author: Per Curiam.

text:
    Mary C. Warren et al., Ex’rs, Resp’ts, v. William C. Banning, Individually and as Ex’r, App’lt.

      (Court of Appeals,

      Filed November 28, 1893.)

    Vendor and purchaser—Interest.
    Where the money received by an executor on a sale of land has been, deposited with a trust company at a smaller rate of interest than that, allowed by law, and the vendee, in an action to recover back the money on the ground of a want of authority in executor to sell, procures an order directing such moneys to remain on deposit until further order, and enjoining any transfer or disposition thereof, the defendant cannot be charged with a greater sum for interest than the money has earned.
    Appeal from judgment of the supreme court., general term, first department, affirming judgment in favor of plaintiffs against the defendant individually, and directing that he draw his check as executor on the trust company for the amount received on the-sale, and that the trust company pay said sum and interest.
    Action to recover back moneys paid by plaintiffs’ testator on a-purchase of land from defendant as executor on the ground that the title was defective,* and that defendant was guilty of bad faith in making the sale without disclosing the fact that litigations in-respect to the title were then pending.

      George Hill, for app’lt; George G. De Witt, for resp’ts.

      Modifying 50 St. Rep., 810

   Per Curiam.

We agree with the general term except in the-matter of interest. Of the moneys sought to be recovered, $30,-719.61 were deposited by the' defendant on April 17, 1890, in-the Union Trust Company to his credit as executor and were to draw interest at the rate of three per cent per annum. On November 7, 1890, plaintiff obtained an order in this action directing that these moneys remain on deposit with the trust company until the further order of the court, and enjoining the trust company meanwhile from making any transfer, payment or disposition of the money or any part thereof. The plaintiff, as a part- of the relief prayed for in the complaint, demanded that pending the action the defendant be directed to deposit this money into the court, there to remain subject to the further order of the court, -and in the judgment the defendant is directed to draw his check upon the trust company for the sum so deposited, with the accrued interest, in favor of the plaintiff, which the trust company is directed to pay upon presentation, the amount so paid to be credited to the defendant as a part payment of the judgment. The plaintiff having made claim to this particular fund, and having at his instance procured the court to enjoin the defendant. from using the money in any other way than by continuing it on deposit with the trust company, cannot equitably charge the defendant with a greater sum for interest than the money has earned. From the time the order was obtained directing the money to remain on deposit with the trust company until the further order of the court the money was in the custody of the court, and it was tire equivalent oí a payment into court to await final judgment in the cause.

The defendant has been made individually liable in this action j but it is clear that as to his part of the fund in controversy, it was never converted by him to his use, and the plaintiff has been permitted to recover it and its increase in specie.

We think the judgment should be modified by deducting therefrom the difference between three and six per cent interest from' May 12, 1890, to March 29, 1892, the date of entry of judgment, being the sum of $1,733.09, and as so modified the judgment should be affirmed, without costs to either party in this court.

All concur.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    In the Matter of the Settlement of the Accounts of Anna Seebeck, Ex’rx.

      (Court of Appeals,

      Filed November 28, 1893.)

    W ill—Construction .
    By testator’s will he devised certain real estate to his sister, with remainder to her children in equal shares. This was revoked by a codicil, and in lieu thereof it was provided that the executors should lease the property and pay $600 annually to the sister for life, and the balance "to the children of my said sister in equal shares.-’ By the twentieth clause of the will the residue of the estate was given to the sister’s children in equal shares. By the codicil it was also provided that one of said children should not receive the fee, but only the income of one-fourth of the residue for life, the fee to go to his children on his death. Held, that the children referred to were those living at the time of the testator’s death; that their rights in. the real property and the surplus income vested immediately on testator’s death, and were not divested by the death of one of them in the lifetime of their mother.
    Appeal by Anna M. Tienken from judgment of the supreme, court, general term, second department, reversing decree of the surrogate of Kings county adjudging that appellant had an interest in the estate of John H. Seebeck, deceased.

      Theodore N. Melvin, for app’lt; Matthew Hale and George F. Martens, for resp’ts.

      Reversing 50 St. Rep., 936.

   Maynard, J.

By the nineteenth clause of a will made May 20, 1880, the testator devised to his sister certain real property in the city of Brooklyn during her life, with remainder to her children in equal shares, and in case any of the children should be dead leaving lawful issue surviving such issue should take the share which the parent would have taken if living. By the twentieth clause he gave the residue of his estate to his sister’s children in equal shares, to have and to hold the same to them, their executors, administrators and assigns forever. By the third paragraph of a codicil made April 9, 1881, he revoked and annulled the nineteenth clause of his will, and in lieu thereof he directed his executors to let the premises described therein, and out of the income arising therefrom to pay to 1ns sister the sum of $600 annually in quarterly instalments, and to pay over the balance of the net income to his sister’s children in equal shares. He made some other changes in his will not now material to be noticed, and ratified and confirmed it in all other respects. The provision of the codicil was thus substituted for the nineteenth clause of the will in its entirety; and the legal effect of the instrument, so far as it disposed of the real property in question, was to devise it to the sister’s children, subject to the execution by his executors of a power in trust to let it for the lifetime of his sister and pay to her annually the sum of $600, and to her children in equal shares the balance of the net income. The testator died in 1881. Four children of his sister were then living, of whom Henry M. Tienken was one.

The executors rented the real property and distributed the income as required until October 31, 1889, when Henry M. Tienken died, which event gave rise to the present controversy. It was then insisted by the surviving children of the testator’s sister that the personal representatives of the deceased brother were not entitled to share in the distribution of the balance of the net .income of tliis real property; that the executors were directed to pajr it to tire sister’s children, and that they took as a class and not distributively, and that upon the death of Henry M. Tienken the surviving children became entitled to the whole. The surrogate decided otherwise, and held that the widow of Henry M. Tienken, who was the sole devisee and legatee under his will, was entitled to the share of the income which he would have taken if living.

The General Term, by a divided court, reversed the decree of the surrogate in this respect, and held that the surviving children took the entire surplus income, to the exclusion of the representative of the deceased child, and the correctness of this decision presents the only question involved in this appeal.

The respondents rely upon the rule that where there is no gift except by a direction to executors or trustees to pay or divide at a future time, the gift does not vest in the beneficiary until that time arrives, and inasm uch as in the nineteenth clause of the will, as modified by the codicil, there is no gift in express terms to anybody, but only a direction to rent the property and distribute the income from time to time, only such persons are entitled to share in the distribution as correspond to the designated class of beneficiaries existing at the time when each distribution is made. But the law favors the vesting of legacies, and this rule has many excejrtions engrafted upon it, not the least important of which is that it must be subordinated to the intent of the testator, to be gathered from the entire testamentary scheme. Bowditch v. Ayrault, 138 N. Y., 222; 52 St. Rep., 330. It is evident that the primary object of the creation of the power in trust in this case was to secure to the testator’s sister an annual income of $600, ¡rajable out of the rents of the real property, and the same persons are made the beneficiaries of the balance of the income who will become entitled to the corpus of the estate after the death of the sister. It is conceded that the power in trust will not survive her death, and that all of her children acquired a present vested title in the real property immediately upon the death of the testator, subject only to the execution of the trust power.

These two clauses of the will are closely related, and should receive the same construction as would be given them if both had been incorporated in the same paragraph. The testator’s object is very clear. He sought to secure to his sister a definite annual income out of the rents and profits of certain real property, which he had devised, to her children in equal shares; but as these rents and profits might be more than sufficient to produce the required income for his sister, he provides that her children, who are upon her death to be entitled to the real property itself, shall take the balance of the income in equal shares. The title to this part of the income was to vest in the same parties as the body of the estate which produced it, and precisely the same words are used to denote the beneficiaries in the one case as the other. There are no words of survivorship, and no good reason has been shown or •suggested why it should be held that the children of the sister should take as a class in one case, and distributively in the other. It does not appear that they were minors living together as one family, and that this income was designed for their support collectively. It is more reasonable to infer that he intended that the gift of the surplus income should take the same direction as the land out of which it issued. The children of the .sister took the income as tenants in common, and not as joint tenants. It was to be divided between them in equal shares, and any mode of expression which denotes a severance is sufficient to create a tenancy in common. By the well-settled rules of testamentary construction the children referred to are those living at the testator’s death. The rights of after-born children are not involved.

We think the intent of the testator is further evidenced by the modification of ths twentieth clause made by the fourth paragraph of the codicil, where he provides that one of the children shall not receive the fee, but only the income of one-fourth of the residuary estate during his lifetime, and that the fee shall go to his children after his death. It is evident that he contemplated a division of income into four equal parts to correspond with the number of children living at his death. But, under the claim of the respondent, if all the children except this one should die in the lifetime of the mother, he would be entitled during her life to the entire surplus income.

We think in the present case that it is clear that the testator intended that the right of his sister’s children to this real property and to the surplus income should vest in them immediately upon His death, and that the enjoyment only of the possession of the fee and of the income should be postponed, and that it is not distinguishable in principle from Goebel v. Wolf, 113 N. Y., 405; 23 St. Rep., 176, and In re Tienken, 131 N. Y., 391; 43 St. Rep., 184.

The judgment and order of the general term, and the decree of the surrogate must be reversed and the order of the surrogate appealed from affirmed, with costs in this court to the appellant, to-be paid out of the estate, and the proceeding remitted to the surrogate’s court for a further hearing.

