clothe one party with the character and obligations of a trustee, and another with the rights and privileges of a cestui que trust for the purpose of securing honesty and fair dealing among mankind, and to prevent fraud and injustice. * * * The transactions out of which a trust of this character arises may be proved by parol, but the trust itself must rest upon the acts or situation of the parties, as proved, and not merely upon their declarations.

It will be observed from the testimony in the case, that three of the plaintiffs were infants in 1887, and the trial judge has found that the plaintiffs made expenditures in repairs of the property between the date of the delivery of the deed and the date of sale by the defendant. There is also a finding that the defendant, while the proceeds of sale were in his hands, recognized the trust The defendant boarded in the family until the sale, in 1891, and the mother was an invalid at the time of the deed, and died in 1888. The question to be decided in this case is simply whether these facts are sufficient to justify the judgment. We are inclined to hold that they are, on two grounds—First, for the reason that the situation and the acts of the parties raise a presumption of a trust in the land; secondly, for the reason that the defendant acknowledged a trust in the proceeds of sale. As authority for the first ground of affirmance, we find the case of Moyer v. Moyer, 21 Hun, 67. See, also, Murphy v. Whitney, 69 Hun, 573; 53 St. Rep. 334. While it is true, in that case, the children were in absolute possession of the farm, and made some improvements of a permanent nature, and that such facts do not appear in this case, yet" the plaintiffs continued to occupy a portion of the premises, and the defendant collected the rents of the remainder, and did not pay board. We quote from the findings:

“ The defendant and all the plaintiffs acted upon the assumption that the transactions, intentions, and understandings, at the time the deed was delivered, were valid, and were to be carried into effect.”

In Ryan v. Dox, 34 N. Y. 307, 311, Judge Davies said:

“ When one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer his refusal to work to his prejudice.”

It will be observed, on the question of the possession of the-Myrtle avenue house, that on the theory of the plaintiffs, and by the judgment, the defendant owned an undivided fifth part. When the deed was delivered, the defendant agreed with his mother,who represented the other four children, that the family should continue in the portion occupied by them, and that the defendant, should collect the rents of the remainder, and out of the same he was to pay the interest on the mortgage, and the taxes. Whether such agreement was beneficial, does not appear in the case. The agreement, simply, was that he should collect the rents for himself, and as agent for-the other four children. We are of opinion that the parol declaration of trust by the defendant, while holding the proceeds of sale, was sufficient to make him such trustee. Bork v. Martin, 11 N. Y. Supp. 569; 33 St. Rep. 659; Robbins v. Robbins, 89 N. Y. 251. The sole objection to such conclusion is that the same may be said to have been made without consideration. The plaintiffs, if defendant repudiated the trust, could maintain an action against him for his board from 1888 to 1891, and it was sufficient consideration that they, relying on his declaration, did not bring an action therefor.

No point is made as to the form of the judgment, in so far as it relates to the De Kalb avenue house. It may be that the court should have declared that the moneys of plaintiffs invested in such property were an equitable lien thereon; but, as no such point is made by the appellant, we do not consider the question. The judgment appealed from must be affirmed, with costs.


author: Bookstaver, J.

text:
    Joseph Hughes, App’lt, v. David M. Koehler, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 2, 1894)

    Appeal—Reversal,
    Where the questions of law, raised hy an appeal from an order vacating a judgment, rest upon disputed facts, the court may reverse the order and send the matter to a referee to take proof of those facts and report to the special term.
    Appeal from an order vacating a judgment against the defendant.

      Edward W. S. Johnston, for app’lt; Charles Goldzier, for resp’t..
   Bookstaver, J.

The questions of law raised by this appeal rest entirely upon disputed as contends, stenographer’s minutes upon the first trial contained the entire stipulation relating to the dismissal of the complaint against him, then the order is clearly right, and should be sustained. If, on the other hand, the stipulation to dismiss the complaint as to him was coupled with the further agreement that judgment should be taken against him for" the possession of the premises, or if, as appellant contends, thereafter the judgment, as entered, was submitted to and approved by his attorney, which does not seem to be denied by the papers presented on this appeal, then the order is erroneous. Under the circumstances of the case, we think the order should be vacated, and the matter sent to a referee to take proof as to the facts before referred to, and to report the. same to the special term of this court; the costs of this appeal to the appellant to abide the result

All concur.


author: GflLDERSLEBVE, J.

text:
    Sarah Clover, Resp’t, v. Louis Silverman et al., App’lts.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Injunction—Usury.
    A foreclosure of chattel mortgage securing a usurious loan will be enjoined.
    8. Same—Vacation.
    An order continuing an injunction pendente lite will not be vacated though the fact that the plaintiff has not an adequate remedy at law is not averred in the complaint, if, in fact, he has none.
    Appeal from an order continuing an injunction pendente Hie.

      Warner & Crawford, for plaintiff; Thornall, Squires & Pierce, (Franklin Pierce, of counsel,) for defendants.
   GflLDERSLEBVE, J.

This action is for an injunction restraining the defendants from taking, or in any way interfering with certain furniture covered by a chattel mortgage given by plaintiff to the defendant the Commercial Credit Company. The plaintiff also asks, in her complaint, that the promissory note, the payment of ■which said mortgage was given to secure, together with said mortgage, be brought into court, declared void, and canceled, on the ground of usury. The first alleged cause of action charges fraud in inducing the execution and delivery of the mortgage. This cause of action is without merit, for the reason that the plaintiff signed both the mortgage and the schedule, and the law presumes that she knew and understood their contents. The allegations of usury set forth in the second alleged cause of action are sufficient to restrain the action. The appeal under consideration is from an order of the special term, continuing an injunction pendente Hie, restraining the defendants from interfering in any manner whatsoever with the furniture of the plaintiff, covered by the mortgage. At the time the order was made, no answer to the complaint had been served by defendants, or either of them, nor was any answer read, upon the argument in the court below, in opposition to the motion. It is now urged that the motion was improperly granted, for the reason that it does not appear in the complaint ‘•that the plaintiff has not an adequate remedy at lawr.” The question of remedy was not raised by answer or demurrer. The decision of the court below seems to be in accord with the rule laid down in Palmer v. Jones, 69 Hun, 240; 53 St. Rep. 355. See, also, Ehrgott v. Forgotston, 17 N. Y. Supp. 381; 43 St. Rep. 60. It did not appear at the time of the argument, or before the dicision under consideration was made, what position the defendants would take either by answer or demurrer, on the question of remedy. From an examination of the defendant’s affidavits, and especially the exhibits to which we refer, it is manifest that-the plaintiff is mistaken as to the amount of the note and the name of the payee, and also as to the maker of the check for $150. These matters were fully within the knowledge of the defendants, and the apparent discrepancies worked no injuries to the defendants, nor did they substantially affect the merits of the plaintiff’s claim. The facts set forth in the second alleged cause of action, supported by the affidavits read upon the motion, meet the requirements, imposed by principle and authority, that warrant the court in affording equitable relief. Moreover, if it can be said that the question of “adequate remedy at law” has been properly raised, there was sufficient before the court below to justify the conclusion that the plaintiff had no adequate remedy at law. Were the defendants permitted to proceed under the mortgage, and sell the furniture, the injury done to the plaintiff could not easily be estimated in dollars and cents. The order appealed from must be affirmed, with $10 costs and disbursements.


author: Fbeedmah, J.

text:
    Mary Mitchell, as Administratrix of Patrick Mitchell, Deceased, Resp’t, v. William Cody, App’lt.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Cause—Pboximate.
    Where death is produced by a fall upon a pavnment, the cause of which fall is a blow struck by the defendant, such blow is the proximate cause of the death.
    2. Pleading—Denial.
    Pacts in justification or mitigation of damage are not admissible under a general denial.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Fellows <& Hartman, for app’lt; C. Stickler, for resp’t.
   Fbeedmah, J.

