author: Bradley, J. Follett, Ch. J.

text:
    George W. Crouch et al, Resp’ts., v. Max L. Gutman, App’lt.

      (Court of Appeals,. Second Division,

      Filed May 31, 1892.)
    Contract—Substantial performance.
    Defendant contracted with one S. to build a brick block according to specifications for SI 6.500, payable in instalments of eighty per cent, of the value of the work as it progressed, and the balance on the satisfactory completion of the entire work, payable only on the architect’s certificate, which was made a condition precedent to the right of recovery under the contract. On the failure of S. to push the work, the defendant had the power after notice to finish the work, and deduct the expense from the contract price, and ten dollars a day were fixed on as damages for delay after the term expired. S. sub-let the carpenter work for $6,000 to W. & Son, by a like contract, and directed defendant to pay that amount to them when the work was satisfactorily performed. W. & Son gave plaintiffs an order on defendant for §1,650, which he accepted, “payable out of tire balance which may be due W. & Son when the building is completed to the extent of such unpaid balance, and no more, and on the architect’s certificate only.” W. & Son failing to complete the work, defendant gave notice to S., and employed P., a carpenter, to remedy defects in the work to the extent of $439, besides which there was defective work which it would cost over $217 to remedy. Meld, that this work having been done by the defendant in the exercise, by his election, of the right reserved in the contract to proceed with the work and charge it to the contractor, he could not effectually assert forfeiture in respect to the deficiency so supplied, but W. & Son were entitled to the work thus produced and chargeable to the defendant for the amount of the expense incurred by him in doing it.
    (Follett, Ch. J., Vann and Land on, JJ., dissent.)
    Appeal from j udgment entered on order of the general term of the supreme court in the fifth judicial department, affirming judgment entered upon report of referee.
    The action was brought to recover money alleged to be due from the defendant for work on his building performed by John Wadsworth & Son, and to which the plaintiff had by transfer become entitled.
    It appears that on September 28, 1886, the defendant entered into contract in writing with John E. Strauchen, whereby the latter agreed to furnish the materials for and erect, and by the 1st day of April, 1887, to finish a brick block and apartment house for the defendant in the city of Boches ter, in the manner and according to the specifications referred to, for the sum of $16,500, payable in instalments of eighty per cent, of the value of the work as it progressed, and the balance on the satisfactory completion of the entire work. “ Payments made only on the architect’s certificate and such certificate shall be a condition precedent to the right •of recovery under this agreement.” The defendant reserved the right to make at any time during the progress of the work “ any alterations, deviations, additions or omissions in the work or materials,” and it was provided that in such case the value should be ■added or deducted accordingly.
    And should the contractor at any time during the progress of the work refuse or neglect to supply sufficiency of materials or workmen, the defendant should have the power, after three days notice in writing to do so, to finish the work, and the expense thus incurred by him should be deducted from the amount of the contract price. It was also agreed that for each and every day’s delay in the performance of the agreement after the term there specified there should be allowed and paid by the contractor to the ■defendant ten dollars damages for such delay if it should arise from any act or default on the part of the former.
    Afterwards and by contract of the same date Strauchen sublet the carpentry w.orlc of the building to John Wadsworth & Son at the price of $6,000 with the knowledge and assent of the defendant. This contract was also in writing and contained the same provisions as did that first mentioned. And upon it Strauchen endorsed the following order : “ M. L. Gutman. Please pay to the order of John Wadsworth & Son the amount of the within contract, when the work is satisfactorily performed, in instalments and charge to the account of John E. Strauchen.”
    The original and sub-contractors proceeded with the work and the defendant from time to time made payments to the sub-contractors amounting in the aggregate to $3,869, and in addition he paid, August 25, 1887, on their order drawn upon him for $500 to O’Corr & Co., July 5, 1‘887, which he accepted payable out of the architect’s next estimate.
    The Wadsworths being indebted to the plaintiffs for lumber used in the building, on the 27th of June, 1887, gave to them an order of that date on the defendant, as follows : “ Max L. Gutman. Please pay G. W. & F. P. Crouch sixteen hundred and fifty dollars, and charge the same to our contract John Wadsworth & Son.” Which was presented to the defendant and accepted by him July 6, 1887, by endorsement thereon, as follows: “ This order is accepted payable out of the balance which may be due Messrs. Wadsworth & Son when the building is completed to the extent of such unpaid balance and no more, and on the architect’s-certificate only. Max L. Gutman.” This constitutes, with a formal assignment afterwards made by the Wadsworths to them, the alleged claim of the plaintiffs against the defendant.
    The Wadsworths continued their work on the building until about July 30, 1887, when they ceased work upon it. And that day the defendant gave to Strauchen notice in writing that unless-he supplied a sufficiency of workmen and material to proceed with the work in finishing the building in accordance with the contract within three days he would employ workmen and furnish material to complete it and charge the expense to his account. And after waiting that time the defendant employed one Pike, a carpenter, to remedy the defects in the work; and the value of the labor on the building performed by Pike including materials and of some painting done by another under Pike’s directions, amounted to-$439.29.
    On August 5, 1887, Strauchen gave the defendant notice to-make no further payments to the Wadsworths on account of the work. And on the 8th of that month Strauchen made a settlement by which there was deducted from the contract price-($16,500) the amount of the contract with the Wadsworths,. $6,000, and the payments which had been made to Strauchen during the progress of the work and the sum of $1,499.55 for stipulated damages, which included $1,300 for 130 days delay from April 1 to August 8, 1887, leaving as a balance $4,000, for which the defendant’s check was given to him in full of all demands except as to balance due on the carpenter work embraced in the Wadsworths’ contract. The referee having found that the contracts were substantially performed, presented the following-statement applicable to that of the sub-contractors:
    Gave them credit for contract price................. $6,000 00'
    And for extra work............................. 260 00-
    $6,260 0»
    And made the deductions for payments
    made Wadsworths.................. $3,869 00
    Payment of O’Corr order.............. 500 10
    For hardware furnished by defendant. .. 293 64
    For tiling furnished by him............ 148 50

      For iron pipe furnished by him $14 and register and transom guard omitted by
    the contractor $12 .................. 26 00
    For amt. of bills of Pike & Pierpont for the work, etc., done after the 3 days
    notice...................... 439 29
    For omissions in work by consent of defendant .....,.......... 145 00
    Cost of repairing defects in work....... 205 00
    5.626 43
    $633 57
    And he directed judgment against the° defendant for $633.57 with interest from October 1, 1887.
    Further facts, essential to the questions considered, appear in the opinion.

      S. D. Bentley, for app’lt; Charles M. Williams, for resp’ts.

       Affirming 32 St. Rep., 254.

   Bradley, J.

The acceptance of the order given by the Wadsworths to the plaintiffs upon the defendant was in terms conditional and payment made dependent upon completion of the building and on the architect’s certificate. And by the contract such certificate was made a condition precedent to the right to any payments upon the work. No such certificate was obtained by the Wadsworths or the plaintiffs in support of the demand for payment of the amount of the order or any portion of it, but upon application made to him November 29, 1887, by one of the plaintiffs for a final certificate on the work the architect put his refusal in writing of that date as follows:

“ Mr. F. P. Crouch : Replying to your request for final certificate on the Gutman contract. I regret that there are so many things which are imperfect that I am prevented from certifying to the satisfactory completion of the work under the contract

“James G. Cutler, Architect."