All concur.


author: O’Brien, J.

text:
    Mary L. Trippe, Adm’rx, Resp’t, v. The Provident FundSociety, App’lt.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Insurance (Accident)—Notice oe injury.
    The certificate under which plaintiff’s intestate was insured by defendant required a notice of any injury to be in writing, stating full particulars of the accident and injury, and that a failure to give such written notice within ten days from the date of either injury or death should invalidate any claim thereunder. The intestate occupied a store in a building which fell, -and as he was missing search was made and his body found in the ruins three days later. Held, that under the circumstances, the reasonable construction of the condition is that the ten days within which the notice is to be given did not begin to run from the date of the accident, but from the time when the body was found, and the fact of the death and the particulars of the accident ascertained.
    2 Same—Waives.
    Defendant retained the notice and furnished blanks for proofs of loss, and subsequently required further information, which was given. Held,, that these acts were consistent only with the theory that the contract was-still considered in force, and that defendant could not thereafter claim that the obligations of the policy had virtually ceased because of failure to serve the notice in time.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiff, entered on. verdict.

      John L. Hill, for app’lt; Wm. Henry Arnoux, for resp’t.

       Affirming 52 St. Rep., 322.

   O’Brien, J.

The defendant is an accident insurance company,, upon the co-operative or assessment plan, and on the 13th day of March, 1891, issued its policy or certificate to Frederick W. Trippe, the plaintiff’s intestate, whereby it agreed upon the considerations referred to in the instrument to pay to him certain sums specified as a weekly indemnity on account of disability from accidents within the terms of the contract, and also the sum of $5,000 in case of death “ through external, violent and accidental means.” • The place of business of the insured was in a building near Park place, in the city of New York, which, on the 22d of August, 1891, fell, crushing to death in the ruins several of the occupants, and among them the insured. The destruction of this building, and the consequent loss of life, is known in the events of that year as the “Park place disaster.”' The claim is-resisted by the defendant upon the ground that certain conditions expressed in the certificate, which were warranties or conditions precedent to liability, have not been complied with. The most important question, and that most strenuously insisted upon by the defendant, arises upon the following condition :

“ Notice of any accidental injury for which claim is to be made under this certificate shall be given in writing, addressed to the president of the society at New York, stating the full name, occupation and address of the injured member, with full particulars of the accident and injury, and failure to give' such written notice within ten days from the date of either injury or death shall invalidate any and all claims under this certificate.”

There is nothing in the case to create any doubt as to the fact that the insured was killed on the day of the accident, but the fact was not known until the twenty-fifth, when the body was found among the ruins and identified. Notice of the death was given to the defendant on the 2d day of September, which was within the ten days from the discovery of the body, but not within ten days from the day of the accident, when, as the defendant insists, the death must have occurred. The condition upon which the defense is based was to operate upon the contract of insurance only subsequent to the fact of a loss. It must, therefore, receive a liberal and reasonable construction in favor of the beneficiaries under the contract. McNally v. Phoenix Ins. Co., 137 N. Y., 389; 50 St. Rep., 680. The provision requires not only notice of the death, but “full particulars of the accident and injury.” It is quite conceivable that in many cases of death by accident the fact cannot be and is not known until days or even weeks after it has occurred. Such conditions in a policy of insurance must be considered as inserted for some reasonable and practical purpose, and not with a view of defeating a recovery in case of loss by requiring the parties interested to do something manifestly impossible. The object of the notice was to enable the defendant, within a reasonable time after the. death or injury, to inquire into all the facts and circumstances while they were fresh in the memory of witnesses, in order to determine whether it was liable or not upon its contract. The full particulars of the death which the condition requires cannot ordinarily be furnished until the fact of death and the manner in which it occurred are ascertained. In this case all that was known prior to the twenty-fifth of August, when the body was found, was the fact that the deceased had his place of business in the building and that it had been destroyed. But it did not follow from these facts that the insured was dead, as he might have been absent from the building at the time or in some way escaped from the result of the accident, and a notice served upon the defendant prior to the time when the body was found, and the fact •of death ascertained, would not be within the object or terms of the condition. The parties having contracted that the notice of death should be accompanied by full particulars of the manner in which it occurred and the attendant circumstances, they evidently intended that it should be given only when the fact and manner of death became known to the parties who were required to act.

The fair and reasonable construction of this condition, therefore, is that the ten days within which the notice is to be given did not begin to run from the date of the accident or the disappearance of the insured, but from the time when the body was found, and the important fact of death, with the circumstances and particulars under which it occurred, ascertained. This construction secures to the defendant every benefit and advantage that was intended by the provision of the policy, and it cannot,, therefore, complain if the very harsh and technical meaning which 'it now seeks to put upon a condition subsequent is rejected. The plaintiff was the widow of the deceased and the beneficiary named in the certificate. She was the only party interested in the enforcement of the contract, and who could give the notice, and she could not give it, within the meaning of the condition, until she had knowledge of the facts which she was bound to communicate. To hold that the plaintiff was bound to give notice of the death of her husband, with full particulars, before she had any knowledge of the facts, would be to require her, by a technical and literal construction, to do an impossible thing, which was not within the intention of the parties when the contract was made. Insurance Companies v. Boykin, 12 Wall., 433.

But even if the defendant’s construction of this condition was correct, we think by its acts the objection has been waived and cannot now be urged as a defense. The notice served on the 2d of September was retained without objection, and another served on the 15th of October, after the plaintiff had been appointed administratrix. On the 12th day of October, upon written application to the defendant, it furnished the necessary blanks for proofs of loss. These proofs were made and forwarded to the defendant in compliance with the terms of the contract, and were retained without objection. On the 19th of March following, the defendant called for further information, which was given. It is well settled that such defenses are waived when the company, with knowledge of all the facts, requires the assured by virtue of the contract to do some act, or incur some expense or trouble inconsistent with the claim that the contract had become inoperative in consequence of a breach of some of the conditions. McNally v. Phoenix Ins. Co., supra; Roby v. Am. Cent. Ins. Co., 120 N. Y., 510; 31 St. Rep., 560; Titus v. Glens Falls Ins. Co., 81 N. Y., 410, 419 ; Benninghoff v. Ag. Ins. Co., 93 id., 495; Goodwin v. Mass. Mut. Life Ins. Co., 73 id., 480; Brink v. Hanover Fire Ins. Co., 80 id., 108; Jones v. Howard Ins. Co., 117 id., 103; 26 St. Rep., 844; Armstrong v. Ag. Ins. Co., 130 N. Y., 560; 42 St. Rep., 555; Travelers' Ins. Co. v. Edwards, 122 U. S., 457.

The .acts of the defendant in receiving and retaining these papers without objection, and calling for others, are consistent only with the theory that the contract was still considered in force, and as the plaintiff acted accordingly in performance of its conditions, subsequent to the loss, the defendant ought not to be permitted now to change its position and assert that after ten days from the accident the obligations of the policy virtually ceased by reason of failure within that time to serve notice of-death.

The deceased stated in his application, which is part of the policy, and a warranty, that his business was that of a “ wholesale drug merchant.” It is now urged that the contract is avoided for the reason that this statement or representation was untrue. This point is based upon evidence tending to show that some of the articles which the deceased kept in his store and dealt in were of such a character as to deprive him of the right to be classified for accidental insurance as a wholesale druggist. Without further reference to the merits of this objection, it is sufficient to say that it is not available to the defendant in this court for the reason that the testimony introduced did not conclusively establish any breach of warranty in this respect. At best, the question was one of fact, and the disposition made of it by the learned trial judge was sufficiently favorable to the defendant when he submitted it to the jury. No exception was taken by the defendant to this course or to the instructions given by the court to the jury upon the submission of the question, and obviously none could have been. In fact, the only question submitted to the jury was whether this statement was true. The only objection that the defendant made to this disposition of the case was to request a submission also of the question as to the date of the death of the insured, which request was properly refused as the sufficiency of the notice of death served presented a question of law.

The other exceptions in the record have been examined, and as they disclose no error prejudicial to the defendant the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Rosalie A. Bleakley, Resp’t, v. Timothy J. Sullivan, Impl’d, App’lt.1

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Appeal—Stipulations.
    Where the parties upon the trial limit the controversy, by stipulation, to the determination of a specific question, the appellate court cannot go beyond the range of inquiry which they have defined.
    2. Lease—Covenant in favor of lessor.
    A lease of a brickyard gave the lessees the right to take material from the premises, and provided that they should at all times keep on the premises sufficieut brick to pay one quarter’s rent, but contained no provision reserving title to such brick in the lessor. The lessees mortgaged the brick to defendant S., which mortgage was duly filed and possession subsequently taken by S., who paid the rent for the current quarter. Held, that under the lease the brick belonged to the lessees, and a purchaser from them in good faith and for value was not affected by the personal covenant in the lease, except so far as the property purchased was subject to a charge for rent accruing or accrued, and that 8., when he paid such rent, discharged whatever claim the lessor had upon them.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Franklin Couch, for app’lt; S. W. Rosendale, for resp’t.
   Maynard, J.

The defendants McGuire and Griswold leased of the plaintiff a brickyard, with the privilege of taking clay and tempering sand for the manufacture of brick from adjoining lands, for the period of five years, at a rent of fifty cents per thousand for all brick manufactured in any year, not less than three and one-half millions, payable quarterly. The lease provided that •after the first quarter’s rent became due, the lessees should keep ■upon the yard bz-iclt sufficient to pay one-quarter’s rent, and if the rent was not paid the plaintiff might either re-enter and take possession of the yard, or she might take from it and sell at market prices sufficient brick to pay the rent due, with the necessary expenses of taking and selling the same. The quantity of brick required to pay one-quarter’s rent may, for the purposes of this action, be deemed to be 125,000. The lease was executed April '28,1890. The first quarter’s rent became due July 1st, which was paid, and also the rent which fell due October 1st. October 20th the defendant Sullivan loaned to the lessees $6,500, which, with previous loans, amounted to $13,500; and the lessees executed to him a chattel mortgage by which they sold to him all the brick then upon the yard to secure the payment on demand of the moneys thus loaned, which mortgage was filed as required by law. The plaintiff’s lease was filed in the clerk’s office of the town where the yard was situated and one of the lessees resided, but not in the city of Albany, where the other lessee lived. When Sullivan took his mortgage he had no actual notice or knowledge of the existence of the condition in the lease. The case does not disclose the precise date when he assumed possession of the property, but it is shown that after giving notice he sold it at public-auction on January 12, 1891, and became the purchaser at such sale. He also paid the rent to' plaintiff which became due on January 1st. Subsequently, and before February 7th, Sullivan began to remove the brick from the yard, when plaintiff brought this action to procure -a permanent injunction restraining him from removing so much of the brick as might be required to pay the rent falling due April 1st, and obtained a preliminary injunction order restraining him from removing 125,000 during the pendency of the action.