Upon the facts as found by the jury under an unexceptionable charge the direct cause of the fall of the plaintiff’s intestate was the blow struck by defendant, and the circumstance that the head of the deceased came into contact with the pavement upon which he fell was the natural and proximate result of the force wrongfully exerted by the defendant. Death having ensued therefrom, such death clearly was the natural and proximate result of defendant’s wrongful act; and the existence of the pavement cannot be treated as the intervention of a new agency which produced a consequence for which the defendant is not liable.

Defendant’s application at the trial for leave to withdraw a juror was not denied for want of power to grant it, and the ruling as made presents no ground for reversal.

The rulings of the trial judge denying defendant's right to introduce special matter in justification or in mitigation were all proper under the pleadings. The answer contained only a general denial. Facts in justification or in mitigation of damage, directly and naturally flowing from the wrongful act complained of, must be pleaded if the defendant desires to provet hem at the trial. Moreover, the defendant in the end substantially succeeded in introducing his proof in that respect. Upon the whole case no reason appears which calls for reversal. .The judgment and order should be affirmed, with costs.


author: Gildersleeve, J.

text:
    James Waldron Gillespie, Resp’t, v. Philip Weinberg et al., App’lts.

      (New York Superior Court, General Term,

      Filed December 29,1893.)

    Easement—Extent.
    An easement, which consists of the privilege of passing over the premises, gives no right to erect any permanent structure thereon.
    Appeal from a judgment in favor of plaintiff.

      Benj. Wright, {John A. Taylor, of counsel,) for app’ Its; G. W, Van Nest, for resp’t.
   Gildersleeve, J.

A small, irregular piece of ground in the rear of No. 826 Broadway, which is the northeast corner of Broadway and Twelfth street, connects No. 828 Broadway, which adjoins Ño. 826 Broadway on the north, with East Twelfth street. This piece of ground has long been used as an alley or passageway between No. 828 Broadway and Twelfth Street. This action is brought by the owner of 826 Broadway to restrain the occupants of 828 Broadway from improperly using said alley, and to require them! to take down certain fire escapes which they have erected, and so constructed as to project over the piece of ground in question.. The respective estates of the plaintiff and the defendants are from a common grantor, and the nature and character of each estate to the alley in common must be determined by the natural import of the words employed in the conveyances. The conveyance by virtue of which the defendants hold, after the words, “be the said several dimensions more or less,” contains the following clause, to wit:

“And also the right of using the strip of ground designated in said map as ‘alley in common’ for the purpose of passing and re-passing, from the lot of ground hereby conveyed, to and from 12th street.”

The description in this conveyance by metes and bounds does not include the alley in common, or any part of it. The description of the plaintiff’s property, Ño 826 Broadway,- by metes and bounds, set forth in the conveyance under which he holds, includes the alley in common. The oonveyance then provides, in respect of the alley in common, as follows:

“ Subject to the right of Stuart Molían, his heirs and assigns, to use the strip of ground laid down on said map as ‘alley in common’ for the purpose of passing and repassing from the lot of said Stuart Molían to and from 12th street.”

The fee of the alley is in plaintiff, subject to the reservation in question. This reservation, to which the defendants have succeeded, and which constitutes their estate in the alley in common, is a restricted use, which consists only of the right of passing and repassing. It cannot be held that the grantor intended to reserve anything more than the right of passing and repassing. The words, used have a clear import, indicate a well-defined intent, and serve to create a useful and valuable estate. The defendants’ estate in the plaintiff’s premises, being limited to an easement, which consists merely of the privilege of passing over the premises, does not give them a right to erect any permanent structure thereon. The erection of such a structure is a trespass. It follows that the court below properly enjoined the defendants from using the alley in common other than for the purpose of passing and repassing. The relief sought is cognizable only in equity, and the court clearly had jurisdiction to try the case without a jury. The judgment is correct, and must be affirmed, with costs.


author: Freedman, J.

text:
    Martin K. Murphy, Resp't, v. Ninth Avenue Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    Negligence—Street Railroads.
    It is not negligence for a street-car company to run its cars on its track after the erection of elevated railroad columns in the street near such track.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.

      J. M. Scribner, for app’lt; Lamb & Osborn, for resp’t.
   Freedman, J.

The action was brought for the recovery of damages for personal injuries sustained by the plaintiff while a passenger on one of defendant’s cars, through the alleged negligence of the defendant. The plaintiff, at the time in question, was an active man, in full possession of all his faculties, and entirely familiar with defendant’s railroad and its operation and with the location of the structures of the elevated railroad in Ninth avenue at and near the point where he sustained the injuries. He boarded one of defendant’s cars, going south, from the easterly side, while the car was in motion. It was a car open at the sides, with seats running transversely, such as are in common use in this city during the summer months. Having boarded the car on the easterly side, the plaintiff crossed over to the westerly side, either in front of the rear seat or on the rear platform, and with the columns or pillars of the elevated railroad structure, with which he had long been familiar, in full sight on the westerly side of the car. As the plaintiff was moving from the rear towards the front of the car on the step or stanchion which ran along the westerly side of the car, he collided with an elevated railroad column, and was thereby knocked off the car and injured. It was claimed that the column in question was column No. 562, and it was proved at the trial by a competent surveyor called by the defendant that the distance between the stanchion of such car and the nearest point of the straight part of the column is 14-|- inches at column No. 561, 14jj inches at column No. 562, and 16-¡¿- inches at column No. 563. The plaintiff testified that the distance was from 12 to 13 inches, and that the defendant should have the benefit of 15 inches. Consequently there was no material conflict as to the actual distance. It therefore appeared that, the proximity of these columns to the stanchion of the car being as stated, the plaintiff, although the columns were in full sight, and their location was entirely familiar to him, left the easterly side of the car, where there were no columns to interfere with his movements, and, with his eyes open, and in broad daylight, walked along the westerly step of the car while the car continued in motion, until his shoulders struck one of the columns ; and that to accomplish this his shoulder must have projected in a westerly direction at least 14s¿- inches beyond the westerly line of the step. For this no necessity was shown. The preponderance of the evidence was that vacant seats could have been reached by the plaintiff without crossing to the westerly side of the car, and then proceeding along the westerly step; even if it be assumed that the plaintiff was excusable in so proceeding in order to reach a particular seat which he coveted, while the car was in motion, he could and should have done so without coming into contact with the column in question.

Defendant’s railroad was constructed and in use many years before the elevated railroad structure was erected, and, consequently, it was not, negligence on the part of the defendant to continue to run its cars on its own tracks after the erection of the elevated railroad columns. Moreover, it was shown without contradiction that for the express purpose of preventing injury to passengers by ■collision with the elevated railroad columns the summer or open cars of the defendant had been constructed six inches narrower than the open cars in use on the Eight avenue road, and that many thousands passengers, had been carried on the open cars of the defendant, passing the same elevated railroad columns on-every trip, without accident or injury to a single passenger. The fact being as stated, and no claim having been made that the plaintiff was thrown.off his balance by a sudden jar or jolt of the car, the de•cisions of the court of appeals in Moylan v. Second Ave. Railroad Co., 128 N. Y. 583; 37 St. Rep. 871; Craighead v. Brooklyn City Railroad Co., 123 N. Y. 391; 33 St. Rep. 620; are directly applicable ; and under these decisions it must be held that the injury to the plaintiff was either the result of an accident, or that, if it was due to any negligence, it was due more to his own negligence than to that of the defendant The conclusion is therefore unavoidable that the defendant was entitled, at the close of the whole case, either to have the complaint dismissed, or to have a verdict directed in" its favor, and that the refusal of the trial judge to do either constituted error. The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to .abide the event. All concur.


author: Glldersleeve, J.

text:
    Robert Katz, App’lt, v. Henry Koster, Resp’t.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    Appeal—Case.
    The statement that “the foregoing presents all the evidence hearing upon the extent of the plaintiff’s damages,” is not equivalent to the statement that the case contains all the evidence.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Leopold Leo, for app’lt; Johnston & Johnston (Edward W. iS. Johnston, of counsel), for resp’t.
   Glldersleeve, J.