The parties to the contract by it made the architect’s certificate ■essential evidence of performance and of the right to payment founded upon it, and unless its production was in some manner waived or its necessity otherwise overcome or obviated, the failure to obtain it constituted a bar to recovery by the plaintiffs. Smith v. Brady, 17 N. Y., 173. In support of his conclusion the referee found that the contractor Strauchensubstantially performed the work on his part, and that on his adjustment with the defendant there was deducted $199.55 for defective mason work, and $1,300 for delay from April 1 to August 8, 1887, in completing the work. And that the Wadsworths substantially performed the agreement on their part, though in some particulars their work was not first class, but there was no willful or intentional departure on their part from the terms of the contract; and that such defects did not pervade the whole work, and were “ not so essential that the object which the parties intended to accomplish was not accomplished.” He also found that the architect refused to-give the plaintiffs a certificate for final estimate, and upon demand refused to give any certificate, and that his refusal to give any certificate was unjust and unreasonable. The latter may have been supported if the finding of substantial performance was warranted. Both propositions are challenged by the defendant’s exceptions. Since the rule of exact or literal performance has been relaxed and recovery may be founded upon substantial performance, that term in its practical application to building contracts has, perhaps necessarily, become somewhat indefinite otherwise than that the builder must have in good faith intended to comply with the contract, _and shall substantially have done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot without difficulty be accomplished by remedying them. Then slight defects caused by inadvertence or unintentional omissions are not necessarily in the way of recovery of the-contract price less the amount, by way of damages, requisite to indemnify the owner for the expense of conforming the work to-that for which he contracted. And whether having in view those-guiding considerations the contractor has proceeded in good faith, and the defects are slight in the sense applicable to them in their relation to the work as a whole, are usually questions of fact and upon their determination is dependent the disposition of that of substantial performance. Glacius v. Black, 50 N. Y., 145; Phillip v. Gallant, 62 id., 256; Woodward v. Fuller, 80 id., 312 Nolan v. Whitney, 88 id., 648.

In the present case the defective condition of- the carpenter-work from all causes as described by the findings of the referee were, that the walls of the building settled to some extent, thereby affecting the carpentry work; that the base boards in many cases-parted from the floor; that such shrinkage of the boards was without the fault of the Wadsworths or the material furnished, but. was due to the settling of .the walls and partially to the steam heat; that the materials furnished by them were according to the terms of the contract, except that of the shelving in closets and the maple flooring for the halls, part of which was second-class-material. These facts have some evidence for their support.

The referee further found upon the subject of defects in the carpenter work, that when the Wadsworths stopped work in the latter part of July, 1887, there were defects in their work in the-following respects: “In the bath rooms, in the hardwood floors, pieced casings on windows in rear of building, defective hand rail on front stairs, moulding in some portions of the building not properly smoothed before oiling, imperfect painting on the front-of the building.”

And further, that on the defendant’s three days notice provided by the contract, and given on July 30, 1887, to the contractor to-provide materials and workmen and complete the work, the defendant employed to remedy the defects one Pike, a carpenter, whose work upon the building was “ fixing the doors so they would latch, and windows so they would slide, fixing covers on wash trays, fixing back stairs, being defects principally due in part to poor workmanship, and in part to settling of the building. That the front of the building was repainted by men employed by Pike, the original job having been a poor one, showing spots, and in some cases, when Pike’s repairing made it necessary, additional coats of oil were put on the building in the interior.” And that the fair value of the labor and materials necessary to remedy and make good the defective and omitted work covered by the specifications performed by Pike and his painter was $439.29.

The referee then proceeded by his findings to state that the defective work covered by the specifications and not remedied by Pike consisted of “maple flooring in the halls, in which some cases second class material was used, and the floors themselves in some cases present an uneven surface caused by settling of the building. The window frames in rooms in the rear of the building were not set to correspond in height with the doors in said rear rooms, and the hand rail on front stairs was patched, and there was defective work in the bath rooms, window casings and closet shelves, but the said defects do not prevent the use of the building for the purposes intended.” And that the fair value of the labor and materials necessary to remedy such defective work not remedied by Pike and his painter, was $205. He also found that the Wadsworths failed to provide iron transom guards for rear doors and iron registers for front, for which deduction of $12 should be made. And he added that when Pike had completed his work before mentioned, and on or about September 21, 1887, the defendant took and has since remained in possession of the building, and has rented portions of it to tenants. Although there is a conflict in the evidence in respect to some of such findings, there is in the record some evidence tending to support all of them, and for the purposes of this review they must therefore be deemed conclusive of the facts so found by him.

While the condition of the carpenter work when the Wadsworths left it in July was such as to, indicate defects and omissions, the correction of which would cost $656.29, it may be observed that such defects upon such estimate of the cost to the amount of $439.29 were remedied through the action of the ■defendant, taken pursuant to his right reserved by the contract, to furnish materials and workmen to proceed with the work and charge the expense to the contractor, upon the failure of the latter to do it on three days notice to him to that effect. This work having been done by the defendant in the exercise, by his election, of such right, he cannot effectually assert forfeiture in respect to the deficiency so supplied, but the Wadsworths were entitled to the benefit of the work thus produced and were chargeable to the defendant for the amount of the expense incurred by him in doing it. Murphy v. Buchman, 66 N. Y., 297. When the application for the architect's certificate was made this work had been done and the defect in the work to that extent removed, and in other respects the work could then have been made to conform to the specifications by the appropriation to that purpose of the sum of $216.71. This was the situation when the architect was requested by the plaintiffs to make certificate for payment of final estimate. If -the work was then substantially performed as found by the referee, the conclusion was warranted that the refusal of the architect to give any certificate was unreasonable in the legal sense applicable to it for the purposés of relief. Nolan v. Whitney, 88 N. Y., 648.

The amount of damages for want of strict performance was not such as to necessarily defeat the claim of substantial performance. Phillip v. Gallant, 62 N. Y., 256. The cost of completion of work by remedying defects or -supplying omissions in it to meet the requirement of a contract may be so great as to preclude the conclusion of substantial performance.

In Flaherty v. Miner, 123 N. Y., 382; 33 St. Rep., 681, where the damages allowed were upwards of seventeen per cent of the contract price, the court suggested, without deciding, that if it had appeared “ without dispute that such a substantial portion of the-work remained undone and objection had been properly taken, it may well be that the plaintiff could not have recovered upon the theory of a substantial performance.” It is suggested that it was not within the province of the architect’s duty to make deductions for defective work or' to determine what less than exact or full completion of the work, according to the contract, was such substantial performance as to permit recovery. That may be true in such sense that the refusal of a certificate may on his part have-been without purpose to deny to the contractor that which he may have been entitled, and yet it may be determined on trial that the certificate was unreasonably withheld. The considerations of good faith on the part of the contractor bearing upon the question whether the defective work was willful or unintentional and inadvertent the architect may not be willing to determine. But if he gives a certificate founded upon final estimate that the work is substantially performed, the right to abate recovery for defects in the work is not necessarily defeated.

In Phillip v. Gallant, 62 N. Y., 257, where the contract price of the work was $865.11, a&d the damages allowed for defective work was $75, the question of substantial performance was held to be one of fact, and the amount of damages was not treated as-inconsistent with the conclusion to that effect. And see Van Clief v. Van Vechten, 42 St. Rep., 736.

The rule of substantial performance should riot be extended beyond the purpose in view when the relaxation of the strict performance was adopted, which was founded upon equitable considerations in furtherance of justice, and made applicable to cases of honest intention of contractors to fairly perform their contracts, and who shall in the main have done so, with only slight defects or omissions inadvertently and unintentionally caused and appearing in tlje work. The present is a case not free from difficulty in that respect. Nót less so in the extent of the deficiencies than in the character of some of them. The fact that the windows in the rear of the building were not in align with the doors and were differently cased were features not in accordance with the specifications, and would seem to have been apparent to observation reasonably diligent. Yet the Wadsworths testify to the effect that they supposed they had completed the carpentry work according to the contract. The inference was permitted, as the result showed, that they may have placed too much reliance upon the care and skill of their employes. And it does not appear that their attention was by the defendant or his architect called during the progress of the work to those defects in such windows and casings, although payments were from'time to time made upon the certificates of the latter to those contractors. The referee, however, was by stipulation of the parties given the opportunity, which he made available, of viewing the premises and making personal inspection of the work, and he may have acquired such aid in considering the evidence of the witnesses as might thus be afforded him. And it cannot now in view of the evidence and against his findings be held as matter of law that the defects or anjr of them were willfully caused or permitted by the contractors. Whatever view we may have taken of the weight of evidence on the questions o£ fact upon the subject, those findings in that respect approved by the court below must be deemed conclusive on this review. The time within which the contractor undertook to perform the work was an essential element in the contract, which provided for stipulated damages at the rate of ten dollars per day for the period of delay in that respect arising from his act or default, subject, however, to the right to such extension of time as might be rendered reasonable by strike of workmen to whose demands the contractor was not required to yield. In the settlement made by the defendant through his architect with the original contractor, damages at such rate were allowed to defendant for delay for the entire time from April 1, to August 8, 1887, when such settlement was made. And no claim of that character up to that time arises in this action. It seems that the carpenter work which the sub-contractors undertook to perform was not made the subject of that settlement, but was eliminated from it. And assuming that any delay in such work subsequent to that time and prior to the time the possession of the building was made available to the defendant was properly the subject of consideration in the present action, the question arises whether any and what amount of damages for that cause are chargeable by way of abatement of the alleged claim of the plaintiffs.