By a stipulation of the parties, it was agreed that Sullivan should pay the rent falling due April 1st if it should be legally determined that on February 7th the plaintiff had a lien upon the brick paramount to his title under the chattel mortgage and the foreclosure thereof, and in consideration of this agreement the temporary injunction was dissolved and Sullivan was permitted to remove the brick, leaving only the question of the lien to be decided by the court.

The special term found, as a conclusion of law, from these facts, that the lease secured to the plaintiff a valid equitable lien upon the brick, which was superior to defendants’ right, and she was, therefore, entitled to judgment. The general term affirmed the judgment, not upon the ground that plaintiff had a lien upon the property, but because she had the title to the materials out of which the brick were manufactured, and, therefore, the title to the manufactured product, with which she had never parted, but which, by the terms of the lease, she had reserved to herself.

The plaintiff has, we think, precluded herself by her stipulation from raising this question, or relying upon it to defeat the title of the appellant. The parties have limited the controversy, as they might lawfully do, to the determination of a specific question, and we cannot go beyond the range of inquiry which they have defined. H. K. & S. Bk. Corp. v. Cooper, 114 N. Y., 388; 23 St. Rep., 787.

By their agreement it is admitted that the title to this property is in the appellant, and the judgment of the court is sought only upon the question whether that title is subject to a valid and subsisting lien of the plaintiff under the terms and provisions of her lease to the other defendants. It is not, however, to be inferred that we assent to the proposition asserted by the court below, that under this lease the title to a sufficient quantity of brick to pay ■one quarters rent always remained in the lessor until the rent was paid; and inasmuch as even upon the punctual payment of one quarter’s rent there began to accrue, eo instanti, another quarter’s rent, there must, therefore, always be upon the • premises brick enough to pay at least a quarter’s rent. There is not in the instrument any provision reserving the title to these brick in the plaintiff, or stipulating that the title shall remain in her until the last quarter's rent is paid. The case is barren of the feature which has been held controlling in the cases cited by counsel, where there has been an express reservation of the title of personal property leased or transferred, and of everything potentially derivable from it, until the rent or purchase price was paid. Andrews v. Newcomb, 32 N. Y., 417; Wisner v. Ocumpaugh, 71 id., 113; McCaffrey v. Woodin, 65 id., 459.

Under this lease the brick, when manufactured, belonged to the lessees; they became invested with the full legal title, including the jus disponendi, and a purchaser from them in good faith, and for value, was not affected by the personal covenants in the instrument, except so far as the property purchased was subject to a charge for the rent accruing or accrued. We think full effect ■can be given to the stipulations in this lease by holding that whatever charge they created was limited to the rent due or accruing at the time the sale of the property took place.

By the chattel mortgage the lessees transferred to the appellant the entire legal title, and when he paid the rent which fell due the first quarter day thereafter, he discharged whatever claim the plaintiff had thereon at the time of the sale to him. On ■January 1, 1891, the lessees had no brick belonging to them upon the premises, and hence there was no property upon which the conditions in the lease could operate. It is manifest that the parties contemplated a continuous manufacture of brick, and the sale of the manufactured product, with a proviso that sufficient should be left on tiie premises during any quarter to satisfy the quarter’s rent.

There is nothing in the language employed or the scope of the instrument which suggests that it was the intention of the parties to create a charge upon the brick which might be manufactured during the first quarter which should continue until the last quarter’s term of the five years term should be paid, and which should follow the property into the hands of an innocent purchaser for value.

As the appellant discharged whatever claim plaintiff may have had upon the property at the time of its purchase by him, it is not important to determine the precise character of the plaintiff’s interest in the property. The peculiar provisions of the lease are undoubtedly enforcible as between the parties. How far it may be treated as a chattel mortgage so as to affect the intervening rights of purchasers for value, and without actual notice, is a question which does not admit of easy solution, and it is unnecessary here to decide it. In no view of the situation was the appellant bound to leave upon the yard the brick which he had purchased and paid for as security for any rent accruing later than the first quarter day after the title had become vested in him.

The judgments of the general and special terms must be reversed and a new trial granted, with costs "to abide event.

All concur.

       Reversing 42 St. Rep., 814.


author: Bischoff, J.

text:
    Lester Jacobs, Resp’t, v. John Day et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 6, 1893.)

    1. Sale—Sample.
    Plaintiff's assignor called at defendants’ store to purchase raisins and was shown a sample by one of the defendants, who assured her that the rest corresponded thereto. A day or so after she called again, when the salesman opened one box, which he showed her, but refused to open any more, as he had no time to do so. She bought 103 boxes, but on examination found twelve of them to be inferior to the sample. Held, that the sale was one by sample; that plaintiff was entitled to a reasonable time after delivery to examine the goods before acceptance would be presumed, and upon discovering their inferiority to rescind the sale and return them.

      2. Accobd and satisfaction.
    Upon discovering that the contents of the boxes was inferior to the sample plaintiff’s assignor tendered a return of them, which was refused, and a portion of the purchase money was tendered, which she accepted. Held, that this did not constitute an accord and satisfaction, as upon a refusal to accept a return plaintiff’s assignor had no alternative but to keep the goods in her possession.
    3. Same—Pleading.
    The defense of accord and satisfaction is an affirmative one, and should be pleaded.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the second judicial district.
    Action to recover return of the balance of the purchase money paid by plaintiff’s assignor on the sale of merchandise by sample, the sale having been rescinded by the buyer on the ground that the bulk delivered failed to correspond to the sample shown at the time of the sale.

      S. Feuchtwanger, for resp’t; Chas. W. Dayton, for app’lt.
   Bischoff, J.

The circumstance, merely, that at the time of the sale a sample was produced is not sufficient to constitute the sale one “ by sample.” Hargous v. Stone, 5 N. Y., 73 ; Beirne v. Dord, id., 95. To have that effect it must be fairly inferable from the evidence that the parties mutually understood, or at least that the seller intended the buyer to understand, that the bulk of the commodity sold should in kind and quality be equal to the sample shown. Beirne v. Dord, supra ; Ames v. Jones, 77 N. Y., 614. That a portion of the bulk of the goods sold was examined by the buyer at the time of the sale is not conclusive that the sale was not “ by sample.” Am. & Eng. Ency. of Law, Yol. 10, p. 167; Gallagher et al. v. Waring et al, 9 Wend., 20. Neither is a sale conclusively one “ by sample ” because at the time of the sale a sample was produced and it was inconvenient or impracticable to examine the bulk of the goods sold. Beirne v. Dord, supra. These circumstances, however, should be duly considered in arriving at a conclusion that the sale was or was not one by sample.” Oases above cited. The question therefore is in every case one of the intention of the parties to be determined from the evidence.

Plaintiff’s assignor testified that she called at, defendants’ place of business to purchase raisins; that one of the defendants opened a box from which he took a sample which he showed her; that she inquired of him if the remainder of the raisins corresponded to the sample shown and that he assured her that such was the fact; that a day or two thereafter she again called at defendants’ place of business and met one Luther, a salesman ; that she asked Luther to show her the raisins ; that the latter opened one box which he exhibited to her and refused to open any other on the plea that he had no time; that she thereupon agreed to purchase the lot, which consisted of 103 boxes, and paid twenty dollars on account of the purchase money.

Plaintiff’s, assignor further testified that thereafter she paid thirty dollars more; that fifty boxes of raisins were delivered to her; that she at once examined a dozen of the boxes delivered; that their contents were inferior to the sample shown and the one box opened at the time of the sale; that on the next day succeeding the delivery she tendered return of the fifty boxes to defendants and refused to accept the remainder; that defendants refused to accept return of the raisins, but returned her twenty dollars of the fifty dollars which were paid by her on account of the purchase money. Henry M. Day, one of the defendants, and Luther, the salesman, testified to a different version of the facts alleged to have transpired at the time of the sale, but as it was the province of the trial justice to determine the facts upon conflicting testimony we must, for the purposes of this appeal, assume the facts to be as plaintiff’s assignor testified.

The production of a sample, the assurance of one of the defendants that the bulk of the raisins corresponded to it, the demand by plaintiff’s assignor to be permitted to examine the bulk, and that such examination would have entailed the necessity of opening upwards of one hundred boxes, are facts which, taken in connection with the further fact that defendants’ salesman refused to accord plaintiff’s assignor an opportunity to examine more than one box, reasonably lead to the inference that it was intended at the time of the sale that plaintiff’s assignor should rely on the sample shown, and her testimony indicates that by force of cir•cumstances she did so. Within the cases hereinbefore cited the :sixle to her must, therefore, be deemed to have been one “by sample.” Such a sale is upon an implied condition precedent that the bulk of the goods sold corresponds to the sample. The buyer is entitled after delivery to a reasonable time within which to examine the bulk before acceptance will be presumed, and upon breach of the condition he may rescind the sale and offer to return the goods. Benjamin on Sales, § 895; Osborn v. Gantz, 60 N. Y., 540. _ ■

_ It was not necesssary for plaintiff to show that the contents of •every box delivered did not correspond to the sample. It was sufficient that a substantial quantitjr of the raisins delivered was deficient in that respect to justify the rejection by plaintiff’s assignor of all, since she could not be compelled to accept part delivery in performance of the contract of sale on defendants’ part. .Benjamin on Sales, § 690.