This is is an appeal from a judgment in favor of the defendant, and against the plaintiff, for the sum of $110.95 costs, entered on the verdict of a jury in favor of the plaintiff, and against the defendant, for the sum of six cents damages. The action is brought upon a warranty contained in a bill of sale of a horse. The case was properly submitted to the jury by the learned trial judge, in a charge to which no exception was taken, and the jury brought in a verdict for nominal damages. The statement contained in the case, to wit, “ The foregoing presents all the evidence bearing upon the extent of the plaintiff’s damages,” is not equivalent to the statement required—that “ the case contains all the evidence.” See Hyman v. Friedman, 18 N. Y. Supp. 446; 45 St. Rep. 636; Guion v. Mundy, 18 N. Y. Supp. 445; 45 St. Rep. 667; Upington v. Pooler, 19 N. Y. Supp. 428; 47 St. Rep. 30. Inasmuch as there are no exceptions presented to us for review, the appeal rests entirely upon issues of fact; and, as the statement herein is not equivalent to the one called for by the rule, the general term will not review these alleged errors of fact. For aught that appears to the contrary, there may have been other evidence which told largely for the defendant, and justified the verdict of the jury. For the reasons above stated, we do not feel warranted in disturbing the determination of the jury. The judgment and order appealed from must be affirmed, with costs.


author: Freedman, J".

text:
    Albert L. Thomas, Resp’t, v. William Cauldwell, App’lt.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    Damages—Contract.
    In an action for preventing the completion of a contract in constructing a machine, which in its unfinished state was of little value, the measure of damages is the contract price less the value of the machine as it was when the work was stopped and the amount necessary to complete it.
    Appeal from a judgment entered in favor of the plaintiff, and from an order denying a motion for a new trial.
    A. Grooh, for app’lt; P. Wilcox, for resp’t.
   Freedman, J".

This action was brought by the plaintiff, as the assignee of Walter Scott & Co., manufacturers of printing presses, to recover damages for the breach by the defendant of a contract under which Walter Scott & Co. were to build for the defendant a certain printing press. Walter Scott & Co., after having partially completed the press, were, notified by the defendant to suspend all work upon it, and the defendant declined to accept the press that they were then making for him. After the failure to adjust the controversy which had thus arisen, Walter Scott & Co. assigned their claim to the plaintiff. The contract, as established by the pleadings, and the evidence given at the trial, is to be found in the letter of Walter Scott & Co. to the defendant, dated March 26, 1890, and the letter of the defendant, dated March 27, 1890, in answer thereto, and in a certain modification, thereafter made, by which the written contract was modified in so far that Walter Scott & Co. were not to furnish defendant with the stereotype outfit mentioned in.their original proposition, and were, in consequence thereof, to deduct $500 from the original price of $9,000. There being no dispute as to the modification, we may therefore start with the proposition that, the contract having been reduced to writing, its terms cannot be changed by parol testimony, but that parol testimony may be resorted to for the purpose of explaining the meaning of terms which otherwise would remain uncertain or ambiguous. The contract called for one of Walter Scott & Co.’s “ web-perfecting printing presses, to fold either 4 or 8 pages, which will print 7, 8, or 9 columns. The pages to be 26 inches in length. The press to be first class in every respect, and under our [viz. Walter Scott ¿e Co.’s] guaranty, or no sale.” The press was to cut, paste, and fold, etc. By way of explanation of this language the defendant was -permitted at the trial to show, and he did produce testimony to the effect, that some days before he received the letter of March 26th, the plaintiff, then acting as the agent of Walter Scott & Co., called upon him ; that in the course of their conversation the defendant inquired respecting the style and character of the press offered, and the number of sheets of 4 or 8 pages and 7, 8, or 9> columns the press would print, cut, and fold per hour; that in response to that inquiry, and by way of description of what the web-perfecting printing press was, the plaintiff showed to the defendant a certain circular, in which it was stated that the web-perfecting printing press would print, cut, and fold 12,000 sheets of 8 pages, or 24,000 sheets of 4 pages, per hour; that the gearing was accurately cut; that the bearings were large; that studs, friction rolls, etc., were made of steel, and hardened, and that the machine throughout was constructed in the best manner and of the best materials; that the plaintiff also told the defendant that the capacity of the press was 12,000 sheets per hour; that the defendant had no knowledge as to what the press was, other than what he was told by the plaintiff and the circular; that, believing the web-perfecting printing press to be what the plaintiff and the circular stated it was, he agreed to order one; and that he subsequently ascertained that the press which Walter Scott & Co., were constructing for him would not have the capacity represented, inasmuch as it would not be able to print, cut, and fold 12,000 sheets of 8 pages, or 24,000 sheets of 4 pages per hour. In opposition to this testimony the plaintiff showed that the press to be constructed for the defendant was not the press as represented in the circular, but a different and larger one ; that no representation was made that it would be the sort of press as shown upon the circular ; that the circular was not given to the defendant; that the plaintiff did not know how the defendant received the circular; and that no assurance whatever was given with respect to the press to be constructed other than what is contained in the contract itself, viz., the two letters.

These conflicting statements were submitted to the jury with the instruction that, if they believed defendant’s version, the defendant was entitled to a verdict; but that, if they believed plaintiff’s version, the conflict should be decided in plaintiff’s favor. The charge of the trial judge upon the branch of the case was exceedingly favorable to the defendant, but the jury found for the plaintiff. In view of all the circumstances bearing npon this branch of the case, it cannot be held that the finding of the jury was against evidence or the weight of the evidence. That being so, the finding of the jury effectually disposes of the further claim of the defendant that, owing to the mutual mistake and oversight of both contracting parties, the representations as to the capacity of the press claimed by the defendant to have been made as hereinbefore stated were omitted from the letters.

In the course of the trial the defendant also claimed that he was induced to enter into the contract in question by representations to the effect that the press to be made for him would be similar to a press constructed by Walter Scott & Co. for the Hew York Dispatch and considerable evidence was given by both sides as to the capacity of the press of the HeW York Dispatch. The evidence undoubtedly showed that such a representation had been made, and that the latter press was a counterpart of the one to be manufactured for the defendant; that the two presses were substantially alike in their mechanical arrangement; and that the press of the Hew York Dispatch did not have the capacity of printing, cutting, and folding 18,000 sheets of 8 pages per hour. The real difficulty appeared to arise from the fact that, while both machines, as to mechanism, were substantially the same as the machine represented in the circular hereinbefore referred to, they were different as to' size. The circular represented a machine for a 22-inch sheet, while the other two machines were intended to run a 26-incli sheet. The defendant had insisted upon a machine for a 26-inch sheet. The consequence was that the cylinder had to be much larger, the frame larger, and the whole press larger; and that, inasmuch as it takes more time for a big cylinder to go around and make the same impression that it does for a small cylinder, the speed became reduced. But the whole controversy, in so far as it turned upon comparisons between the press of the Hew York Dispatch and the press constructed for the defendant, has become immaterial in view of the finding of the jury that no representation whatever had been made that the press to be manufactured for the defendant should have the capacity contended for by the defendant, .and by reason of the further fact that there was no evidence upon which the jury could have hound that before the execution of the contract it had been represented to the defendant that the Hew York Dispatch press had the capacity of printing, cutting, and folding "12,000 sheets of 8 pages per hour. For the same reasons it was not error that the trial judge refused to grant defendant’s motion to strike out the testimony of Walter Scott to the effect that the press in course of construction for the defendant, if it had been completed in accordance with defendant’s order, would have been capable of turning out 12,000 sheets of 8 pages per hour. Moreover, the testimony had been given without objection on the part of the defendant at the time, and in the end the case was submitted to the jury on the assumption that the press, if completed, would not have had any such capacity. The only substantial grievance of the defendant throughout the trial having been that the press, if completed, would not have come up to the representations made to him concerning its capacity to do a certain amount of work per hour, and the jury having found that no such representations were made at the time of the making of the contract, the only remaining questions relate to the measure of damages.