The work which the defendant, following the three days notice before mentioned, caused to be performed, was not completed until about the 21st of September, 1887, when he took possession of the building. Thus intervened a period of upwards of forty days after the time up to which the matter of delay had been adjusted with the original contractor. The referee has found that the sub-contractors were delayed in the work two or three weeks by a strike of workmen, four or five days waiting the decision of the defendant in respect to certain specified work, and that they were hindered and delayed by the plumbers at various times covering a period of thirty days. He also found that they performed some extra work amounting to $260, the time occupied in doing which does not appear. The plumbers did their work under a contract with defendant independent of his contract with Strauchen. In view of those facts taken as true, and which there is some evidence tending to prove, it would seem that delay in the carpenter work for a time at least equal to that from August 8th to September 21st did not “arise from any act or default on the part of the ” contractors; and the conclusion was permitted that the defendant in such settlement was allowed all he became •entitled to on account of the delay in the work. We have for the purposes of this question of delay treated the work before referred to, which the defendant caused to be done, the same as if the sub-contractors had performed it themselves and taken the same time that was occupied in its performance by the person employed by the defendant for that purpose.

There were some other matters made the subject of controversy, and to which the defendant’s exceptions call attention, but upon careful examination of the record it is found that none of the find-' ings or refusals to find of the referee are wholly unsupported by evidence. None of the exceptions seem to have been well taken.

The judgment should be affirmed.

Follett, Ch. J.

(dissenting)—The prevailing opinion goes further than any previous judgment has gone in the direction of holding that the question of “ substantial performance ” is always one of fact. Generally the question is one of fact, but so called performance may be so partial or defective that it is the-duty of •the court to decide, as a matter of law, that the contract has not been so far performed as to entitle the plaintiff to recover upon it. In my opinion, the defective performance found by the referee is sufficient to defeat a recovery on this contract, and besides, the undisputed evidence does not tend to support the finding or conclusion of substantial performance.

The tendency, called equitable, of courts to relieve persons from .the performance of engagements deliberately entered into, and in legal effect to make for litigants new contracts which they never entered into, and which it cannot be supposed they ever would have entered into, has been, and is being carried to a length which cannot be justified in reason. I think the judgment should be reversed and a new trial granted, with costs to abide the event

Judgment affirmed, with costs.

All concur, except Follett, Ch. J., Vann and Landon, JJ., ■dissenting.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Max L. Gutman, App’lt, v. Frank P. Crouch, Resp't.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Contract—Penalty fob delay.
    The owner of a building settled with the original contractor, deducting for defects 130 days delay and the amount of a sub-contract, and took an assignment of a bond given by the sub-contractor. The original and subcontract provided for performance of the work by the first of April, and ten dollars for each day’s delay thereafter if the same should arise from any act or default on tile part of the contractor. The referee found that-the contractor was delayed by reason of inability to obtain the iron work, and so delayed the sub-contractor, and that the owner was not entitled 10 recover on account of any delay prior to said settlement. Held, no error.

      2. Same.
    Subsequent to the settlement the sub-contractors ceased work, leaving some defects and omissions in the work, and plaintiff gave notice that in accordance with the contract he would complete the work, which he proceeded to do. The expense of tills work was allowed in abatement of an action against plaintiff by the contractor, and the re* ee in this action refused to find that they were chargeable with delay in e worir and with the consequences of it. Held, no error.
    (Follbtt, Ch. J., Vann and Landon, JJ., dissent.)
    Appeal from judgment entered on order of the general term of the supreme court, in the fifth judicial department, affirming judgment entered upon report of a referee dismissing complaint.

      S. D. Bentley, for app’lt; Charles M. Williams, for resp’t.

       Affirmmg 32 St, Rep., 264. See, en*¡, 470.

   Bradley, J.

The action was brought upon a bond made by the defendant to John R Strauchen of date of September 29, 1886, containing the condition that if John Wadsworth & Son should “ in all things hold to and strictly perform and keep all the conditions and obligations ” of an agreement of date September 28, 1886, made between them and Strauchen, the obligation should he void; otherwise to remain in force. By the agreement there referred to the Wadsworths undertook for the sum of $6,000 to perform the carpenter work of a brick building which Strauchen had agreed to erect for the plaintiff in the city of Rochester at the price of $16,500. These contracts are particularly mentioned, and mainly the facts involved in the controversies of this action appear in the opinion of the court in Crouch v. Gutman, ante 470, brought to recover a balance there alleged to be due for work done by the Wadsworths in performance of their contract, and founded upon a conditional acceptance by Gutman of an order drawn upon him, and payable to the Messrs. Crouch. Both cases were tried before the same referee. And ho having found that the Wadsworths substantially performed their contract, although there was some defects and omissions unintentionally and inadvertently caused, directed a recovery in favor of the plaintiffs in that action for a balance remaining after making certain deductions for materials and work supplied by Gutman, and for damages occasioned by such defects and omissions in the work.

The question remaining for consideration is whether or not there was breach of the condition of the bond, in that the Wadsworths were chargeable with damages for delay within the meaning of their contract in its performance. The contract between the plaintiff and Strauchen - provided for performance of the work by the 1st of April, 1887, and further that the latter should allow and pay to the plaintiff ten dollars damages for each day’s ■delay after that time, “ if the same should arise from any act or default on the part” of such contractor. And further that if there should occur a strike or other interference with labor, so that the contractor or his sub-contractors should not be able to continue and complete the work within that time without yielding to the demands of the strikers, the contract should be extended for such, additional time as might be reasonably required by them to complete the work.

The Wadsworth contract contained like provisions. The plaintiff’s right to recover was dependent upon the liability of the Wadsworths to Strauchen upon their contract with him. He completed the mason work, subject to some defects in it, about August 8, 1887, and then adjusted with the plaintiff, through his architect, his claim for that work, and in such settlement he allowed to the plaintiff a certain amount for damages for defective work, and for delay 130 days in the completion of the work, from April to August 8, 1887, the further sum of $1,300. This settlement had no relation to the carpentry embraced in the contract with the Wadsworths, nor were they or the defendant before or at the time it was made advised of the settlement. If, however, those subcontractors were chargeable with the delay, or any portion of it, for which Strauchen so allowed the plaintiff, the defendant was to that extent liable to him and became liable to the plaintiff as his assignee upon the bond. The referee having found that the Wadsworths substantially performed their contract, also found on the .subject of delay that Strauchen was delayed by reason of his inability to obtain the iron work of the building, by reason of which the carpenter work was also delayed; that the carpenter work depended upon the necessary preparatory work of the masons being done, and that delay on the part of the masons necessarily delayed the carpenters; and that it did not appear how much, if any, the Wadsworths delayed Strauchen in his work. After careful examination of the evidence we think this conclusion of the referee was permitted; and, therefore, upon his determination that the plaintiff was not entitled to recover on account of any delay on the part of the Wadsworths prior to such settlement there was no predicable error.