It appears that upon the tender of return of the fifty boxes ■delivered defendants refused to receive them that one of the defendants told plaintiff’s assignor to remove them, which she did, and that defendants at the same time returned to her twenty dollars of thfe fifty dollars paid on account of the purchase money, which she accepted. These facts, it is contended for appellants, constitute an accord and satisfaction. To support such a plea, however, every element of a valid agreement to relinquish the remainder of the claim must be-present. Lawson’s Eights, Eemedies & Practice, vol. 5, p. 4228, § 2567 ; Am. & Eng. Ency. of Law, vol. I, p. 94; Parsons on Contracts, vol. 2, p. 681, § 4, vol. 1, p.8, § 3 ; Kromer v. Heim,, 75 N. Y., 574; Fuller v. Kemp, 40 St.Rep., 672 ; 138 N. Y. 231, 235; 52 St. Rep., 342. The evidence in the present -case is palpably insufficient to establish the aggregatio mentium, since upon defendants’ refusal to accept return of the raisins delivered plaintiff’s assignor had no alternative but to keep them- in her possession, and that fact alone, therefore, is inconclusive of her voluntary acceptance of the goods which appellants urge as part consideration for the alleged agreement of accord and satisfaction. The defense, in any event, is an affirmative one and should have been pleaded. It is too late to urge it for the first time on appeal.

Exceptions to rulings respecting the admission or exclusion of evidence are not urged as presenting grounds for reversal. The judgment should, therefore, be affirmed, with costs.

. Gtegerich, J., concurs.


text:
    Henry Siefke, App’lt, v. Herman Siefke, Jr., Resp’t.

      (New York Common Pleas, General Term,

      Filed November 6, 1893.)

    Monet loaned—Weight of evidence.
    In an action for money loaned, plaintiff testified that he loaned defendant the money to buy a suit of clothes, and was corroborated by his wife and a witness who testified that defendant had promised to call and settle. Defendant denied the loan, and gave evidence tending to show that about the time of the alleged loan he purchased a suit ef clothes which his uncle paid for, and in this was corroborated by the person who sold the clothes and two other witnesses. Held, that a judgment in favor of defendant should not be reversed as against the weight of evidence.
    Appeal from a judgment for defendant rendered by the district court in the city of FTew York for the eighth judicial district. Action to recover for money alleged to have been loaned to defendant.

      Bliss & Schley, for app’lt; Wm. Allen, for resp’t.
   Bischoff, J.

Plaintiff testified that in the early part of October, 1889, he loaned defendant forty-five dollars wherewith to-purchase a suit of clothes for personal use. In this he was directly corroborated by his wife and indirectly by Burchill, who deposed that upon demand of repayment defendant promised to-call upon plaintiff and settle. Defendant, on the other hand, flatly contradicted the witness mentioned, and was allowed without objection to introduce evidence tending to show that about the time of the alleged loan he purchased a suit of clothes of one Batzing, for which F. Siefke, an uncle of defendant, paid. Defendant, Batzing, Mrs. W. D. Siefke and Minnie Salb each testified to the last-mentioned effect. The justice below rendered judgment for defendant, and we are asked to reverse it as against the weight of the evidence.

Testimony tending to prove alleged oral admissions of a fact, depending for its accuracy upon the intelligence of the witness, the reliability of his recollection, the difficulty of imparting the inflections and deflections of voice and the gestures accompanying the alleged admission, all of which is material to convey the true sense in which the person charged with the admission wished to be understood, is evidence of an inferior degree, and not to be received without extreme caution in the consideration of the weight of the evidence for and against an alleged fact. 1 Greenl. on Ev., § 200; Steffens v. Steffens, 16 Daly, 363, 369; 33 St. Rep., 643. Plaintiff’s testimony was subject to discredit, without direct impeachment of his credibility, as that of a party interested in the event of the action, and while his wife had no such direct interest, she was nevertheless remotely interested in the issue of the trial favorably to her husband. Besides, the manner and demeanor of a witness while under examination, indicating bias, recklessness, confused recollection or defective memory, may properly aid in the determination of the degree of credibility which should be attributed to his statements.

The trial justice having the advantage, therefore, of observing the witness, an appellate court is not warranted in disturbing his determination of the facts upon conflicting evidence only on the ground that a greater number of witnesses testified to the contrary. Baird v. Mayor, etc., 96 N. Y., 567, 577; Rice on Evidence, Vol. 2, p. 789.

Inconsistency of the several parts of his testimony and improbability of the truth of his narration are among the essential tests which should be applied to the testimony of a witness in determining the degree of his credibility and the facts in evidence, Rice on Evidence, Yol. 2, p. 788; and under the illumination of these tests we cannot say that defendant falsely asserted that he never received the sum plaintiff claimed to have loaned him, and that he never applied for the alleged loan.

The judgment appealed from should be affirmed, with costs.

Gtegerich, J., concurs.


text:
    Louis Kaufman, Resp’t, v. Samuel Bloch, App’lt.

      (New York Common Pleas, General Term,

      Filed November 6, 1893.)

    1. Trial—Variance.
    While ordinarily the recovery must be secundum allegata et probata, yet it is competent for the parties to consent to the litigation of a cause of action other than the one pleaded, and consent is inferable from the fact that evidence of the substituted cause of action was received without objection.
    2. Brokers—Agreement to divide commissions—Evidence.
    In an action,between real estate brokers upon an alleged agreement to divide commissions upon a sale of property, evidence as to whether or not the vendor requested defendant to pay plaintiff a part of the commissions is immaterial.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the fourth judicial district.
    Action to recover for moneys alleged to have been had and received to plaintiff’s use.

      Charles Goldzier, for resp’t; Samuel Muller, for app’lt.
   Bischoff, J.

The complaint was in form for money had and received to plaintiff’s use, and the recovery was upon defendant’s promise to divide his commissions as a real estate broker to be received upon the sale of certain real property which had been given to plaintiff for sale and which the latter had employed defendant to sell. Ordinarily the rule that the recovery must be secundum allegata et probata should prevail. Romeyn v. Sickles, 1 Silv. Ct. App, 594; 13 St. Rep., 864. It is competent to the parties, however, to consent to the litigation of a 'cause of action other than the one pleaded, and consent is inferable from the fact that evidence of the substituted cause of action was received without objection. Frear v. Sweet, 118 N. Y., 454; 29 St. Rep., 972. In the present instance, therefore, the judgment is unassailable because of variance between the pleadings and the proof as appellant contends.

Whether or not, the vendor requested defendant to pay part of the commissions to plaintiff could not in anywise affect plaintiff’s right to recover upon the agreement with defendant to divide the commissions. In either event plaintiff was entitled to recover if the agreement was in fact made. The exclusion of evidence tending to show that the vendor did. or did not make the request alluded to cannot therefore be said to constitute error.

Again, whether or not. the agreement to. divide the commissions was made was a question to be determined by the justice below upon the conflicting testimony of the parties to this action, and the apparent inconsistency of defendant’s testimony with that of other and disinterested witnesses regarding other facts, we think, authorized the justice to credit plaintiff rather than defendant.

The judgment should be affirmed, with costs.

Giegerich, J., concurs.


text:
    Henry Mensing, App’lt, v. Charles Z. Birnbaum, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 6, 1893.)

    Contract—Agency.
    In an action for breach of contract, where the contract was denied, plaintiff’s evidence tended to show an employment by one who assumed to act for defendant, but the evidence was conflicting as to whether such person had authority so to act. Held, that a decision by the justice adverse to plaintiff would not be disturbed.
    Appeal from a judgment for defendant recovered in the district court in the city of New York for the fourth judicial district.
    Action to recover damages for defendant’s alleged breach of a contract of employment with plaintiff’s assignor.

      Herbert J. Hindes, for app’lt; Nathan S. Levy, for resp’t.
   Bischoff, J.

Plaintiff sued as assignee of one Hampton, an actor, to recover damages for the alleged breach of a contract of employment to perform at defendant’s museum for one week, commencing May 1st, for seventy-five dollars, defendant having refused to receive the services on the day mentioned. The court below rendered judgment for defendant.

The contract of employment was denied by defendant, and it was thus incumbent upon plaintiff to establish it by sufficient evidence Towards that end plaintiff proved that the contract was made with one Lyman, who assumed to act for defendant, and that Lyman claimed to act upon the instructions of Adams, defendant’s general manager and business agent. Lyman, called as a witness for plaintiff, testified that Adams instructed him to employ plaintiff’s assignor for one week, commencing May 1st, at seventy-five dollars. Adams, however, as a witness for defendant, deposed that he had not instructed Lyman to employ plaintiff’s assignor, and further that he had only inquired of Lyman, who was engaged in the business of negotiating such contracts, to know if Hampton would be willing to accept an engagement at defendant’s museum for one week at seventy-five dollars, leaving the date for the co'mmencement of Hampton’s services to be agreed upon after Hampton’s willingness to make the contract had been ascertained. Hampton, also examined as a witness for plaintiff, sought to corroborate Lyman by testifying to an interview with Adams, at which the latter is alleged to have said that he had decided to postpone the time for the commencement of Hampton’s services to May 8th. Adams’ version of this interview, however, is to the effect that he told Hampton that he would engage him for one week, commencing May 8th.

Accepting Adams’ testimony as true, the facts do not warrant the interpretation that Lyman was authorized to conclude a contract for defendant with plaintiff’s assignor, and that what passed between them was more than matter of mere preliminary negotiation ; and upon the conflict of evidence it was the province of the-trial justice, no jury trial having been asked for, to determine the-facts, and with his determination of them adversely to plaintiff we can (discover no sufficient ground for our interference. In effect,, the justice determined that Lyman was not instructed to enter into-any contract whatever with plaintiff’s assignor on defendant’s behalf. Lyman’s assumption of authority did not operate to conclude defendant. The alleged contract upon which plaintiff sought to recover was, therefore, not shown ever to have had legal existence, and a judgment for defendant was the inevitable issue of the trial.