The action is not based on the completion of the contract, but upon the prevention of its perform anee. The measure of damages in such a case is such damages as will compensate the plaintiff for being deprived of the benefits of the contract. Ordinarily, the difference between the contract price and the market value of the property constitutes such compensation. Todd v. Gamble, 67 Hun, 38; 51 St. Rep. 619; Windmuller v. Pope, 107 N. Y. 674; 12 St. Rep. 292. In the case at bar it was shown, however, that the press in question, as it was when the work upon it was stopped by order of the defendant, had no market value except as metal; that it would have cost about $600 to finish it, and about $200 more to deliver and set it up; but that, if it had been finished, owing to its unusual size, it would have had no market value except as metal. Under the circumstances of this case the evidence was competent, and upon it the jury were properly instructed that, if they found a verdict for the plaintiff, they should deduct from the contract price of $8,500 the value of the machine as it was at the time the work was stopped, and the cost necessary to complete it, and to set it up in place. The charge, as a whole, guarded every right which the defendant had, and I can see no error in the refusals to charge otherwise. Upon the evidence and the charge as delivered the verdict of the jury for $5,400 was not excessive. If anything, it was inadequate, but of this the defendant cannot complain. Upon the whole case no reason appears which would justify a reversal. The judgment and order should be affirmed, with costs.


author: Gtldersleeye, J.

text:
    Alfred Walton, Resp’t, v. Helen E. Chadwick, App’lt.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Attachment—Vacation.
    Where the papers, upon which the attachment was granted, are sufficient, and the evidence is preponderating, it will be vacated.

      2. Same.
    Upon such application, the court will not undertake to try the merits of the action.
    Appeal from an order denying a motion to vacate an attachment.

      0. Bainbridge Smith, for app’lt; Friend & House, (F B. House,, of counsel,) for resp’t.
   Gtldersleeye, J.

This is an appeal from an order denying defendant’s motion to vacate an attachment. This action is brought, to recover the sum of $1,333.33, which the plaintiff loaned to the defendant, and which the defendant agreed to repay, with interest, 60 days after the date of the loan, which time had expired before1 the commencement of the action, and payment of said loan was duly demanded, and refused. The answer of the defendant sets up the defense of usury. The warrant of attachment was granted upon the complaint, and the affidavits of the plaintiff and Pierre G. Taiman, a practicing lawyer of this city. The plaintiff also submitted affidavits of several other people. The papers offered by plaintiff show a good cause of action, as well as legal grounds for an attachment. The defendant submitted affidavits denying tile allegations of fact contained in plaintiff’s affidavits, with regard to the statutory grounds of the attachment, i. e. that “defendant had assigned, disposed of, and secreted, and was about to assign, dispose of, and secrete, her property, with the intent to defraud her creditors,” etc, and disputing the plaintiff’s cause of action. This raised certain issues of fact, which, so far as they are concerned the statutory grounds of the attachment, were determined, on the application to vacate the attachment, in favor of the plaintiff, and the attachment was upheld. The general term is not disposed to reserve this determination. While it is true that where the facts are undisputed, ■ and the legal conclusions certain, it would be oppressive to uphold an attachment which is.clearly without foundation, still, where the allegations of plaintiff’s affidavits dispute the affidavits furnished on the part of the defendant, and the papers upon which the attachment was granted are sufficient, and the evidence of'plaintiff is fairly preponderating, the attachment should be upheld. A careful examination of the opposing affidavits and papers in the case leads us to the conclusion that the evidence offered by the plaintiff, as to the statutory grounds of the attachment, is sufficiently preponderating to warrant the upholding of the attachment In so far as the papers on this appeal call into issue the merits of the cause of action itself, the general term is not here called upon to express an opinion. The court could scarcely undertake to try the merits of an action upon an application to vacate an attachment. The rule is well settled that ordinarily the court will not, upon motion, try questions regarding the cause of action, which should properly be left for determination upon the trial. See Lowenstein v. Salinger, 17 N. Y. Supp. 70; 42 St. Rep. 414; Brown v. Wigton, 18 N. Y. Supp. 490 ; 45 St. Rep. 135. The only question to be determined upon this appeal is whether the plaintiff has sufficiently estabfished the statutory grounds for the attachment, in view of the denials and allegations of the defendant’s affidavits. This we think he has done, and we are therefore of the opinion that the order appealed from must be affirmed, with $10 costs and disbursements.


text:
    James Gordon Bennett, Pl’ff, v. Lawrence V. Mulry et al., Def'ts.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Attachment—Sureties.
    In an action on an attachment bond, an allegation in the complaint that the attachment was discharged, is surplusage.
    2. Sam:e—Defense.
    The sureties cannot defend upon the ground of any irregularity in the attachment proceedings.
    A verdict was ordered for the plaintiff, subject to the opinion of the court at general term.

      John Townshend, for pl’ff; Coxe & Stratton, (B. P. Stratton, of counsel,) for def’ts.
   Gildersleeve, J.

An action having been commenced, in this court, in August, 1890, by the plaintiff herein against Clark Balcom, an attachment issued against the property of said Balcom. • In September, 1890, the defendants herein executed an undertaking whereby they jointly and severally undertook that the said Balcom would, on demand, pay plaintiff the amount of any judgment which might be recovered in said action against him, not exceeding $350 and interests. This action is to recover upon that undertaking. In addition to the foregoing facts, the complaint herein alleges that said Balcom applied to discharge such attachment ; that the attachment was discharged; that on March 22d, 1892, plaintiff recovered judgment for $400.08 against said Balcom in said action ; that payment of said judgment was duly demanded of said Balcom; that he failed to pay; and that said judgment remains unpaid. The defendants, by their answer, admit the commencement of the action against Balcom, and the granting of the warrant of attachment against the property of said Balcom, and specially deny any knowledge or information sufficient to form a belief as to each of the remaining allegations of the complaint. The answer sets up no affirmative defense. The plaintiff proved the undertaking, the recovery of judgment against Balcom, the demand of payment of said judgment, and its nonpayment. Defendants offered no testimony, but moved to dismiss the complaint, upon the grounds (1) that it was alleged in the complaint that the attachment was discharged, but that it was not proved; (2) it was not proved that the undertaking was approved, as required by § 812 of the Code, or that exceptions to it were waived; (8) plaintiff had not proved any damage by reason of the filing of the undertaking. The presiding judge ordered judgment for plaintiff, subject to the opinion of the general term.

The allegation that the attachment was discharged was not essential to a recovery by plaintiff, and was not put in issue by a denial. In Griffin v. Long Island Railroad Co., 101 N. Y., 348 ; 1 St. Rep. 56; the court say:

“A general or specific denial controverts only material allegations, or such facts as the plaintiff would be compelled to prove in order to establish his cause of action.”

See Fox v. Turner, 2 N. Y. Supp. 164; 17 St. Rep. 666. The Code (§ 500) calls for a denial only “ of each material allegation in the complaint.” Immaterial averments are not put at issue by a general or specific denial. Linton v. Unexcelled Fireworks Co., 124 N. Y. 536; 36 St Rep. 694. The allegations in the complaint that the attachment was discharged must be regarded as an effort to anticipate and deny a possible defense, and as mere surplusage. Having executed the undertaking, if the defendants seek to escape liability thereunder, by reason of a failure to discharge the attachment, the burden is cast upon them to prove it, which they cannot do without alleging it in their answer. See Linton v. Fireworks Co., supra; Clark v. Thorp, 2 Bosw. 680. The law will not assume that the undertaking was wrongfully obtained ; and, upon proof of the undertaking, the burden is cast upon the defendant to prove—“ and hence of alleging in their answer ”—facts which avoid the undertaking.

The second ground of dismissal urged by the learned counsel for defendants is also without merit. Sureties on an undertaking, when sued, cannot defend upon the ground of any irregularity in the proceedings. Jewett v. Crane, 35 Barb. 208; Higgins v. Healy, 47 N. Y. Supr. Ct. 207; Gibbons v. Berhard, 3 Bosw. 635; Hill v. Burke, 62 N. Y. 116. In the case of Ring v. Gibbs, 26 Wend, 506, the court said:

“ It does not lie with the defendants to object that the su2-eties were not approved by the commissioner. The waiver of approval was injurious to the plaintiffs, if to anybody. That benefit they have a right to waive.”