The further question has relation to delay, subsequent to that time, in the completion of the carpenter work. The Wadsworths ceased work upon the building about July 30, 1887. There were then some defects and omissions in the work. And on that day, pursuant to the right reserved to the plaintiff in the contract with .Strauchen, and by the latter for his protection in the sub-contract with the Wadsworths, the plaintiff gave written notice to his contractor that unless he within three dAys proceeded with the work of finishing the building in accordance with the contract, he, the plaintiff, would furnish material and workmen to do so, and charge the expense to his account, as so provided by the contract. The contractor did not comply with the notice, and the plaintiff caused work to be done in remedying defective conditions of the work until September 21,1887, when the plaintiff took possession of the building for the purposes of occupancy. The expense of this work, as iound by the referee, was allowed by him in abatement of the claim of the plaintiffs in the action of Crouch and another v. Gutman, before mentioned. Whether the Wadsworths were chargeable under the contract with any delay in the work after the 80th of July, 1887, is not the subject of any specific finding of the referee or of any specific request to find, although there were requests and refusals to find that they were chargeable with delay in the work and with the consequences of it. But upon the assumption that the Wadsworths were not chargeable with default in that respect prior to the time of the settlement of the plaintiff with Strauchen, the referee found a state of facts which may have relieved them from the charge and consequences ■of delay under the contract after that time. For more particular statement of such facts, and the view taken of them, reference may be had to opinion in Crouch v. Gutman. No other question not there considered seems to here require special attention in the present action. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Follett, Ch. J., Vann and Landon, JJ., dissenting.


author: Landor, J.

text:
    Theodore Westlake, Resp’t, v. Rosina Koch et al., App’lts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Deed—Reservation.
    In 1856 one Flagler conveyed to Weed, resppndent’s grantor, in order to enlarge the latter’s front yard and straighten the highway, a strip of land along and in front of his farm, 500 feet in length, 13 feet wide at the centre and running to nothing at the ends, the grantee to hold the same for the uses and purposes of a highway only, and the parties “reserving the same privileges as they now have on the highway,” as at that lime located. The land retained by Flagler was higher than the highway, and his grantee dug out the earth and built a retaining wall about three feet in height along the west line of the strip purchased, leaving the remainder in the highway. Respondent purchased the strip with the farm lying east of it and both parties repaired the wall when necessary until 1886, when appellants, who had built a house west of the wall and had used passage ways through it to the highway, took possession of the entire wall to the exclusion of plaintiff. The trial court in an action of ejectment gave judgment that defendants had a right to the use of the highway, but directed that plaintiff have possession of the strip including the wall, reserving to defendants three passage ways. Held, error.
    2. Same.
    The recital in the habendum clause that the strip was to be used for no other purpose than a highway, in connection with the reservation immediately following and the grantee’s alteration and the dedication of the strip, resulted in a change in the location of the highway by which the grantors reserved to themselves the same privileges on the altered highway as they had on the old highway, which had been unrestricted.
    S. Same—Private nuisance. ,
    The maintenance of the wall adversely to defendants’ rights and injurious to their lands would be a private nuisance.
    (Parker, J., dissents).

      Appeal from, a judgment of the general term, second department, affirming a judgment for plaintiff entered upon the decision of the court upon the trial at the Orange special term.

      A. H. Seeger, for app’lts; Darwin W. Esmond, for resp’t.

       Reversing 29 St. Rep., 283.

   Landor, J.

Ejectment for a strip of land forming part of the public highway. In 1856 Elagler owned a farm adjoining the West side of the public highway leading from Newburgh to Marlborough. Weed owned the farm directly opposite and adjoining the east side of the same highway. Each owned to the center of the highwajr. The general course of the highway was straight,, but there being a hill bn the west, or Flagler’s side, the highway curved around the base of the hill and thus deviated from a straight line. Weed lived on the east, and desiring to enlarge his-front yard and straighten and improve the highway, purchased the strip of Flagler sufficient to enable him- to do so. The deed from Flagler to Weed conveyed the strip in question to Weed and all Flagler’s right, title and interest in the highway. Thehabendum clause in the deed recited that the grantee was to bold the granted strip “ for the uses and purposes of a public road or highway and for no other use or purpose whatever,” and then this reservation followed : “ the said parties of the first part reserving the same privileges on said public road or highway as they now have on the highway as at present located in front of the lands owned by said party of the first part.”

Upon receiving the conveyance Weed straightened the highway, enlarged his Own door yard by moving his front fence westerly, graded down the hill upon the westerly side of the highway and built a retaining wall upwards of 400 feet long, and about three feet high, against or very near to Flagler’s higher land and within the strip conveyed by the deed. Since 1856 the strip, has been used as a highway and Weed and his grantee, the respondent, have, as occasion required, repaired the wall. By subsequent conveyances the plaintiff acquired Weed’s title, and the defendants Flagler’s. In 1879, the defendants built a house upon their premises upon the west of the highway and wall, and opened and have since used a passage way from the highway to their house and also opened and used another like passage way at another point through the wall, and before the commencement of this action took possession of the entire wall to the exclusion, of the plaintiff and the denial of his right to maintain it.

The trial court found that the premises described in the complaint were dedicated and accepted as a highway and have formed part of it for over twenty years; that the defendants are abutting owners on said highway and have the right to the free and uninterrupted use of it as such. Judgment, however, was directed for the plaintiff for the possession of the strip in question including the wall, reserving to the defendants three specified passage ■ways of thirteen feet in width through the same, and • enjoining them from interfering with the wall.

I think the judgment should be reversed. The recital in the habendum clause that the strip was conveyed for no other purpose than a highway may not of itself restrict the full title granted, but this recital in connection with the reservation immediately following, and the grantee’s subsequent alteration of the highway and dedication of the strip to the public as a highway, show what was meant by the reservation. “ A reservation is never of any part of the estate itself but of something .issuing out of it, as for instance, rent, or some right to be exercised in relation to the estate." Craig v. Wells, 11 N. Y., 321.

The reservation in this deed aptly and explicitly expressed the. privileges reserved. There was intended to result from this grant, and did result from it, a change in the location of the highway, and the grantors reserved to themselves and for the benefit of their land the same privileges on the altered highway as they then had on the old highway. Their privileges were then unrestricted by any dominant right of the owner of the land on the opposite •side of the highway, and they remain equally unrestricted now. But this judgment if sustained restricts their privileges of ingress and egress to the three places of thirteen feet width each in a frontage .of over 400 feet, and denies them any other rights with respect to the highway except such as they may enjoy subject to the perpetual barricade of this wall. Before the highway was altered and the wall built no such restrictions existed. The maintenance of the wall adversely to defendants' rights and injurious to their lands obviously would be a private nuisance. Driggs v. Phillips, 103 N. Y., 77; 3 St. Rep., 65; Swords v. Edgar, 59 N. Y., 34.

To enable the plaintiff to maintain ejectment for any part of the highway to which he has the title subject to the public easement, the defendants must, have taken exclusive possession of it or imposed upon it some burden inconsistent with the public easement. Reformed, Church v. Schoolcraft, 65 N. Y., 150; Wager v. Troy Union R. R. Co., 25 id., 526. As between the parties the defendants have not taken possession of any part of the highway. The highway, as plaintiff and his grantor established it, is bounded •on the west by this wall, and the plaintiff cannot assert, to the prejudice of the defendants' reserved privileges, that the wall is not the boundary between defendants' land and the highway. Plaintiff’s claim that because the wall stands upon the edge of the granted strip it is therefore wholly his cannot be allowed in the sense that he may maintain it there adversely to the defendants.

If the plaintiff chose to remove the wall and grade the highway up to the exact boundary line a different question would be presented. But the judgment awards him the land upon which the wall stands and restrains the defendants from interfering with the wall, thus nullifying the reservation in the defendants’ favor and thus imposing a burden upon the land, which, under the terms of the grant, they have the right to remove or to lessen by any reasonably practicable means.

As they have done no more than was consistent with the enjoyment of their privileges, their possession of the wall was not wrongful

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

All concur, except Parker, J., dissenting, and Brown, J., hot sitting.


author: Hardin, P. J.

text:
    J. Henry Hallock, Resp’t, v. Etta D. Bacon et al., Executrices,. App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Husband and wife—Husband’s liability for wife’s medical attendance.
    Presumptively and primarily the husband is liable to furnish medical attendance for his wife, and in the absence of any special agreement on. the part of the wife to pay, the husband is liable.
    2. Reference—When findings will not be disturbed.
    Where the findings of a referee are fairly sustained by the evidence the court will not interfere.
    3. Decedents’ estates—Costs.
    When a disputed claim against an- estate is referred, the referee has no power to allow costs against an executor or administrator to be levied on-his property or that of the deceased; such costs can only be allowed by the court, on motion, after trial.
    Appeal from a judgment, entered in Onondaga" county, in favor • of the plaintiff, upon the report of a referee; also, from an order of the special term confirming the report of the referee, and denying a motion made by the defendant on a case and exceptions for a new trial, upon a claim presented against the estate of Emma B. Sharer, rejected by the executors. A reference was had under the statute, with the sanction of the surrogate, and a trial took place before the referee, who found as a conclusion of law: “ The plaintiff, J. Henry Halloek, is entitled to recover against Etta D. Bacon and Alice A. Salisbury, as executrices of the last will and testament of Emma B. Sharer, deceased, the sum of one hundred and fourteen dollars, with interest thereon from August 1, 1890, and the said interest amounts to six dollars and fifty cents, making in all $120.50, with costs.” The referee directed judgment accordingly by a report dated August 19, 1891. On the 14th of September, the attorney for the plaintiff stipulated to take judgment for the sum of $114, remitting $6.50, the interest allowed by the referee. Judgment was entered on the 14th of September, 1891, for $114 damages only, “ with $145.50 costs.”