A further question which arises to refute plaintiff’s alleged right to recover in' this action is whether, observing the rule delegatus non potest delegare, Adams, whose duty it was, as defendant’s agent, to" employ artists and others whose services were required in defendant’s business, could effectually delegate the-authority to do so to Lyman, the performance of such duty manifestly requiring the exercise of judgment and discretion. Broadway & Seventh Ave. R. R. Co. v. Metzger, 39 St. Rep., 846 ; Carroll v. Tucker, 2 Misc., 397, 399 ; 50 St. Rep., 611. However, it is unnecessary to discuss the question, since, as already stated, the judgment appealed from is unassailable upon the facts.

Judgment affirmed, with costs. »

Giegerich, J., concurs.


author: Bischoff, J. Giegerich, J.

text:
    Samuel Rubenstein, Resp’t, v. Abraham Kahn, App’lt.

      (New York Common Pleas, General Term,

      Filed November 6, 1893.)

    1. Excise—Transfer of license.
    The holder oí a license for the sale of beer, wine and spirituous liquors-may transfer the same to another subject to the approval of the board of excise.
    2. Same—Agreement to fat for waiver of rights under unapproved transfer.
    Plaintiff, who held a transfer of a license which had not been approved, was induced to waive his rights thereunder and consent to a transfer to-defendant, by defendant’s promise to pay him a specified sum. The-transfer to defendant was subsequently made and approved. Held, that plaintiff was entitled to recover the sum named.
    Appeal from a judgment for plaintiff recovered,in the district court in the city of New York for the fifth judicial district.
    Action to recover the sum agreed to be paid upon the sale and transfer of an' excise license with the approval of the board of excise.

      Philip Gratz, Jr., for resp’t; J. C. J. Langbein, for app’lt.
   Bischoff, J.

While as a general rule a license issued by state or municipal authority for the sale of beer, wines and spirituous liquors involves, the granting of a mere personal privilege depending upon the licensee’s possession of the prescribed qualifications, and so is incapable of assignment and of barter and sale, Am. & Eng. Ency. of Law, vol. 13, p. 514; Myer on Vested Rights, § 1356 ; Metropolitan Board of Excise v. Barrie, 34 N. Y., 657, the existing excise laws of this state distinctly grant and recognize the licensee’s right to sell and transfer his license to another subject to the approval of the board of excise. Laws 1892, ch. 401, § 26, as amended by Laws 1893, ch. 480.

In substance plaintiff testified that defendant had promised to pay him $175 for the transfer to defendant, with the approval of the board of excise, of a liquor license issued to one Joseph Hudes for the premises 21 Suffolk street in the city of New York, in which license plaintiff at the time claimed to have a qualified ownership by transfer from Hudes, which last mentioned transfer had not yet been approved as above stated to be requisite. It is unchallenged, in fact conceded, that the transfer to defendant was subsequently effected and approved by the board of excise. It also appears in evidence that plaintiff was induced by defendant’s promise to waive his own rights in the matter and to consent to the transfer to defendant. We can conceive of no valid ground therefore for holding that plaintiff was not entitled to recover for defendant’s refusal to pay the sum agreed.

It was wholly immaterial that Hudes may have included his license among the goods and chattels mortgaged by him to the Budweiser Brewing Company and others while defendant accepted a transfer of the license and received it unimpaired by Hudes’ attempted incumbrance. Nor do we discover anything so inherently improbable in plaintiff’s assertions at the trial that we would feel justified to reverse a judgment in his favor as against the weight of the evidence only because in some particulars he was contradicted by several witnesses for the defense, each of whom was either directly or indirectly interested in the event of the action in defendant’s favor.

The judgment is affirmed, with costs.

Giegerich, J.

The agreement between the parties, which was the result of a compromise between them upon their conflicting claims, is contained in the following paper writing, signed by the defendant and by him delivered to the plaintiff, viz:

“ I hereby agree, after the license in the name of Joseph Hudes is transferred to my name by the board of excise on the store 21 Suffolk street, to notify the paying teller of the Union Square Bank to pay one hundred and seventy-five dollars ($175) to S. Rubenstein.
“(Sg.)
A. Kahn.”

A licensee may transfer his license by permission of the board of excise. Laws of 1892, chap. 401, § 26, as amended by Laws of 1893, chap. 480, § 7. The transfer of the license being conceded by the defendant, the plaintiff is entitled under the terms of the agreement to the sum agreed to be paid upon such, transfer.

There being no error of law apparent upon the record, and it appearing therefrom that no injustice has been done to the defendant, I concur in the conclusion arrived at by Judge Bischoff, that the judgment should be affirmed, with costs.


author: Pryor, J.

text:
    The Mechanics & Traders’ Bank, Resp’t, v. Frederic Livingston et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Bills and notes—Accommodation paper.
    Transferee of negotiable note taken before maturity as. collateral security for a precedent debt is a holder for value; and he may enforce it against an accommodation maker, if there be no diversion or other fraud in its acquisition.
    2. Same.
    Notice that the note was accommodation paper, without more, will not affect the holder’s right of recovery.
    8. Same—Burden of proof.
    By production of the note plaintiff makes a prima facie case; and it then devolves on defendant to defeat the apparent right.
    4. Same—Collateral security.
    Collateral security for one debt may not be applied to another, nor be retained after the specific debt is discharged.
    5. Same.
    But collateral security for a general account may be applied to any debt of the account.
    6. Evidence.
    To be admissible as of right, evidence must appear competent when offered; and while in the exercise of discretion the court may receive it provisionally, a refusal so to do is not reversible error.
    Appeal from judgment of the general term of the city court, affirming judgment on verdict.
    The opinion states the case.

      George F. Martens, for app’lt; Charles Strauss, for resp’t.

       Affirming 53 St. Rep., 693.

   Pryor, J.

To an action on a negotiable note the defense is that it was made for the accommodation of the payees, that it was transferred to the plaintiff as collateral security for a previous loan, and that the loan has been repaid-

That the loan has been repaid is not controverted; and if the fact be that the pledge of the note was as security only for the specific loan, then beyond question the defendants were entitled to the verdict, upon the settled principles that a security for one debt cannot be applied to another, Duncan v. Brennan, 83 N. Y. 487; C. N. Bank v. Bell, 125 id., 38, 42; 34 St. Rep., 481; Wyckoff v. Anthony, 9 Daly, 417, and that when the debt is discharged the pledgee’s interest in the security is extinguished. Cass v. Higenbotam, 100 N. Y., 248; Farwell v. Bank, 90 id., 483.

But, the terms of the agreement under which the collateral is received may authorize it to be held for the satisfaction of all debts against the pledgor, and if so, it may be applied to the payment of any debt. Moors v. Washburn, 147 Mass., 344; Eichelberger v. Murdock, 10 Md., 373 ; 69 Am. Dec., 140.

This was the contention of the plaintiff ; namely, that the’ note was delivered by the payees as security “for their account in general,” and that upon that account they are still indebted to the plaintiff in the sum of $6,000.

The issue thus raised was strenuously contested; might well have been determined either way upon the evidence ; and was submitted to the jury on a charge to which neither party took exception. A tribunal for the decision of questions of law only, we have no jurisdiction to disturb the verdict, unless, as appellants allege, error appears in the rulings on evidence.

Assuming the note to be accommodation paper, the defendants contended on the trial that it was incumbent upon plaintiff to show itself a holder for value, and for value independent of an existing indebtedness; and the court, with extreme indulgence to the appellants, so instructed the jury.

The proof exacted of the plaintiff was more than the law required.

Upon production of the note plaintiff presented a prima facie case; and it devolved on defendants to impugn the apparent right of recovery. Bank v. Wood, 19 N. Y. Suppl., 81; 46 St. Rep., 649 ; Bank v. Haulenbeek, 1 Suppl., 629; 16 St. Rep., 786 ; Bank v. Crow, 60 N. Y., 85. Conceding the note taken as security for a precedent debt, with notice of its accommodation character, still as it was received before maturity and no diversion or other fraud was pleaded or proved, plaintiff’s right of recovery was indefeasible. Schepp v. Carpenter, 51 N. Y., 602; Grocer’s Bank v. Penfield, 69 id., 502; Freund v. Bank, 76 id., 352, 358; Continental Bank v. Townsend, 87 id., 8; Harger v. Worrall, 69 id., 370; Linderman v. Farquharson, 101 id., 434, 438 ; Bank v. Vanderhost, 32 a negotiable instrument for the benefit of a friend, must abide the consequences; and has no more right to complain if his friend accommodates himself by pledging it for an old debt than if he had used it in any other way.” Black, Ch. J., in Lord v. Ocean Bank, 20 Pa. St., 384; 59 Am. Dec., 728. When a man gives his accommodation paper without restriction in its use, authority is imparted to apply it to any purpose; and since he who takes it as collateral security for a precedent debt holds it for value, mere knowledge of the accommodation cannot impair his right to enforce it. Benjamin v. Rogers, 126 N. Y., 60, 68; 36 St. Rep., 393.

It follows, therefore, that the court rightly rejected proof that the note was accommodation paper, and that it was transferred to plaintiff for a precedent debt only; because the facts, if shown, would not have defeated the recovery,

The court excluded evidence of which the competency was not then apparent, but which the appellant promised to “ connect.” The rule is familiar that to be admissible evidence must be competent when offered, unless in its discretion the court receive it provisionally. A refusal to exercise the discretion is not the subject of review.

Ho error of prejudice to appellants is disclosed in the record.

Judgment affirmed, with costs.

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


text:
    Sara Riordan, Resp’t, v. The First Presbyterian Church of Tremont, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Promise—Action upon.
    A promise by one person for the benefit of another will sustain an action by that other; and this although the debt which the one promised to pay be not then in existence, and although at the time of the promise the beneficiary be not identified, and although the person claiming the benefit of the promise did not know of it when his claim against the promisee accrued.
    2. Same.
    The rule is applicable as well to a specialty as to a simple contract.
    3. Same.
    Origin in this state of the doctrine of Lawrence y. Fbx.