In answer to the third objection urged to a recovery by the plaintiff, it may be said that the presumption is that the undertaking was given under circumstances which make it valid, and that it accomplished the purpose and object for which it was given. Coleman v. Bean, 32 How. 370. If, after the undertaking was received by the plaintiff, its object was defeated, such fact, if it be any defense, cannot be made available here by the defendants, unless set up in the answer. There is nothing in the caseto show that the bond is not a valid and binding obligation on the defendants, and we cannot assume, without proof, that there were omissions or commissions that will relieve the defendants from liabilitv thereunder. Coleman v. Bean, supra. Plaintiff established his case, and a right to recover, when he proved the undertaking, the recovery of judgment against Balcom, the demand of payment of said judgment, and its nonpayment.

Judgment must be ordered upon the verdict in favor of plaintiff, with costs.


author: Gtildersleeve, J.

text:
    Michael Hogan, Resp’t v. Manhattan Railway Company, App’lt.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Negligence—Presumption.
    Negligence will be presumed from the circumstances oí the accident, where an iron bar falls from an elevated railroad and injures a person in the street.
    2. Appeal—Estoppel.
    The failure of the defendant, after the denial of his motion to dismiss the complaint, to ask to go to the jury upon the facts, estops him from claiming, on the appeal, that there were questions of fact which should have been passed upon by the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    (?. W. Smith, for pl’ff; Davies, Short & Townsend, (Julian T Davies and Joseph Tl. Adams, of counsel,) for deft.
   Gtildersleeve, J.

The action is brought to recover damages for personal injuries. On or about the 14th day of January, 1891, the plaintiff, while driving a coal cart on Third avenue, under the defendant’s railroad, between Seventy-Seventh and Seventy-Eight streets, in this city, was injured by an iron bar,'which fell from the defendant’s elevated railroad structure down upon the plaintiff. At the close of the plaintiff’s testimony, the defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff had failed to show any negligence on the part of the defendant. The court denied the motion, and defendant’s counsel duly excepted. The defendant called no witnesses. On plaintiff’s motion, the court then directed a verdict for the plaintiff, leaving the question of damages only for the jury. To this the defendant excepted. The jury returned a verdict in favor of plaintiff, and assessed the damages at the sum of $2,000. From the judgment entered on this verdict, and from the order denying defendant’s motion for a new trial, the defepdant appeals to the general term.

There can be no question that the plaintiff was free from contributory negligence. He was lawfully driving on Third avenue, under the defendant’s elevated railroad, when he was struck and badly injured by a bar of iron, between two and two and a half feet long, about two inches wide, and about an inch thick, which fell from the elevated structure above him. Clearly, no contributory negligence can be charged against the plaintiff.

The appeal presents but two alleged errors which demand consideration : First, the appellant claims the plaintiff failed to show or prove that the accident happened from defendant’s negligence, and that it was, therefore, error to refuse to nonsuit the plaintiff ; second, the appellant claims that the learned trial judge erred in directing a verdict for the plaintiff.

The answer to the first assignment of error is that the circumstances of the accident raise a presumption of negligence on the part of the defendant’s servants, which, in the absence of explanation, established the defendant’s liability. The construction and operation of the defendant’s elevated railroad in the public highway imposed upon the defendant, in its management, the duty of exercising reasonable care at all times to prevent the injury of persons in lawful proximity thereto. In the absence of contributory negligence on the part of the plaintiff, the defendant is liable for any injury that results from an accident like the one under consideration that can be attributed to the want of reasonable care. In the ordinary course of things, a piece of iron, such as struck the plaintiff, does not detach itself from the elevated railroad structure, and- fall to the ground. It is therefore a reasonable presumption, in the absence of any explanation, that the accident resulted from the want of ordinary care on the part of the defendant. If the accident was due to circumstances which the exercise of ordinary care could not forsee and guard against, or to the wrongful acts of others, the defendant is not liable for the injury ; but, under the circumstances of this case, the burden of showing such facts, if they existed, was placed upon the defendant. This the defendant has failed to do. The motion to dismiss the complaint was, therefore, properly denied. Mullen v. St. John, 57 N. Y. 567; Kearney v. Railroad Co., L. R. 5 Q. B. 411; Goll v. Manhattan Railway Co., 125 N. Y. 714; Lowery v. Manhattan Railway Co., 99 N. Y. 158; Volkmar v. Manhattan Railway Co., 134 N. Y. 418; 47 St. Rep. 631.

With regard to the second assignment of error, it must be held that the defendant cannot raise that point on this appeal. Defendant’s counsel, after the denial of his motion to dismiss the complaint, did not ask to go to the jury upon the facts. In such a case it has been repeatedly held that a defendant is estopped from raising the point upon appeal that there were questions of fact which should have been passed upon by the jury. The defendant having relied upon its motion to dismiss the complaint, and not having requested that any fact be submitted to the jury, cannot now properly urge that there was any question of fact for the jury. The defendant should have asked to go to the jury upon the facts. The exceptions to the ruling and direction of the court is not, under the eircumstances, available. The rule is that,where parties have, by motion for a non-suit, or by resting their defense upon certain propositions of law, waived their right to go to the jury, and have not requested to go to the jury after the motion for a nonsuit is denied, or the law held adversely to them, they are estopped from taking the point in the appellate court that there were questions to be passed upon by the jury. Ormes v. Dauchy, 82 N. Y, 443-448; O'Neill v. James, 43 N. Y., 84; Village of Port Jarvis v. First Nat. Bank, 96 N. Y., 550; Banker v. Knibloe, 69 Hun, 539 ; 53 St. Rep., 289. In view of the nature of the accident, the amount of damages awarded by the jury is not excessive.

For the reasons above stated, the judgment and order appealed from must be affirmed, with costs.

All concur.


author: Per Curiam

text:
    Ludwig Baumann, App’lt, v. Richard De Logerot et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Contracts—Validity.
    A violation of § 363 of the Penal Code does not render the contract void.
    Appeal from an order granting judgment on a demurrer as frivolous.

      Couderl Bros. (F. B. Couderi, Jr., of counsel), for app’lts; Shepard & Prentiss ( William H. Shepard, of counsel), for resp’t,
   Per Curiam

We are of the opinion that the order and judgment appealed from should be affirmed, with costs. Even if the plaintiff has, by the use of the firm name of Baumann Bros., violated the provisions of § 363 of the Penal Code, and of the Laws of 1833 (which we do not decide), he has not thereby become an ■outlaw, and lost all civil rights.

Judgment and order affirmed with costs.


author: O’Brien, J.

text:
    Robert D. Castle, App’lt, v. Corn Exchange Bank, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Bills and notes—Bona tide holder.
    A hank, receiving from another notes, checks or drafts for collection, obtains no better title to them or the proceeds than the remitting bank had, unless it becomes a purchaser for value, without notice of any defect of title.
    2. Conversion—Demand.
    One who comes lawfully in possession of property is not liable for conversion until after demand and refusal.
    •3. Same.
    But, if in such case, after notice of the rights of the true owner, he exercises dominion and ownership, demand is not necessary,
    4. Same.
    A demand by a third person, who has no relation to, or does not stand in privity with the owner, is not sufficient. v
    Appeal from a judgment entered an a verdict directed by the court in favor of the defendant, and from an order denying a motion for a new trial.

      Clark & Sanborn (.Jefferson Clark, of counsel), for app’lt; Platt é Bowers (John H. Bowers, of counsel), for resp’t
   O’Brien, J.