      H. M Miller, for app’lts; J. William Wilson, for resp’t.
   Hardin, P. J.

Plaintiff’s claim is for medical services and attendance upon the deceased from the 23d of March, 1890, to the-23d of July, 1890, at which time she died, having been afflicted with a cancer of the uterus, requiring exceptional services on the part of the plaintiff. The referee found that the plaintiff visited the patient “ in performance of his professional duties, every other day, commencing March 24, until July 23, being sixty visits; and in addition to these regular calls he visited her on other occasions, being sent for specially, in the meantime making in all seventy-two visits. The value of the services so rendered by the-plaintiff is one hundred and fifty dollars; ” there is a balance unpaid of $114.

The deceased was a married woman at the time the services were performed, living with her husband at Syracuse, where she had lived several years before, and when she died she left her surviving her husband and two minor children; and she left a last will and testament which were admitted to probate, and the appellants were appointed executrices. It appears that her husband was a laboring man earning in the neighborhood of fifty or sixty dollars per moifth, having little or no means or pecuniary responsibility. Presumptively and primarily the husband is liable to furnish medical attendance for his wife, and “in the absence of any special agreement on the part of the wife to pay, the husband is liable.” Estate of Mrs. Shipman, 22 Abb. N. C., 291. The referee found: “During her sickness, and on or about March 23,1890, the said Emma B. Sharer personally employed the said J. Henry Hallock to attend her as her physician.” Whether such employment was made by the deceased was a question of fact to be determined by the referee. Cutter v. Morris, 26 St. Rep., 508. Having looked into the evidence given on the hearing before the referee, we are of the opinion that the evidence sustains the finding, and that his conclusion upon the evidence is in accordance with the weight of the testimony, and that we ought not to interfere with the finding. Roosa v. Smith, 17 Hun, 138; Crim v. Starkweather, 36 St. Rep., 314 ; Ellison v. Sessions, 44 id., 644.

(2) We have looked at the numerous exceptions taken during the progress of the trial and also to the exceptions taken to the findings of fact and of law, and to the refusals to find, and we are of the opinion that they present no prejudicial error; we therefore sustain the referee’s report upon the merits, and the judgment for $114 should remain. The action of the referee as to costs was unauthorized. In Bailey v. Bergen, decided by this court in 1875, and reported 5 Hun, 555, upon an opinion prepared by Merwin, J., it was held: A referee has no power to allow costs against an executor or administrator, to be. levied on his property or on that of the deceased. Such costs can only be allowed by the court, on motion after trial.” 2 R. S., 90, § 41; Howe v. Lloyd, 2 Lansing, 335; S. C., 9 Abb., N. S., 257.

judgment modified by striking therefrom the costs other than the disbursements, and as so modified affirmed, with costs of the appeal to the respondent.

Martin and Merwin, JJ., concur.


text:
    J. Henry Hallock, Resp’t, v. Etta D. Bacon et al., Executrices, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Costs—Reference of disputed claim against estate.
    Where a claim against an estate is rejected and referred, such reference is a special proceeding, and upon confirmation of the referee’s report in favor of the claimant, the latter is entitled, as a matter of right, to recover the referee’s fees and disbursements, but not taxable costs as in an action.

      Plaintiff presented a claim against the estate of Emma B- Sharer, deceased, which was rejected and referred to a referee, who tried and decided upon the claim pursuant to §§ 36 and 37 of the Revised Statutes. 3 R. S., 2300, 7th ed. The referee reported $114 damages in favor of the plaintiff. A motion was thereafter made on the report for an order confirming said report and for judgment thereon, which motion was granted; and the motion made by the executors for an order setting aside said report was denied. No cc rtificate of the referee or affidavit was filed “ showing that the aforesaid claim was unreasonably resisted or neglected," and no such certificate or affidavit was produced before the clerk on the retaxation of costs. The plaintiff presented a bill of costs with notice of retaxation, and upon the day fixed for the retaxation the defendants appeared and objected to all costs except the referee’s fees and disbursements, and stated “ that this was a special proceeding and the only costs which the clerk was authorized to tax were the necessary disbursements.” The clerk overruled the objections and retaxed the costs, allowing to the plaintiff, besides the referee’s fees and disbursements, the following items, viz: “ Before notice of trial, $15; after notice and before trial, $15; trial fee, $30; trial occupying more than two days, $10.” Thereupon the defendants made a motion “that an order be granted setting aside and vacating the taxation and relaxation of costs herein made by the Onondaga county clerk * * * and for a new taxation." The motion was heard October 17, 1891, and denied. Defendants appeal from the order.

      IT. B. Miller, for app’lts; J. William Wilson, for resp't.
   Hardin, P. J.

References had pursuant to §§ 36 and 37 of the Revised Statutes, 3 R. S., 2300, are special proceedings.

In Coe v. Coe, 37 Barb., 235, in speaking of a similar case, Allen, J., said: “It is a statutory proceeding, and the only authority for a judgment is the report of the referee, which is subject to examination by the court.”

In Young v. Cuddy, 23 Hun, 249, Gilbert, J., said: “ References of undisputed claims against executors, pursuant to 2 R. S., 88, 89, §§36 and 37, are‘special proceedings.’ Code Civ. Pro., §§ 3333 and 3334. The provisions of the Revised Statutes regulating such proceedings have not been repealed by the Code of Civil Procedure;” and in Roe v. Boyle, 81 N. Y., 305, it was said: “And this has been • generally, if not uniformly, regarded osa special proceeding by judges who have had occasion to consider the point.” (Citing cases.)

In Mowry v. Peet, 88 N. Y., 456, it was said: “ In trying and adjudicating upon these matters, which are within the scope of the reference, the statute, 2 R. S., 88, § 36, confers upon the referee and the court the same powers as if the reference had been made in an action. But the proceeding is not an action.”

In Paddock v. Kirkham, 102 N. Y, 599; 2 St. Rep., 555, Roe v. Boyle and Mowry v. Peet were referred to approvingly.

In Eldred v. Eames, 48 Hun, 256; 17 St. Rep., 911, decided by this court in 1888, it was said: “ Where a reference is had under the statute, the claim and stipulation stand in the place and stead of and for the pleadings. Such a reference is a special proceeding. Bucklin v. Chapin, 1 Lans., 450; Hatch v. Stewart, 42 Hun, 164; 5 St. Rep., 180.” Although that case was reversed by the court of appeals, 115 N. Y., 401; 26 St. Rep., 277, it was upon another.point, to wit: “the referee has no power of amendment and may not vary the matter referred.”

Since the adoption of the Code of Civil Procedure several cases have arisen which recognize the right of the plaintiff to recover referee’s fees and disbursements as a matter of course.

In Krill v. Brownell, 40 Hun, 72, decided March, 1886, fifth department, Smith, P. J., states the legislation upon the subject quite satisfactorily, and the court in that case reaches the conclusion that the prevailing party “is entitled to recover the fees of referees and witnesses, and his other necessary disbursements, as a matter of right.” His opinion was referred to in Larkins v. Maxon, 103 N. Y., 681; 3 St. Rep., 642, as well as other cases to the same effect, and the court said : “We think these last cited cases established the true construction of the subdivision referred to, and that it was intended and did preserve the right to disbursements given by the former Code upon the reference of a claim against a decedent.”