    Appeal from judgment of the general term of the city court affirming judgment on verdict
    For services rendered to Ann Wilson in her illness the plaintiff sues upon the subjoined covenant in an agreement between said Wilson and defendant, of which the consideration expressed is the conveyance by Wilson to defendant of a parcel of land in the city of New York. “ Fourth. The said, The First Presbyterian churcn of Tremont, New York city, will pay and discharge any and all charges and expenses for medical attendance and advice, or other necessary attendance in case of illness, and the funeral charges and expenses of the said Ann Wilson, which shall include the purchase of 'a grave in Woodlawn cemetery, and the erection of a monumental headstone.”
    “The Session of the said church shall have the full and entire charge of the said funeral.

      Ernest Hall, for app’lt; Edgar J. Nathan, for resp’t.

       Affirming 52 St. Rep., 524.

   Pryor, J.

For a valid consideration, the defendant covenanted-with Ann Wilson to “pay and discharge any and all charges and expenses for necessary attendance in case of illness.” Upon allegation and proof of necessary service rendered to Ann Wilson in her illness, the plaintiff has recovered a judgment against the defendant; and the question is, whether the defendant’s covenant, with Ann Wilson so enured to the benefit of the plaintiff as to support an action by her against the defendant.

Lawrence v. Fox, 20 N. Y., 268, decided in 1859, is commonly cited to the proposition that a promise by one for the benefit of another will sustain an action by that other; but, so long before as 1806 the point was expressly ruled in Schermerhorn v. Vanderheyden, 1 Johns., 139, was reaffirmed in Barker v. Bucklin, 2 Denio, 45; and was recognized and approved by repeated adjudications. D. & H. Canal Co. v. Westchester Bank, 4 Denio, 97; Hale v. Boardman, 27 Barb., 85; Judson v. Gray, 17 How., 296; Therasson v. McSpedon, 2 Hilt., 3. Since Lawrence v. Fox, the principle has been applied by the courts of New York in a ■multitude of cases; and it must now be regarded as fundamental in the jurisprudence of the state. Barlow v. Myers, 64 N. Y., 41, 44. Indeed it is the prevalent law of the Union. Hendrick v. Lindsay, 93 U. S., 143, 149, and cases collected in note to Schermerhorn v. Vanderheyden, 3 Am. Dec., 305, 306. Whatever of technical doubt'or difficulty may have hindered its acceptance by the courts, has been dissipated by the provision of the Codes authorizing an action by the real party in interest Pomeroy’s Rem., § 139.

The fact that the promise is evidenced by a specialty instead of a simple contract is ineffectual to render it unavailable to one not a party or privy. Coster v. Mayor, 43 N. Y., 399.

Accepting the rule, then, as inveterate and unimpeachable, the point for adjudication is whether the case be within its operation.

We are not unmindful of the admonition by the court of appeals against any extension of the principle beyond the scope of its legitimate application. Wheat v. Rice, 97 N. Y., 302; Lorillard v. Clyde, 122 id., 498; 34 St. Rep., 224; Durnherr v. Rau, 135 N. Y., 219; 48 St. Rep., 394. " But it is clear to demonstration that the conditions essential to the operation of the rule as prescribed in Lawrence v. Fox are present in the case at bar, namely, a liability of Ann Wilson to the plaintiff, and a promise by the defendant, on a sufficient consideration, to discharge that liability.

True, in Lawrence v. Fox the debt of the third person to the plaintiff which the defendant promised that person to pay to the plaintiff was then in existence and ascertained, whereas here the claim of Sara Riordan against Ann Wilson accrued after defendant’s promise. But that this diversity is ineffectual to avoid the application of the rule is settled by the court of appeals. Coster v. Mayor, 43 N. Y., 399, 411; Little v. Banks, 85 N. Y., 258.

True also, that in Lawrence v. Fox the beneficiary of defendant’s promise was identified and named; whereas here, when the defendant engaged to pay for attendance upon Ann Wilson, the defendant was not apprised that Sara Riordan would render that service. But this circumstance too, is immaterial. Cases supra; Arnold v. Nichols, 64 N. Y., 117; Melvain v. Tomes, 14 Hun, 31; Kingsbury v. Earle, 27 id., 141; Spingarn v. Rosenfeld, 54 St. Rep., 128, 129.

True, again, that when plaintiff rendered the services to Ann Wilson she was not aware of defendant’s promise to pay for them; but “such promise is to be deemed made to a third party, if adopted by him, though he was not cognizant of it when made.’’ 1 Parsons on Contr., 468, and citations passim.

Still, to maintain this action on defendant’s promise to 'Ann Wilson, it is indispensable that the promise appear to be made for the plaintiff’s benefit. Garnsey v. Rogers, 47 N. Y., 233, 240; Beveridge v. R. R. Co., 112 N. Y., 2 ; 20 St. Rep., 962. That such is its intent is apparent upon its terms. In full the engagement is, to “ pay and discharge any and all charges and expenses for medical attendance and advice, or other necessary attendance in case of illness, and the funeral charges and expenses of the said Ann Wilson, which shall include the purchase of a grave in Woodlawn Cemetery and the erection of a monumental headstone.” The provision for funeral expenses and monument demonstrates that the stipulated payments were not to be made to Ann Wilson; and so the inevitable inference is that the defendant en-, gaged to pay the person rendering the services for which the defendant assumed the responsibility. The circumstances of the case confirm the conclusion. The consideration of the defendant’s promise was the transfer of all Ann Wilson’s property, “ of all the assets to which creditors had the right to look for payment of their claims,'and hence the promise of the defendant to pay such claims must be deemed to have been made for their benefit.” Arnold v. Nichols, 64 N. Y., 117, 119. In fact the defendant did pay the physicians for their attendance on Ann Wilson and the undertaker for the expenses of her funeral, did discharge to her creditors all the claims for which defendant assumed liability, except the demand of plaintiff; and that demand the defendant’s treasurer attempted to compromise. Indeed the evidence authorizes the inference that the defendant recognized its liability to plaintiff upon its promise to Ann Wilson, but denied that the plaintiff had rendered the stipulated service.

That plaintiff rendered the service, necessary attendance in illness, is abundantly apparent in the evidence. The defendant insists that Ann Wilson was affected only by the infirmities of old age ; but the infirmities incident to her period of life, eighty-seven to ninety-one years, and with which in fact she was afflicted to the extremity of utter prostration and helpless debility, constitute illness in any and every sense of the term. They were infirmities of which she died.

Again, defendant objects that the plaintiff is allowed compensation for the attendance of members of her family upon Ann Wilson. If such were the fact the judgment would not be invalidated ; for services to Ann Wilson on behalf of the plaintiff by members of her family for which they made no charge, in legal effect were services by the plaintiff, and for them she was entitled to remuneration. But the learned trial judge explicitly admonished the jury to exclude them from consideration; and we are to intend that the instructions of the court were not disregarded.

The exception to evidence upon which appellant relies is, that the plaintiff was permitted to testify to personal communications and transactions with Ann Wilson. The Code, § 829, precludes testimony by a party to transactions or communications with a deceased person, against a person deriving his title or interest from, through or under such deceased person. It is obvious, at once, that in this action the defendant does not sustain the rela-i tion to Ann Wilson which the Code prescribes as indispensable to the rejection of plaintiff’s testimony. Indeed, with characteristic candor, the learned counsel for the appellant concedes that the case is not within the letter of the statute, but contends that it is within its spirit. This is not enough. To make the evidence incompetent, it must appear to be within the terms of the prohibítion. Lobdell v. Lobdell, 36 N. Y., 327, 334; Severn v. Nat. St. Bank of Troy, 18 Hun, 228.

We have accorded all possible consideration to the elaborate argument of counsel for the appellant, and our conviction still is that the judgment is correct.

Judgment affirmed, with costs.

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


text:
    Richard Deeves, Resp’t, v. The Metropolitan Realty Co. of the City of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1 Reference—Compulsory.
    What a “long account” within § 1013 of the Code authorizing a compulsory reference.
    3. Mechanic’s lien—Counterclaim—Jury trial.
    In an action to enforce a mechanic’s lien, it is imperative on the court to grant an application, seasonably made, for trial by jury of questions of fact arising on a counterclaim for damages.
    Appeal from orders at special term.
    Action to foreclose a mechanic’s lien. The opinion states the case.

      Charles J. Hardy, for app’lt; David Thornton, for resp’t.
   Pryor, J.

The appeal is from two orders; one granting a motion for a reference to hear and determine, and the other denying a motion to settle issues for trial by jury.

In Cassidy v. McFarland, 34 N. E. Rep., 893, 895; 54 St. Rep., 605, the court of appeals say, that “ the examination of a long account imports an actual contest as to the correctness of different charges, or at least of several of them, a prolonged examination of witnesses upon the issue, conflicting proof, and a judicial inquiry and determination as to each one of numerous litigated items.” Upon this definition of the term “long account” in § 1013 of the Code, we cannot doubt the power of the court to order a compulsory reference in the case before us. The first count in the complaint is to recover §184,985, for work and materials, involving necessarily innumerable items; the answer puts in issue the performance of the work and the furnishing of the materials ; and thus the pleadings subject these innumerable items to prolonged litigation and judicial inquiry and determination.

The second cause of action is for extra work and materials; and the statement of claim exhibits- twenty-five distinct charges, several of which are again divisible into different items.

That within the letter and the policy of the statute the causes of action are referable by the court, is a proposition too plain to require argument in its support.

In the answer the defendant counterclaims and asks an affirmative judgment, first, for $30,000, because of plaintiff’s failure to complete the work within the stipulated period; second, for $5,900, as liquidated'damages under the contract; and third, for $2,110.20 on account of deficiency in the agreed work and materials. To the counterclaims a reply is interposed.