The facts here are substantially the same as those appearing upon the former appeal in the case of Corn Exch. Bank v. Farmers' Nat. Bank, 118 N. Y. 445 ; 29 St. Rep. 965. Though the title to the draft, or its proceeds, which is the subject of this action, was there involved, the question was not decided, because it was therein held that neither the plaintiff nor defendant in that action was the agent of the owner, and, conceding that the latter could maintain an action against plaintiff to recover the amount of the check, this was not available to defendant-as a defense, as no contract relation existed between it and the owner, nor was there any privity between them.” Acting, no doubt, upon the intimation thus given, this action was brought by the assignee of the one claiming to own the draft to recover damages for the conversion thereof. Here, the evidence showed that the plaintiff’s assignor delivered the check, which was subsequently canceled, and for which the draft involved in this action was substituted, for collection; and, as no evidence was offered on the part of the defendant tending to show that it parted with any value upon the faith of the receipt of such draft, the question of its ownership, as having received the same for value, does not arise. In determining whether the direction was right, therefore, we can assume that the law as laid down in the case of McBride v. Farmers' Bank, 26 N. Y. 450, which has been cited with approval in numerous cases, is authority for the proposition that a bank receiving from another notes, checks, or drafts for collection obtains no better title to them or the proceeds than the remitting bank had, unless it become a purchaser for value, without notice-of any defect of title. As the defendant does not claim to stand in the position of such a holder for value, it would follow that, unless there is some obstacle to the maintenance of the action, the plaintiff could recover.

There are three grounds relied upon to defeat such a recovery, only one of which we think need be considered. The facts show that the defendant came lawfully into possession of the draft, charged with the duty, as between it and the party from whom it was received, of collecting it. The original check received, for which the draft was substituted, as said by Mr. Chief Justice Follett in Corn Exch. Bank v. Farmers’ Nat. Bank, supra, “ was no longer a valid contract. The liability of the drawer and endorsers thereon was ended, and could never be restored. The Lancaster bank had legally and in good faith discharged its duty to the drawer, the endorsers, and the holder of the check, and the Corn Exchange Bank had accepted the draft of the Lancaster bank in discharge of the liability of the drawer and endorsers.” Therefore, the bank having come rightfully in possession of the draft, and having rightfully proceeded to enforce its collection, the question presented is whether the plaintiff can maintain this action without showing that he or his assignor, claiming to own the draft or the proceeds, made a demand before suit brought. The plaintiff appears to have been impressed by the importance of a demand, because in the complaint, after reciting the facts, it is alleged “ that on said day, and before such presentation of said draft, all authority of defendant to collect the same was duly countermanded and revoked, and said Cameron thereupon duly demanded that defendant at once deliver to him said draft theretofore endorsed in blank, as aforesaid.” We have examined the record, and can find no proof in support of this portion of the complaint. There is no testimony of the plaintiff’s assignor, nor of any one else on his behalf, showing a demand of the draft. In view of the authorities, we must regard it as settled law that one who comes lawfully in possession of property is not liable for conversion until after demand and refusal. Gillet v. Roberts, 57 N. Y. 28; 2 Bouv, Inst. §§ 3530-3532. In the last section (3532) it is said:

“ When the conversion is direct, as by an illegal taking or a wrongful assumption of property, or a misuse of the chattel, we have seen the conversion is complete without a demand; but to maintain trover for an indirect conversion a demand is in general indispensable, because, the defendant being lawfully in possession of the goods, there is no conversion before he assumes a property in them.”

To the same effect is the American & English Encyclopaedia of Law, (volume 4, tit. “ Conversion,” p. 115,) which not only confirms the rule as stated by Bouvier, but cites the case of Storm v. Livingston 6 Johns. 44, as authority for its statement that the demand must be made before the action is brought. The two cases relied upon by the plaintiff to show that no demand is necessary seem to us to have been ill chosen. One—that of McBride v. Farmers Bank, from which we have quoted, supra—is authority for the position that one to whom the right of action was assigned could maintain the action without demand; but this was placed expressly upon the ground that, the assignor having demanded the notes before maturity, and the proceeds afterwards, the cause of action was thus complete, and no new demand necessary. McKee v. Judd, 12 N. Y. 622, which is the other case cited" by appellant, was an action for the- wrongful taking and conversion of personal property; and it was therein held that in such an action no demand or refusal was necessary to maintain the action.

Another and a stronger position taken by appellant to obviate the necessity of a demand is that, though the original possession by defendant was lawful, and a demand to place it in the wrong would have been necessary, yet it appearing that the defendant assumed ownership, and converted the draft and proceeds to -its own use, this was such an unwarranted and unjustifiable position as to do away with the necessity of a demand. While it may be stated, as a general proposition, that where one comes lawfully in possession of property, in order that an action may lie against him for conversion, a demand is necessary, and also that, where the original taking or possession was wrongful, no demand is necessary, there is still authority for the further position that, though one may come lawfully into possession of property, if, after notice of the rights of the true owner, and regardless thereof, dominion and ownership are asserted, then demand is not necessary; or, as stated in Boice v. Brockway, 31 N. Y. 490.

“ Where the assumption of dominion over property is in hostility to the rights of the true owner, such assumption amounts in law to a conversion ; and to maintain an action for the wrongful conversion of property it is enough that the rightful owner has been deprived of it by the unauthorized act of another assuming dominion over it.”

The principle underlying these different instances of when conversion will lie is the same in all, requiring that, before an action for conversion can be maintained, the person sought to be held shall, either by his own act, or the act of the owner of the property, be placed in the wrong. Applying this principle, we think that the evidence in this case is clearly insufficient to justify the inference that the defendant, in absence of any demand, was placed in the wrong. In other words, we do not think that the testimony tended to prove that the defendant. was guilty of conversion. The only evidence that could be tortured into a demand, or assigned as supporting the theory of a conversion, is a telegraphic correspondence passing between' defendant and the maker of the check and the Farmers’ National Bank. The first of these telegrams, sent by the maker of the check, simply requested the defendant to hold the money on the draft in suit, stating that the bank to which it had been delivered for collection had suspended. In this we find no demand for the draft, either on her behalf or on that of any other person. The other dispatch was sent by the Farmers’ National Bank, and reads: “Can you hold our draft on First National, sent yesterday ? The drawer and indorser would like to have the money held for our account.” This but asks the defendant to hold the draft, and contains, in addition, a statement that the drawer and indorser would like to have the money held for their account. But here, again, no demand for the draft was made, nor is there any reference to the ownership claimed by plaintiff’s assignor. We think it appears, therefore, that no demand was ever made by plaintiff’s assignor, or by any person authorized by her to make such demand. It is true that the defendant, in answer to one of the telegrams, stated that it claimed the draft as its own. This cannot be taken as a refusal after demand by the owner, when demand was never made, because, as against both the persons sending the draft, it was the duty of the defendant— a duty which it owed to its principal, who had sent the original check to it—to .enforce the payment of the draft which was substituted therefor; and it can be hardly claimed that asserting a claim as against the drawers, or proceeding to collect the draft, which it was its duty to do, was conclusive, as between it and the true owner, of a conversion of the draft or its proceeds. To constitute conversion, there must be a claim of ownership asserted against the true owner, or, in a case where the property has come lawfully into the possession of another, there must be a demand for its return by the owner or his authorized agent. A demand by a third person who has no relation to, or does not stand in privity with, the owner, is not sufficient. In our opinion, as the defendant was never placed in the wrong, and never had any demand of it by the rightful owner, the action for conversion would not lie; and the evidence, as it stood at the close of the trial, justified the direction of a verdict in defendant’s favor, if upon no other ground, upon this ground alone. We think that the direction was right, and that the judgment appealed from should be affirmed, with costs. ■ All concur.


author: Van Brunt, P. J.

text:
    Thomas J. Deagan et al., individually and as Administrators of, etc., of Patrick Wade, Deceased, Resp’ts, v. John Von Glahn, as Temporary Administrator, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

      1. Executobs, etc.—Assets.
    A party who collects money belonging to an estate and refuses to pay it over to the temporary administrator, cannot, on becoming administrator, require the former to account therefor.