In June, 1886, the general term, fifth department, decided Denise v. Denise, 41 Hun, 9; 2 St. Rep., 175, and ordered judgment for the plaintiff “to recover referee’s fees and disbursements.”

The court of appeals affirmed the order, 110 N. Y., 562; 18 St. Rep., 873, and near the close of the opinion it was observed: “ The present case is that of a special proceeding under the statute, where the determination of a matter was referred by the consent of both, parties and is not controlled by § 1836.”

In October, 1886, the fifth department decided Hatch v. Stewart, 42 Hun, 164; 5 St. Rep., 180, which was a case where a reference had been made under tile statute and the report had been confirmed, and the court observes that “the recovery of disbursements, as directed by the judgment, must stand. The plaintiff was entitled to them as matter of right, because the provisions of § 317 of the old Code to that effect were not repealed by Laws of 1877, chap. 417. And although the entire provisions of the old Code-are embraced in the repealing clause of Laws of 1880, chap. 245, § 1, subd. 4 and § 2, the then existing right of the prevailing party to recover the fees of referees and witnesses, and other necessary disbursements in a proceeding of this character, is preserved by § 3, subd. 8 of the same act.” Hall v. Edmunds, 67 How., 202; Sutton v. Newton, 2 How., N. S., 56; S. C., 15 Abb. N. C., 452; 7 Civ. Pro. 334; Overheiser v. Morehouse, 2 How., N. S., 257; S. C., 16 Abb. N. C., 208; 8 Civ. Pro., 11.

In the case in hand no affidavits or certificates of the referee were used at the special term to obtain an adjudication allowing the plaintiff costs against the executors. Bumsey’s Pr., 484.

In Pursell v. Fry, 19 Hun, 599, it was held that without such proof an allowance was improper, and that case is an authority supporting the plaintiff’s claim for referee’s fees and disbursements, and is an authority adverse to the other costs mentioned in his hill. The case was decided in this department in 1880.

In June, 1883, this department in deciding Fredenburg v. Biddlecome, 17 W. Dig., 25, which was a case where a reference had been had under the statute, held, “ On the reference of a disputed claim the executors are not chargeable with costs in the absence of proof that they unreasonably resisted or neglected the claim. ”

In the course of the opinion delivered by Hardin, J., it was said “ that § 3240 of the Code is not applicable, as the costs are specially regulated by the statute.” However, it is now insisted, in behalf of the respondent, that by § 3240 of the Code of Civil PToccdure the court may allow “ further costs at the rates allowed for similar services in an action.”

In Hopkins v. Lott, 111 N. Y., 577; 20 St. Rep., 130, a case was before the court where a reference had been had under the statute and a recovery of damages in the sum of six cents, and the defendant sought to charge the plaintiff with costs, and in the course of the opinion delivered in that case, Andrews, J., says: “ The plaintiff was properly denied costs because the payment of the claim was not unreasonably resisted, and it was referred by the agreement of both parties under the statute. The plaintiff’s cause of action was maintained by the judgment entered on the report of the referee, but his damages for the eviction as determined were nominal merely and judgment was awarded in his favor for six cents only; but the right of the defendant to costs does not follow because they were not awarded to the plaintiff under the special provisions of §§ 1835 and 1836, * * * nor was the allowance of costs to the defendant discretionary under § 3240 of the Code. The costs arc regulated by the Revised Statutes and the Code as in actions against executors and administrators.”

In Hendricks v. Isaacs, 52 Hun, 100; 22 St. Rep., 563, it seems to have been held that “All that the court can in the first instance adjudge by way of costs is the payment of the referee’s fees and other disbursements necessarily incurred,” in case of a reference under the statute.

In Blankman v. McQueen, 58 Hun, 172; 33 St. Rep., 807, it was held that the proceedings in the case of a disputed claim against an estate are controlled by the Revised Statutes as regards the allowance of costs, and not by the Code of Civil Procedure, and that the costs are represented by the disbursements, and do not include allowance provided in the fee bill in actions. The opinion delivered in that case refers to Hauxhurst v. Ritch, 119 N. Y., 621; 28 St. Rep., 675. The court struck out the “ allowance of costs as taxable under the Code.”

,In the opinion of the learned judge, delivered at special term, he says: “ The court has power to award costs to the successful party under § 3240 of the Code, and that the costs so awarded are those given in an action for similar services.” That section provided that “ costs in a special proceeding instituted in a court of record * * * where the costs thereof are not specially regulated in this act may be awarded to any party in the discretion of the court, at the rates allowed for similar services in an action brought in the same court. * The section is found in chap. 21, title 1; in the same title is found § 3250 of the Code of Civil Procedure, which provides as follows: “ This title does not affect any provision contained. elsewhere in this act, or in any other statute remaining unrepealed after this chapter takes effect, whereby the award of costs is specially regulated in a particular case otherwise than as prescribed in this title.” We are of the opinion that § 3240 is not applicable to the case in hand.

We think Hauxkurst v. Ritch, 119 N. Y. 621; 28 St. Rep., 675, does not support the contention of the respondent. At the close of the opinion in that case it was said “ no other objection is argued except to the allowance of costs, which were in the discretion of the court, and not subject to our review.” Denise v. Denise, 110 N. Y. 568; 18 St. Rep., 873. By a reference to Denise v. Denise, 110 N. Y., we find it said at page 569, “The present case is that of a special proceeding under the statute where the determination of the matter was referred by the consent of both parties, and is not controlled by § 1836.” And the conclusion reached was that the judgment appealed from should be affirmed with costs. The judgment thus affirmed is indicated in 41 Hun, at page 13 ; 2 St. Rep., 178, where it is said, “Motion to confirm referee’s report and for judgment granted; the plaintiff to recover referee's fees and disbursements, together with the costs of this appeal to be paid out of the estate.” It must be assumed, therefore, that the expressions found in Hauxhurst v. Bitch, supra, sustain the right to recover the referee’s fees and disbursements only in the proceeding before the referee, and the costs of the appeal.

The following conclusions are reached:

(1) The reference had in this case was a special proceeding.

(2) The plaintiff was entitled to recover the referee’s fees and disbursements.

(3) The plaintiff was not entitled to recover the taxable costs as in an action, to wit: Before notice of trial $15; after notice and before trial $15; trial fee $30; trial occupying more than two days $10.

(4) The order appealed from should be reversed, with $10 costs and disbursements.

(5) The judgment should be modified by striking therefrom all costs entered therein exclusive of the referee’s fees and disbursements.

Order reversed, with $10 costs and disbursements.

Judgment modified as stated in the opinion.

Order to be settled before Hardin, P. J.

Martin and Merwin, JJ, concur.


author: Hardiu, P. J.

text:
    William Austin, Resp’t, v. James M. Rappelye, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Appeal—Findings on conflicting evidence.
    Where there is a conflict in the evidence, the findings of fact of the special term will not he disturbed on appeal.

      2. Set off.
    In an action to restrain further proceedings to foreclose a mortgage, ifc appeared that plaintiff rented his house to B. and that she became indebted and remained indebted for the rent to plaintiff in a sum. sufficient to discharge the balance remaining due upon the,mortgage; at the time the rent accrued, as well as the interest on the mortgage, the mortgage was held for the benefit of B. Held, that the set off of the claim for rent, against the amount due on the mortgage should be allowed.
    3. Evidence—Conclusions of witness.
    It is not competent to allow a witness to state his conclusions from facts and conversations to which he has testified.
    Appeal from a judgment entered in Tompkins county upon the decision made at special term restraining further proceedings to foreclose a mortgage by advertisement, and requiring the defendant to execute at the request of the plaintiff, and at his expense, a satisfaction piece of said mortgage.

      M N. Tompkins, for app’lt; William Austin, for resp’t
   Hardiu, P. J.

Findings of fact were made by the court to the effect that plaintiff rented his house to Mrs. Blauvelt and that she became indebted and remained indebted for the rent to plaintiff in a sum sufficient to discharge the balance remaining due upon the bond and mortgage given by plaintiff.

The court also found the burden of proof was on the plaintiff to establish that the house in question was rented to Mrs. Blauvelt and that she is indebted to plaintiff.