By § 974 of the Code, “ where the defendant interposes a -counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action slated in the counterclaim and demanding the same judgment." Section 970 prescribes that, “ where a party is entitled by the constitution or by express'provision of law to a trial by jury of one or more issues of fact in an action not specified in § 968,he may apply upon notice to the court for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application the -court must cause the issues, to the trial of which by a jury the party is entitled, to be distinctly and plainly stated."

We are of the opinion that the defendant’s contention is valid. -Collating §§ 970 and 974 of the Code, the inference is irresistible that the court had not discretion to deny a trial by jury of the issues on defendant’s counterclaims.

The complaint not demanding judgment for a sum of money -only, the action is not within § 968. Schillinger v. Arnott, 14 N. Y. Supp., 327; Kenney v. Apgar, 93 N. Y., 539. The counterclaims asserting a common law claim for damages present issues for trial by jury. By § 974 the issues on the counterclaims are to be tried as if they arose in an action by the defendant against the plaintiff; that, is by jury. Where is the escape from the conclusion that § 970 applies? That provision in peremptory terms requires the court to grant the order solicited by the defendant.

Cases under § 971 are distinguishable by the Code as in their nature they are distinguishable from cases under § 970. Issues under the latter provision are of right triable by jury, and the law says they must be so tried. Questions arising in cases under the former are purely equitable issues, not of right triable by jury, but which, as the statute provides, the court may in its discretion” direct to be so tried. Colman v. Dixon, 50 N. Y., 572 ; Knickerbocker, etc., Co. v. Nelson, 8 Hun, 21. In the present case the right of recovery exhibited by the counterclaims constituted a cause of action at law for damages from breach of contract; and by the joint effect of §§ 974 and 970 of the Code are, .as matter of strict right, triable by jury.

The issues arising upon the defenses to the complaint were referable; and the order so adjudging is correct. The issues raised by the reply to the counterclaims are of right triable by jury ; and the order adjudging the contrary is erroneous.

The embarrassment and expense entailed by this double and different trial of issues in the same action are obvious ; but they present an argument to the legislature, not to the court.

Order of reference affirmed ; order denying issues for a jury reversed. No costs to either party.

Daly, Oh. J., and Bischoff, J., concur.


text:
    Michael Quinn, App’lt, v. John Fish, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.).

    1. Master and servant—Liability of master for injury to servant FROM DEFECTIVE APPLIANCES.
    To fix a master with responsibility for injury to his servant from a defective implement, proof is indispensable that he had notice of the defect or might have known it by the exercise of reasonable care.
    ■2. Same—Negligence of fellow servant.
    Defendant provided a safe ladder for the use of his servants, but by insecure fastening in its place it fell and injured plaintiff. Held,, that the insecure fastening was the negligence of a fellow-servant, and that defendant is not liable for the injury.
    Appeal from, judgment on dismissal of the complaint.
    Action by servant for injury from defective appliance. The ■case appears in the opinion.

      Ira Warren, for app’lt; John E. Brodsky, for resp’t.
   Pryor, J.

In an action by a servant against a master for an injury in the course of the employment, the principle of liability is the personal fault of the master. Cahill v. Hilton, 106 N. Y., 512; 11 St. Rep., 26. The master is not an insurer of the sufficiency and safety of the implements and facilities furnished for the work, but is responsible only for negligence, i. e., omission of reasonable care in securing such sufficiency and safety. Painton v. R. R. Co., 83 N. Y., 7. When injury occurs to an employe from a defect in the appliances of the work, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Devlin v. Smith, 89 N. Y., 470. Neglect of the exercise of such care must be shown by direct evidence, or by proof of facts from which the inference of negligence can be legitimately drawn by the jury.

The mere fact that an accident occurred which caused the injury is not generally of itself sufficient to authorize an inference of negligence. Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957. A scintilla of evidence is insufficient proof of negligence, but the evidence must be such as reasonably to satisfy the mind of the "jury. Dwight v. Ins. Co., 103 N. Y., 341, 359; 3 St. Rep., 115.

While in the service of the defendant the plaintiff sustained an injury from a defect in a ladder provided for his use; in a suit for damages his complaint was dismissed, and we are to determine whether his evidence was adequate to the support of the action.

It is not pretended that the defendant had notice of the defect; but the contention is that by reasonable care he might have known it.

The defect was not in the ladder itself, but in its insecure fastening ; so that under plaintiff’s weight it slipped out of place and gave way.

Plaintiff insists, and on the motion to dismiss he is entitled to the concession, that the ladder with which he fell was the ladder which ten minutes before the architect, not the defendant’s agent, discovered to be in a dangerous condition. The existence for .this brief period of an infirmity artificially caused by insufficient fastening is the only evidence adduced that reasonable care would have disclosed the defect to the defendant. Surely such care did not require of him to be constantly observant of the ladder, and an intermission of vigilance for ten-minutes cannot be imputed to him as actionable negligence. True, the architect apprised defendant of the condition of the ladder; but only as the plaintiff was falling—“flying through the air.”

We discover in the evidence no proof of defendant’s negligence.

Fot less conclusively, the cause of plaintiff’s injury was the negligence of a fellow servant.

In itself, we repeat, the ladder was sufficient for its purpose,, and its insecure fastening was the defect that caused the plaintiff’s injury. But to adjust the ladder in place for use was a. detail in the execution of their work which it was the duty of plaintiff and his co-servants to perform. Cregan v. Marston, 126 N. Y., 568, 572; 38 St. Rep., 428; Arnold v. The President, etc., 125 N. .Y, 15, 18; 34 St. Rep., 372; Geoghegan v. Atlas S. S. Co., 51 id., 868, 872 (where cases collected).

The result is that in dismissing the complaint the learned trial judge committed no error.

Judgment affirmed, with costs.

Balt, Ch. J., and Bischoff, J., concur.


text:
    Caleb T. Ames et al., App’lts, v. John McNally, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Brokers—Commissions.
    In an action for broker’s commission on sale of real property, it appeared that plaintiffs found a purchaser, who hesitated, however, to accept the price named; that plaintiffs brought the defendant and the purchaser together, and they concluded a sale for virtually the sum offered through the plaintiffs; that the defendant claimed to have withdrawn the property and discharged the plaintiffs, but whether he did so. and whether, if he did, it was in good faith or to defraud plaintiffs of their commission, was doubtful on the evidence. Held, that the case should have been submitted to the jury.
    Appeal from j udgment on dismissal of complaint.
    Action for broker’s commission on sale of realty. The opinion states the case.

      Daniel Daly, for app’lts ; Stephen Philbin, for resp’t.
   Pryor, J.

At the close of the plaintiffs’ case the complaint was dismissed ; and the question is, had a prima facie right to recover been shown ?

The fact is conceded that the plaintiffs themselves did not negotiate the sale; but they contend that, nevertheless, they were the procuring cause of its consummation. How so?. True, they introduced the purchaser; but he hesitated to buy for the price named by the owner. Then the owner and purchaser themselves entered into negotiation, and concluded it upon virtually the terms offered through the plaintiffs.

On this state of fact the plaintiffs might well claim their commission, upon the ground that, after all, the sale was the fruit of their efforts. Lloyd v. Matthews, 51 N. Y., 124; Sussdorff v. Schmidt, 55 id., 319.

But, after plaintiffs’ ineffectual endeavor to get an offer at defendant’s price, he informed them that “ he did not know as he cared to sell the property,” that “ the old woman didn’t want to sell it." Thereupon, the plaintiffs saw the purchaser, and “ told him the result of that.” From the plaintiffs the purchaser “ understood that the owner had withdrawn the property, or words to that effect; ” then the purchaser renewed the negotiation on his own account; and within three days, with hardly an appreciable effort, concluded it for a price less than the offer through the plaintiffs by just one half the broker’s fee.

Doubtless had the property been withdrawn from the market, and the plaintiffs’ retainer canceled, the subsequent sale would not have enured to his advantage and entitled him to his commission. But did the defendant withdraw the property and discharge the plaintiff ? The language is equivocal. It was not an explicit refusal to sell and revocation of plaintiffs’ employment. In our judgment it was for the jury, in the light of the surrounding circumstances, to say what the defendant meant by his uncertain remark. Dexter v. Ivins, 133 N. Y., 551, 555; 44 St Rep., 244. It hardly consists with justice by an ambiguity to deprive one of the well earned reward of his services.

Then, too, it is a question whether the authority of the plaintiffs was terminated “fairly and in good faith,” Sibbald v. The Iron, etc., Co., 83 N. Y., 378, 383; “in good faith and without any intent to defraud plaintiffs;” Satterthwaite v. Vreeland, 3 Hun, 152 ; for, upon the facts the jury might well have found that the pretended withdrawal of the property, and the subsequent sale to the very purchaser produced by plaintiffs and on substantially the terms proposed through them, were nothing more than an expedient for cheating them of their commission. Hendricks v. Daniels, 46 St. Rep., 384. The issue quo animo is always for the jury.

We are entirely satisfied that the interests of justice require the submission of the case to a jury.

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

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


author: Earl, J.

text:
    The People, Resp’ts, v. Robert H. Moses, App’lt.

      (Court of Appeals,

      Filed November 28, 1893.)

    Sunday—Fishing—Penal Code, § 365.
    Fishing on Sunday is absolutely prohibited by § 365 of the Penal Code, everywhere and under all circumstances. The law is violated even though the fishing is done on private property and in such a manner as not to disturb the peace or interrupt the repose or religious liberty of the community.
    (Finch, Peckham and Cray, JJ., dissent.)

      Appeal from judgment of the supreme court, general term, second department, affirming judgment of the Orange county court of sessions affirming conviction of defendant of a misdemeanor in fishing on Sunday.

      Matthew Daly, for app’lt; M. H. Hirschberg, for resp’ts.

      Affirming 47 St. Rep., 181.

   Earl, J.

The defendant was convicted in a court held by a justice of the peace in the county of Orange, of the crime of Sabbath breaking. The conviction was affirmed upon appeal to the court of general sessions of that county, and upon appeal to the general term of the supreme court. He has now appealed to this court, claiming upon the undisputed facts that he was not guilty •of the crime charged.