      2. Wills—Pebpbtuties.
    A devise with direction to sell, where such direction is not a limitation of the devise, but a provision for more speedy administration than the law requires, does not violate the statute against perpetuities.
    3. Same—Vesting.
    A devise to one for life, with full power to devise, but with no power to grant or convey, and, if he should die intestate, then with remainder over to his heirs, vests a fee simple.
    4. Appeal —Request to find.
    A failure to find cannot be reviewed on appeal, where no request to make such finding was presented to the referee.
    Appeal from a judgment entered on the report of a referee.

      J. F. G. Blackhurst, for app’lt Charles Wade; Abram Kling, (Charles H. O'Connor, of counsel), for app’lt John Von Glahn; Booraem, Hamilton & Beclcett, (Louis V. Booraem, of counsel), for resp’ts; Thomas J. Deagan and Cathrina F. Hyland; Townsend & Mahan, for resp’ts Mary Boyd and James Boyd; Jesse Grant Roe, for resp’ts John Hyland and others; A. B. Cruikshanh, for resp’t Mary Wade.
   Van Brunt, P. J.

The appeal herein is from so much of the judgment entered herein as construes certain parts of the will of the testator, Patrick Wade, and disallows certain items in the account of the temporary administrator. This action was brought for a construction of the will of said Wade, and for the accounting of the temporary administrator and the executor and executrix of said will. The issues in this action having been referred to a referee, after a trial he charged the temporary administrator with certain sums which the plaintiff, Hyland, had collected and refused to pay over to the temporary administrator, and he is by this decree directed to pay these sums to the plaintiffs. In other words, one of the plaintiffs has retained money belonging to the estate, which she should have paid over to the temporary administrator; and, because she did not do so, he is, by this judgment, directed to pay said sums to her. The mere statement .of this judgment seems to show its want of equity. In law the plaintiff, Hyland, is chargeable with thése moneys collected by her, and is presumed to have them in hand, and cannot now claim what she has already got from the temporary administrator.

As to the item of $250, although evidence was given in respect to this charge, no request was made to the referee to find that it was a reasonable charge, and consequently no foundation was laid for a review of his ruling. The evidence in this case is that this amount was to be in full o£ all claims for service in this action, and, as the court allowed $225 to the counsel for the temporary administrator, which was, we think, a very liberal allowance, it would seem that ihe same was substantially allowed, and the temporary administrator has no reason to complain.

The only other questions presented are those relating to the construction of the will of Patrick Wade. It is claimed upon this appeal that the third clause of the will, relating to Fo. 3 Franklin street, is in contravention of the statute against perpetuities. The clause in question is as follows:

“ Thirdly, I give, devise, and bequeath to my executor hereinafter named, his successor or substitute, my lot know as 1 Fumber Three (3) Franklin street,' in the city of Few York, with the two-houses thereon erected, and direct him to sell the same at public auction at the city of Few York, to the highest bidder, at some convenient day and place during the spring months of 1891, and to make, execute, and deliver good and sufficient deed or deeds of conveyance for the same to the purchaser at such sale.’’

And then the testator disposes of the proceeds to certain legatees. By this provision the testator created one of the express trusts provided for by the Revised Statutes, 1 Rev. St. p. 728, § 55, viz.: to-sell lands for the benefit of legatees; and the trust was not a personal one to the executor, because the devise is to the executor named in the will, his successor or substitute, who were to exercise the power. We do not think that the statute against perpetuities was violated. There was no intention to suspend the right of the executor to sell. It seems to have been the intention of the testator to secure a speedy sal^. The will was executed in September, 1890, and the testator died in October of the same year, and it seems to have been made in contemplation of death. In the ordinary course of administration the executor could have refrained from selling for nearly a year after decease, and to avoid that delay the testator gave the direction to sell in the spring months of 1891. These words were, therefore, intended to be merely directory, and not mandatory, and in no way limited the estate devised. In no case has a devise ever been held void except where an intention is expressed to suspend the power of alienation so that the ordinary method of administration could not be carried out. In the case at bar the devise was absolute, and the direction to sell was not a limitation of the devise, but a provision for more speedy administration than the law required.

In respect to the devise of Fo. 228 Mott street, it is claimed that the referee erred in holding that Charles Wade took only a life interest therein, with remainder to his heirs. The provision of the will in respect to Fo. 228 Mott street is as follows:

“Fourthly. Í give, devise, and bequeath my lot number two hundred and twenty-eight (228) Mott street, in the city of Few York, free and clear of all incumbrances, "with the two houses-thereon erected, to my son Charles Wade, for the term of his natural life, with full power to devise, but with no power to grant- or convey, the same, and, if he shall die intestate, then, with re-; mainder over, to his heirs; and I desire and direct my • executor hereinafter named to collect and receive the rents and profits of said number 228 Mott street until my said son shall arrive at the age of twenty-one years, and, after paying the taxes, assessments, and the expenses of necessary repairs on the said house, then to apply the balance of said income primarily to the support, education, and maintenance of my said son, and, if there shall be any surplus, to add the same yearly to the other moneys invested for him under the provisions of this will; and when he shall arrive at the age of twenty-one years to pay to him the whole of such accumulated sums, with the interest.”

The devise is to Charles Wade for the term of his natural life, with full power to devise, but with no power to grant or convey, the same, and, if he should die intestate, then with remainder over to his heirs. In other words, if he died intestate, his heirs were to take under ths statute of descents. Section 84, at page 733, 1 Rev. St., provides that:

“Where a general and beneficial power to devise the inheritance, shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.”

—That is, the tenant for life may sell or devise the inheritance, or creditors may cause it to be sold in satisfaction of debts; and, if neither of these things are done, upon the death of the tenant any future estates limited therein attach. So that, even if any future estates are limited upon the inheritance in question (which may well be a matter of doubt) pursuant to the provisions of the statute quoted, the tenant has an absolute power of disposition. The judgment should therefore be reversed as to the items of $57.68, $6, and $56.37, charged against the temporary administrator, and also as to the findings in respect to Wo. 228 Mott street, with costs to the plaintiff and to each of the guardians ad litem, to be paid out of the estate, and without costs to the temporary administrator. All concur.


author: Per Curiam.

text:
    Maud E. S. Depierris, App’lt, v. Henry B. Slavin et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 15, 1894.)

    Deposition—Examination before trial.
    An affidavit for an order to examine a party before trial must state tlie residence and office address of plaintiff’s attorney.

      Q. H. Adams, for pl’ff; A. H. Joline, for def’ts.
   Per Curiam.

The objection that the papers upon which the order for examination was granted did not comply with subdivision 1 of § 872 of the Code seems to be fatal to this proceeding. The order denying the motion to vacate the order for examination should be reversed, with costs, and the order vacating the examination as to persons not parties to the action should be affirmed ; upon payment of which costs, the plaintiff to have leave to renew her application for examination of defendants.


author: Parker, J.

text:
    First National Bank of Jersey City, Pl’ff, v. Emilie Huber et al., as Executors, etc., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Pabtnebshif—Limited.
    The contribution of capital by the limited partner, upon the creation of the partnership, must be paid in cash.
    2. Same—Liability.
    A false statement in the certificate and affidavit renders the special liable as general partners.
    3. Same—Abatement and bevivob.
    The liability of a special partner survives his death.
    4. Evidence—Books of account.
    Entries in the account books of the firm are competent evidence in favor of third persons against a special partner.
    A verdict was directed in favor of plaintiff, and defendant’s exceptions were ordered to be heard in the first instance at general term.

      Samuel TJnterme-yer and Maurice Untermeyer (Louis Marshall, of counsel), for def’ts; Wilson & Wallis (Hamilton Wallis, of counsel), for pl’ff.
   Parker, J.