There was a conflict in the evidence, and the court saw and heard the conflicting witnesses and presumably followed the witnesses whose testimony seemed to be most satisfactory. The findings of fact should not be disturbed. Day v. Town of New Lots, 107 N. Y., 148; 11 St. Rep., 361; Valk v. McKeige, 43 id., 26. Roosa v. Smith, 17 Hun, 138, is in point. Boardman, J., says in that case: “ But we think it very clear that a general term cannot, in a doubtful case upon conflicting evidence, like the one under review, assume the place of the referee and determine from mere reading of the evidence who has told the truth or is best entitled to credit.’'

(2) It was in effect found that Mrs. Blauvelt was entitled to the interest which had accrued upon the mortgage given by plaintiff, inasmuch as the mortgage was held for her benefit when her indebtedness for rent accrued to the plaintiff. It appears the interest accrued, as well as the rent, before the assignment of the bond and mortgage to the defendant. It seems equitable that the off-set should be sanctioned. Richards v. La Toureite, 119 N. Y., 54; 28 St. Rep., 609; Code Civ. Pro., § 502.

Mi's. Blauvelt is “ the person beneficially interested ” in the recovery of the interest which accrued upon the mortgage held ■ against the plaintiff. Armstrong v. McKelvey, 104 N. Y., 180; 5 St. Rep., 611.

(3) It was not error to sustain the objection to the question put to Mr. Blauvelt He was allowed to state the facts and' the conversation had with plaintiff, and it was not competent for him. to state his conclusion therefrom.

The judgment should be affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Lucius Gleason, Resp’t, v. Fannie M. Hamilton, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Foreclosure—Alteration op term op mortgage without mortgagee’s consent.
    The alteration of the terms of a mortgage under which plaintiff claims, made by defendant or some third party, without the plaintiff’s consent, and while the mortgage is not in the plaintiff’s hands, has no effect, and the mortgage will remain as it originally stood, provided the nature and extent of the alteration can be clearly ascertained.
    Action to foreclose a mortgage bearing date January 13,1885, on property on James street, Syracuse, described in the complaint,' executed by the defendant; acknowledged before John 0. Keeft'e, notary public, whose certificate of acknowledgment bears date 13th of January, 1885. The mortgage was recorded March 23, 1885. The consideration named in the mortgage was $30,000. The condition in the mortgage as recorded was as follows: “ This grant is intended as the security for the payment of any and all notes made by the El Oro Mining Company and endorsed by William T. Hamilton and William dST. Thompson, and now held and owned by the party of the second part; and of any and all renewals of said notes ; and also to secure said second party from all loss by reason of his liability as endorser upon any and all notes made by said El Oro Mining Company, and endorsed by said Hamilton and Thompson, and any and all renewals thereof ; also any and all other notes or drafts made or endorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as endorser.” Defendant in her answer alleges “ that said plaintiff altered or caused to be altered said mortgage in a material part after her signature was affixed thereto and he had obtained possession thereof, by inserting at the end of the condition thereof the following words: ‘Also any and all other notes or drafts made or endorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as endorser.’ That said alteration was not brought to her knowledge in any manner after the same was made, nor did she ratify the same or acknowledge such mortgage after such alteration; and said plaintiff now claims a benefit and an advantage over defendant under and by virtue of such alteration. That such alteration was made for the purpose of obtaining a benefit for the plaintiff and was fraudulent as to this defendant; aqd said mortgage, if any such exists, thereby rendered void and of no effect.” Other defenses are stated in the answer; among others, that the mortgage “ was so executed and delivered wholly without any consideration therefor.” On the 7th of September, 1889, at a special term, an order was made settling issues and directing a trial thereof at the circuit court. The questions and the verdict of the jury thereon, were as follows:

      “First. Did the defendant execute and deliver to the plaintiff the mortgage referred to in the complaint ? A. Yes.
    “ ¿second. Was any consideration paid or did any pass to the defendant, or any other person, for the execution and delivery by her of the mortgage mentioned in the complaint? A. Yes.
    “ Third. After the execution and delivery of the mortgage re- , ferred to in the complaint, was said mortgage changed by writing therein in the condition thereof, the following clause: ‘Also any and all other notes or drafts made or endorsed by said Hamilton, now or hereafter owned by said second party, or on which be may be liable as endorser?' A. Yes.-
    “ Fourth. Was said clause written in said mortgage without the knowledge or consent of the said defendant Fannie M. Hamilton ? A. No.
    “ Fifth. Did the said defendant, Fannie M. Hamilton, after the following clause was written in said mortgage : ‘Also any and all other notes or drafts made or endorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as endorser ’ assent to the same or consent that the same should f01 m a part of said mortgage ? A. Yes.”
    A motion for a new trial “ upon the minutes of the court to set aside the verdict of the jury, rendered upon the first, second, fourth and fifth of said issues, and each of them, and that a new trial be granted as to said last mentioned issues and each of them, upon the grounds ” specified, was made at the circuit and denied. Subsequent to such order denying a motion for a new trial “ the issues joined in this action were brought to trial at a special term of this court, and the following proceedings were thereupon had: The stenographer’s minutes of the evidence and proceedings before the jury upon the trial of the issues in this action before them, and the exhibits therein referred to, and the verdict of the jury upon said issues, were introduced in evidence ; said evidence was received subject to the exceptions and objections in said minutes, the same rulings being deemed made and exceptions taken at special term as at the circuit. No further proof was offered by either party, and the foregoing case contains all the evidence given and proceedings had at the circuit and special term upon the trial of this case.”
    The special term found the execution of the mortgage and the consideration therefor, and the extent of the indebtedness mentioned in the complaint, and the existence of the several notes and drafts mentioned therein, and further as follows: “10. That outlie 13th of January, 1885, for a valuable consideration ahd for the purpose of securing the payment of the said several notes and drafts, the defendant, Fannie M. Hamilton, executed, duly acknowledged and delivered to the plaintiff a mortgage, whereby she granted, bargained and sold to the said plaintiff the following described premises with the appurtenances thereto. (Here follows description.) 11. Tha* by the terms of said mortgage it was provided that it was intended as a security for the payment of any and all notes made by the El Oro Mining Company and endorsed by William T. Hamilton and William N. Thompson, and held and owned by the plaintiff herein, and of any and all renewals of said notes, and also to secure him from all loss by reason of his liability as endorser upon any and all notes made by the said El Oro Mining Company and endorsed by said Hamilton and Thompson, and any and all renewals thereof; also any and all oilier notes or drafts made or endorsed by said Hamilton which were owned at the time of the execution of said mortgage, or which thereafter should be owned, by the plaintiff, on which he might be liable as endorser; that the said mortgage contains a further condition that in case default should be made in the payment of the moneys thereby intended to be secured or in the payment of the interest thereof,” and that a foreclosure and sale should take place. It was also found that none of the notes or drafts had been paid, and that the defendant had failed to comply with the conditions of the mortgage by omitting to pay any of said notes, and “there is now due and justly owing to the plaintiff upon the said notes, draft and mortgage the sum of $128,624.43 of- principal, and $48,081.66 interest.”
    The court also found: “After the execution and delivery of said mortgage hereinbefore described, the same was changed by inserting in the condition thereof the following clause, to wit:
    1 Also any and all other notes or drafts made or endorsed by said Hamilton, now or hereafter owned by said party, or on which he may be liable as endorser,’ and that said clause was written in .said mortgage with the knowledge and consent of the defendant, Fannie M. Hamilton, and alter the same was written therein she assented to the same, and consented that it should form a part of said mortgage. 16. Said clause was inserted in said mortgage without the knowledge, request or procurement of the plaintiff after said mortgage had been executed and delivered; he did not learn of its insertion until after the commencement of this action.”
    The court found as conclusions of law:
    “ First. That the mortgage executed by the defendant to the plaintiff was not invalidated by the insertion of the clause in question after the first execution of said mortgage by the defendant.
    “ Second. That said mortgage was executed and delivered by the defendant to the plaintiff for a valuable consideration, and became in the plaintiff’s hands a valid security for the payment of the several notes and draft set forth in the complaint.”
    Special findings were made at the request of the defendant as follows: “ That when said mortgage was returned executed by the defendant to said Doheny it did not contain the following clause in the condition thereof : ‘ Also any and all notes or drafts made or endorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as endorser.’ ” Also found: “That said alteration was a material one.” Several other requests to find were made which were refused by the court. Exceptions were taken to the findings and to the refusals to find.
    Hovember 11. 1890, judgment of foreclosure was allowed and entered. Defendant appeals from the order denying the motion for a new trial upon the minutes, and also from the judgment. One of the defenses contained in the answer was to the effect that the “ mortgage was given by the wife for a precedent debt of the husband, and that there was no consideration for its execution. * * * The appellant does not claim therefore to be entitled to reverse the finding of the jury on that issue because it is against the evidence, or without evidence to support, but only on the ground of erroneous rulings in regard to that evidence. She claims to reverse the findings on the other issues upon the ground they are without evidence to support them, and against the evidence.” The property covered by the mortgage is a tract of land on James street said to be worth from $20,000 to $30,000.
    It appeared in the evidence that the El Oro Mining Company is a corporation having a mine in the Republic of Mexico, and that its capital stock is $10,000,000 divided into shares of $100' each. William N. Thompson, of New York, was the president of the company, and owned something over '40,000 shares of the stock; William T. Hamilton, the husband of the defendant, was its vice-president, and held some 37,000 shares of the stock. The company had issued bonds upon its property, some $50,000 of which the defendant owned in 1884. Some evidence was given tending to show that the stock held by Hamilton was purchased by him with his wife’s money, and afterwards turned over to her as collateral for his indebtedness to her. It appears that Hamilton and Thompson in the fall of 1884 valued the property at something like $2,500,000. In 1884 the Third National Bank of Syracuse held something like $128,000 of the paper of the mining company endorsed by Thompson and Hamilton. The plaintiff became the owner of a large portion of this paper and endorser upon a large amount of the paper. The mining company was unable to pay the paper when it became due. Mr. Doheny had been counsel for Mrs. Hamilton and Hamilton and he commenced a negotiation for an extension of this paper and made efforts to obtain security to induce the extension. An extension was agreed upon, on condition that the mining company pay $5,000 per month on its indebtedness, and as part of the arrangement looking to the extension the defendant made the mortgage in suit. The mortgage was prepared under the direction of Mr. Doheny by Mr. Petit, then a clerk in Doheny’s office. The acknowledgment and certificate thereof was taken and made by John 0. Keeffe, a notary public, who for many years was in the employ of the defendant and her husband and on intimate terms with them. After such acknowledgment it was delivered to Doheny for the plaintiff. At the time the mortgage was given it seems to have been understood that it should not be immediately recorded. After the mining company failed to pay $5,000 a month pursuant to the extension the mortgage was recorded. The evidence tends to show and satisfactorily supports the finding that the plaintiff had no knowledge of the insertion of the disputed clause in the mortgage after the execution of the mortgage, and that he first learned thereof after the commencement of this action. The indebtedness which the plaintiff seeks to enforce in this action is described in the mortgage and the language used therein, as the mortgage was first drawn, it is not necessary to resort to the disputed clause in order to apply the language of the mortgage to such indebtedness.
    17 (?. Tracy, for app’lt; Louis Marshall, for resp’t.
   Hardin, P. J.