The act claimed to be a violation of the Sunday laws was fishing from a boat upon Clark’s pond, in the county of Orange, on -Sunday. The pond is a body of water about a mile in length, •and over half a mile wide. It does not distinctly appear in the •evidence whether the pond is public or private property, but it may be assumed here, as it was in the court below, that it belonged to a club of which the defendant was a member. The pond is not a secluded body of water, as there are public highways and occupied residences in its vicinity, and the act of the defendant was committed within the observation of a number of people. He claims that he was not guilty of the offense charged because the pond was private property, and his acts were not, therefore, public, and did not constitute “ serious interruption of the repose and religious liberty of the community."

The Christian Sabbath is one of the civil institutions of the state, and that the legislature for the purpose of promoting the moral and physical well-being, of the people, and the peace, quiet and good order of society, has authority to regulate its observance, and prevent its desecration by any appropriate legislation is unquestioned. Lindenmuller v. People, 33 Barb., 548; Neuendorff v. Duryea, 69 N. Y., 557.

We have, therefore, only to construe the statutes and ascertain whether they prohibit the act complained of. Section 259 of the Penal Code provides that “ the first day of the week, being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community.” It is not the meaning of this section that every act which is claimed to be a violation thereof must, in fact, be a serious interruption of the repose and religious liberty of the community; but the legislature in subsequent sections specified certain acts which are declared to be serious interruptions of the repose and religious liberty of the community, acts necessarily described in general and comprehensive terms, which the law makers believed had a general tendency to interfere with Sunday as a day of rest and religious worship. Section 263 prohibits all labor on Sunday, excepting works of necessity or charity, and it matters not whether the prohibited^ labor be public or private; wherever it is performed it is prohibited. • In section 265 particular acts are specified which are prohibited, as follows: “ All shooting, hunting, fishing, playing, horse racing, gaming or other public sport, exercises or shows upon the first day of the week, and all noise disturbing the peace of the day, are prohibited.” In §§ 266, 267 and 268 other acts are specially prohibited. It is thus seen that among the acts specially prohibited on Sunday is fishing. That is absolutely prohibited on Sunday everywhere and under all circumstances. It may be done in a community where it does not offend the sensibilities of anyone; it may be done in such a manner as not to disturb the peace or interrupt the repose or religious liberty of the community, and yet the law is violated. It is quite unreasonable to suppose that the legislature meant that whenever any of these acts are charged as a violation of the law an issue can be framed and .tried as to their public, offensive or disturbing character. The legislature has settled that matter by prohibiting them absolutely.

In reaching this conclusion we are not embarrassed by the decision in the case of People v. Dennin, 35 Hun, 327, because we do not think that case was correctly decided. There, the defendant and two other persons played ball on Sunday, in private grounds, with the consent of the owner thereof, creating no disturbance and making no noise, and it was there held that to constitute a violation of § 265 of the Penal Code the playing prohibited must seriously interrupt the repose of the community on Sunday. That playing ball by several persons in a place open to the view of the people who may be in the vicinity, or who may pass by, is condemned by the principles which lie at the bottom of the Sunday laws, and is an act of playing within the meaning of the statute, cannot be doubted.

We think the judgment should be affirmed.

All concur, except Finch, Peckham and G-ray,'JJ., dissenting.


author: Gray, J.

text:
    The Village of Stamford, App’lt, v. John H. Fisher, Resp't.

      (Court of Appeals,

      Filed November 28, 1893.)

    Villages—Hawkers and peddlers.
    One who goes from his place of business once a month to a village in another county and solicits orders for goods at various houses therein, at the same time filling orders previously given, is not engaged in hawking or peddling in the streets within the meaning of chap. 465, Laws 1883, au. thorizing village trustees to regulate hawking and peddling in the streets.
    Appeal from judgment of the supreme court, general term’ fourth department, affirming judgment of the Delaware county court reversing judgment of justice’s court in favor of plaintiff.
    This action was brought in a justice’s court to recover from the defendant a penalty for his violation of the terms of a resolution passed by the village trustees; which prohibted all persons from hawking or peddling in the public streets without a license. Upon appeal from the judgment recovered by the village, the county court ordered a reversal and its decision has been affirmed by the general term of the fourth department.

      The plaintiff, thereupon, obtained leave to appeal to this court, on the ground that a question of law was involved which ought to be reviewed here.
    The facts, so far as material, are stated in the opinion.

      F. R. Gilbert, for app’lt; George A. Fisher, for resp’t

      Affirming 43 St. Rep., 864.

   Gray, J.

The question, which we are asked to review and upon which the learned justices at the general term below have differed in opinion, is whether the defendant came-under the provisions of chap. 465 of the Laws of 1883, and of the resolution passed, pursuant to the authority of that act, by the trustees of the village of Stamford. The statute provides as follows, viz.:

“ The trustees of any village in this state incor-porated under special act of the legislature, and who have not the powers hereinafter conferred, shall, from and after the passage of this act, have power and authority to restrain, regulate or prevent hawking and peddling in the str-eets, except the peddling and sale of meats, fish, fruits and fa2'm produce, to regulate, restrain or prohibit sales by auction and grant licenses to peddlers and auctioneers, and fix the amount to be paid therefor.”

The resolution which was passed read:

Resolved, That from and after the passage of this resolution all persons are prohibited from hawking or peddling in the public streets within the corporate limits of the village of Stamford, or selling at auction in the streets of said village of any goods, wares or merchandise of any kind or description, excepting meats, fish, fruits and farm products, until such person or persons shall have first obtained a license therefor, as provided in the next section.”

Subsequent portions of the resolution provided fora penalty to be imposed in case of a violation. For the plaintiff it was argued that the defendant was a peddler within the meaning of the statute, while for him it was insisted that such was not a proper description of his occupation ; that it was not one within the meaning of the statute, and that he was under no obligation to take out a license. The evidence established that the defendant had a residence or store at Oneonta, in the neighboring county of Otsego, and transacted a business with persons in the village of Stamfoi'd, Delaware county, in soliciting oi’ders and subsequently delivering, pursuant to such orde2-s, articles of groceries for family use. For this purpose he had a wagon with which, about once in each month, he made trips to Stamford, filling his p2’evious 02’ders and taking new ones at the various houses. The defendant was not shown to have sold, or to have offered for' sale, any goods upon the street, or otherwise to have transacted this business than as described. So that the decision of the question turns upon the point of whether that method of conducting a business distinguishes it from the peddler’s or hawker’s occupation. It seems to me clearly that such a distinction does exist; that it is a very substantial one, and that, therefore, neither statute nor resolution can be held to apply to the defendant’s case.

It is unnecessary to discuss the legislative power to enact the law in question. It is perfectly competent to empower municipal corporations to prescribe regulations for the orderly conduct of business within their limits and upon the public streets, and to provide that the itinerant peddler or hawker should contribute to the revenues of the municipality by the payment of a license fee, in the nature of a tax upon his business, in return for the privilege and protection accorded to him in so carrying on his trade. Incidentally there may exist the purpose, in authorizing such measures, to promote a just and equal protection of those traders who have a local habitation and their establishments in the village, and who bear their share of the municipal burdens. As the statute, however, is in restriction of the common law and a general right of persons to pursue a legitimate and innocent occupation and to deal rightfully and usefully with their property, it should receive a strict construction, and in every instance where one is sought to be charged with a penalty for a violation of the village ordinance his occupation must be shown to be clearly within those occupations which are aimed at. I would not hold that such a statute is not to receive an equitable as well as a strict construction, for it is in purpose beneficial to the community where it is to receive its operation.

But its operation should be confined to those cases where it is plainly discoverable that the mischief exists for which the law was intended to provide a remedy, and where the need is evidenced for the extension of the protection intended by the legislature. We come, therefore, to consider whether the pursuit of this defendant can fairly be deemed to be that of a peddler, as it was alleged in the complaint of the village. Our attention is called to the definitions given by lexicographers to the term “ peddler,” and they substantially agree that he is a peddler who travels about the country, carrying wares for sale in small quantities. The dominant idea involved in such an occupation seems to be that the individual carries his stock in trade, consisting in small wares, on foot or in a vehicle about the country, offering them for sale and then and there selling them.

The statute, in coupling the terms “hawking ” and “peddling,” itself suggests the idea that the features of itinerancy and a public offering of goods for sale are present in the occupations of the hawker and the peddler. Either one avails himself of the highway for the conduct of his trade in about the same manner.

In the case of the defendant, however, he resided in a different part of the state, and presumably contributed his share to the discharge of the public burden of taxation. He did not hawk or erv out his wares in the public streets, nor did he expose, offer or sell them thereon. He simply delivered at the houses of customers, from whom he had previously received orders, the articles ordered. The concept of such an occupation sharply distinguishes it from that of the itinerant street vendor of articles. The case of Rex v. McKnight, 10 Barn. & Cresw., 734, is in point. There the defendant was in the employ of a tea dealer, and was sent by his master about the neighboring county ofice a fortnight soliciting orders, and, on subsequent occasions, was sent to deliver small parcels of tea, in pursuance of these orders. This was held not to be an exposing for sale, or a carrying to sell, within the meaning of the hawkers and peddlers’ act, so as to subject the defendant to a penalty for trading without a license.

In the decision of that case it was considered as a material fact that the bargain for the goods and the delivery were on- different-occasions. Cases in the courts of other states, to which our attention has been called, serve to confirm the view taken here. Such are those of Commonwealth v. Ober, 12 Cush., 498; Commonwealth v. Eichenburg, 140 Penn. St., 160, and Ballou v. State, 87 Ala., 144.

In my opinion the case of the defendant was not shown to be: one within the meaning of the statute, and he could- not be subjected to the penalty provided for in the village ordinance.

The judgment below should be affirmed, with costs.

All concur, except Maynard, J., not sitting.