The defendants’ testator, Otto Huber, was in his lifetime a member of the partnership of P. Lent & Co., which incurred the liability which this action is brought to recover. An action was first brought against the several members of the partnership, including defendants’ testator, but, he having died before the trial, it was revived against the surviving partners, and prosecuted to judgment. Executions issued thereon having been returned wholly unsatisfied, this action was commenced against the defendants, as executors of the last will and testament of Huber. He did not intend to become a general partner in the firm of P. Lenk & Co., but a limited partner, and the papers by which the limited partnership was sought to be created were on their face conformable to the statute authorizing such creation. But the evidence contained in the record shows that he did not comply with § 7 of the limited partnership act, (1 Rev. St. p. 765, §7), which requires uhat the sum contributed by the special partner to the common stock shall be paid in cash. The testator, Huber, was a member of a limited partnership, with the same general partners, prior to the attempt to create the partnership in question, and to the common stock of such limited partnership he had contributed $30,000, and, in addition, had loaned to' the firm $20,000. Upon the creation of the present partnership, it was agreed that the indebtedness of the firm to him, and the amount of his original contribution of capital, should be accepted as a contribution of $50,000, which the articles of partnership required him to pay in as special partner, but in so doing he did not conform to the statute, which nothing satisfies except a payment in cash. Durant v. Abendroth, 69 N. Y., 152; Van Ingen v. Whitman, 62 N. Y., 516; Kohler v. Lindenmeyr, 129 N. Y., 498; 42 St. Rep., 98. The certificate and affidavit, while regular upon their face, contained a false statement, and therefore, under the statute, the special partners became liable for the engagements of the partnership as general partners. 1 Bev. St. p. 765, § 8.

The defendants do not deny that the evidence upon which the court based its decision brought Otto Huber within the provision of § 8; but their contention is that while Huber, during his lifetime, was liable to the creditors of the firm, as if he was a general partner, the cause of action was penal in character, and died at the same time as did he. An attempt is made to show that this provision of the statute is analogous to the one which charges the trustees of a manufacturing corporation with all of its liabilities for the nonfiling of its annual report—a cause of action which it is now well settled does not survive the death of the party. But we do not think that the analogy contended for exists, for; whether § 8 be regarded as penal in its character or not, the language employed not only manifests an intention to continue the liability beyond the death of such a party as it describes, but it is appropriate and effective to accomplish that result. If it had provided that, in case any false statement be made in the certificate or affidavit, all persons interested in the partnership should be liable for its debts, some support might be presented for defendants’ contention. But the statute does not stop there. It goes further, and characterizes the kind of liability which shall arise in such event. The character and quality given to it is such that no opportunity for discussion concerning its survivorship is presented. It declares “ that in such event the persons interested in such partnership shall be liable for all the engagements thereof as general partners.’’ Thus, he is not only made liable to pay the debts of the partnership, but he is made liable in the same measure and manner as general partners ; and, as the liability of a general partner for the engagementsof his firm survive his death, so, necessarily, does the liability of a special partner when it is founded on a violation of §8. _ 1

_ ■ Defendants further insist that the court erred in receiving in evidence the books of account of the firm of P. Lenk & Co.,which, expired on the day that the new firm of P. Lenk & Co., which contracted the liability in question, came into existence. Kohler v. Lindenmeyr, supra, is relied on to support defendants’ contention. In the attempt which was made to form the limited partnership of P. Lenk & Co., now the subject of controversy, Lindenmeyr, as well as Otto Huber, was named as a special partner, and in that case the books were introduced to show that Lindenmeyr did not pay in $20,000 in cash, on its formation, but, instead, a loan made to the old firm of P. Lenk & Co., was accepted in lieu of such contribution, and it was held that inasmuch as he was not a member of the old firm, and it did not appear that he was cognizant of the entries, they were inadmissible as against him. In this case the facts were quite different. Huber was a special partner in the original firm of Lenk & Co., and the entries in the books of his firm were competent evidence in favor of third persons, as in the, nature of admissions of the facts stated. Kohler v. Lindenmeyr, supra.

There are several answers to the suggestion that while the parties failed to comply with the statute authorizing the creation of a limited partnership, by the omission of the special partners to pay in their contribution towards the capital stock in cash, the transaction nevertheless operated to renew and continue the original limited partnership. But one, however, will be alluded to. The papers do not purport to renew and continue an existing partnership, and therefore do not contain the allegations necessary to accomplish such a result. The parties to the transaction had no such intention. On the contrary, the members of the original firm of P. Benk & Co., by appropriate action on their part, caused such partnership to be dissolved, and the notice thereof to be duly published; and, having dissolved the partnership, there was none to continue, if they so desired. But they did not desire or attempt to continue it, and the court could not, if it would, make another and different contract for the parties than that which they intended and attempted. The exceptions should be overruled, and judgment ordered for the plaintiff upon the verdict, with costs.

All concur.


text:
    First National Bank of Jersey City, Resp’t, v. Emilie Huber et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Appeal—New tbial.
    A new trial will not be granted, in an action against the executors of a deceased partner, for the reason that a judgment against the surviving partners, which had been given in evidence, had been subsequently reversed as to one of the defendants therein, who had since died.
    Appeal from an order denying a motion for a new trial.
    • Guggenheimer & Untermeyev, for app’lts; Wilson & Wallis, (.Hamilton Wallis, of counsel,) for resp’t.
   Parker, J.

The trial had in the above-titled action resulted in the direction of a verdict in favor of the plaintiff, defendants’ exceptions being ordered to be heard at the general term in the first instance. We have determined at this term of the court that defendants’ exceptions should be overruled, and judgment ordered for the plaintiff upon the verdict. First Nat. Bk. of Jersey City v. Huber, 58 St. Rep. 158. The order now under review denies a motion made by the defendants for a new trial, upon the ground that a judgment introduced in evidence by the plaintiff was thereafter reversed by the general term. It is not contended that there was any error on the part of the trial court in receiving it, and the executions issued thereon, and returned unsatisfied, in evidence. Indeed, if it were error, it would have been a subject for correction on a review of the case and exceptions. But, rather, this motion was addressed to the judicial discretion of the court, and whether it was properly exercised we shall now briefly consider.

Defendants’ testator, Otto Huber, was a member of the firm of P. Lenlc & Co., when it became insolvent, some time during the year 1888. The firm was composed of Peter Lenk, Carl Lenk, Budolph Lenk, John Lindenmeyr, and Otto Huber, the last two claiming to be special partners. After their insolvency, an action was begun against the members of the firm by this plaintiff, alleging that they were all general partners. Lindenmeyr and Huber answered. The Lenks suffered default. Before the action could be tried, Huber died, leaving a last will and testament, by which these defendants were appointed his executors. The will was subsequently probated, and his executors duly qualified as such. An effort was then made by this plaintiff to join those defendants in the original action, which was denied, on the ground that the plaintiff should first exhaust its remedy, against the other members of the firm. The action then abated as to Huber, but continued against the remaining partner, resulting in a judgment against them for for $50,014.44. Executions were issued thereon to the proper counties, and returned wholly unsatisfied. Upon the trial of this action, the judgment, and the executions, with the returns indorsed thereon, were introduced in evidence, for the purpose of showing the insolvency of the partnership, and that plaintiff had exhausted its remedy in that direction. Proof of the indebtedness of the firm of P. Lenk h Co. to this plaintiff was made independently of the judgment; so the granting of a new trial, as requested by the defendants, could only be supported upon the ground that the plaintiff ought to make further proof of its inability to make the amount of its judgment, or some portion thereof, out of Lindenmeyr, for the judgment stands unreversed as to the Lenks, who were held out as the general partners in the firm. The representatives of Lindenmeyr, as to this cause of action, occupy the same relation towards the plaintiff as do the representatives of Huber. Against either the plaintiff can maintain an action to recover the claim in controversy, on proof of the insolvency of the surviving partners, and that the alleged special partners are liable as general partners. So, if a new trial should be granted, plaintiff would only have to prove that there was no partnership property out of which the executions could be made, and that the surviving partners are insolvent, and this would be prima facie established by the introduction in evidence of the judgment (which, as to them, stands unreversed) and the executions, with the indorsement thereon. As the record of the trial had contains such evidence, the court properly denied the motion.

The order should be affirmed, with $10 costs and printing disbursements.

All concur.