Evidence given before the circuit and before the special term satisfactorily establishes the fact that the plaintiff had no knowledge of the making of the alleged alteration prior to the commencement of this action; and that such alteration and addition were made without his personal request or procurement and without any fraudulent intent on his part. The evidence and findings are entirely satisfactory that the plaintiff did not and does not rely upon the disputed words to cover the indebtedness for which the mortgage is sought to be enforced. " Under such, circumstances if it be assumed that- the alteration or additional clause was inserted by Doheny without an original authority from the defendant or a reacknowledgment of the execution of the instrument by her after the words were inserted, ought the mortgage as first drawn to be destroyed, or held for naught ? Clearly the plaintiff never intended any fraud, nor consciously consented to any destruction of the instrument which gave him a lien on the defendant’s property as it was first drawn and executed. Notwithstanding the additional words or alterations the instrument as first drawn was still legible and its meaning and purport ascertainable, and the added words should be treated “the same as if the alteration had been made by a mere stranger without the privity or consent of the party interested.” Henfree v. Bromley, 6 East, 309. The case last cited was referred to approvingly in Rees v. Overbaugh, 6 Cow., 746. In the latter case the instrument from which the seals were torn had been left with Jackson for safe keeping, and it was said by the court in the course of the opinion that “He had no power to cancel the contract, or to interfere in any other way with the plaintiff’s right to recover the remaining balance of $500. In tearing the seals from the agreement, therefore, he did not act as the authorized agent of the plaintiff, but as a stranger.” The latter case was quoted approvingly by Andrews, J., in Casoni v. Jerome, 58 N. Y., 321, in which case it was held that the insertion in a bond by a clerk in the surrogate’s court of words unauthorized did not “relieve the obligors from liability under it as originally executed.”

In Martin v. Tradesmen's Ins. Co., 101 N. Y., 498, Huger, Ch. J, said: “ The rule is well established, that an alteration of a contract under which a plaintiff claims, made by the defendant or some third party, without the plaintiff’s consent, and while the contract is not in plaintiff’s hands, has no effect, and the contract will remain as it originally stood, provided the nature and extent of the alteration can be clearly ascertained, and it can be seen, what the contract was at the time it was executed.”

In Bigelow v. Stilphen, 35 Vt., 521, the plaintiff’s agent received defendant’s note for goods; the agent without the knowledge or assent of either party so changed the note as to make it joint and several and payable with interest, and when an action was brought upon the note it was held that its principals could recover upon it as it stood before the alteration took place. In the course of the opinion in that case it was said: “ Clearly, it is not just that a man should be deprived of an honest debt, or have the evidence of it destroyed for all beneficial purposes in consequence of misconduct of a stranger, to whose act he did not assent, and of which he had no knowledge,” and it adds: “ It is the intent that gives the act its character, and avoids the instrument, and it is difficult to understand why a man who has done no wrong, nor consented that any should be done, should be punished to the extent of the amount of his demand by having his claim can-celled by operation of law, solely because another has been guilty of an act for which he ought to be punished. Public policy does not require any such rule.” And in Robertson v. Hay, 91 Penn. St., 242, it was held that the alterations of a mortgage were to be deemed as those of a stranger, although the alterations were made by Gill, who, as agent and attorney of the party, had possession of it. Similar doctrine was held in Hunt v. Gray, 35 N. J. Law, 227, and in Nickerson v. Swett, 135 Mass., 514.

Appellant calls our attention to Rogers v. Vosburgh, 87 N. Y.r 228. That was a case where the answer alleged, “ that after the making and delivery of the note, and before the commencement of this action, the note was materially altered by the plaintiff without the knowledge or consent of defendant,” etc.; and it was held that it was error to strike out the answer as sham and frivolous. We think the case does not aid the appellant. And Benedict v. Cowden, 49 N. Y., 396, cited by the appellant, was a case where it was held the material alteration of a note took place by severance of a memorandum from the note which was an essential part of it. We see nothing in the case aiding the appellant.

Our attention is called to Waring v. Smyth, 2 Barb. Ch., 119. In that case it appeared that YYaring, the mortgagee, “ was guilty of the improper acts of altering a bond and mortgage,” and therefore he could not foreclose the mortgage, nor could his assignee have any relief to which the assignor would not have been entitled. In that case, however, it was asserted that “an alteration by a stranger without the privity or consent of the party interested will not render the deed void where the contents of the same as it originally existed can be ascertained.”

Appellant calls our attention to Marcy v. Dunlap, 5 Lans., 365. When the mortgage in that case was delivered it did not describe the defendant’s property ; subsequently the description was changed; and in an action to reform the mortgage by changing the description from lot 26 to lot H, and for a foreclosure thereof, it was held that the mortgage was vitiated and was incapable of being enforced by the plaintiffs. The case differs widely from the one before us. In the course of the opinion, however, it seems to be stated that the modern cases hold that if the alteration is the act of a mere stranger while the deed or mortgage is .out of the possession of the grantee or mortgagee, and without his knowledge or consent, it does not work a destruction of it.

When the mortgage was acknowledged by the defendant it contained a clause to the effect That the said party of the first part, in consideration of the sum of $30,000, has sold, and by these presents does grant and convey to the said party of the second part, etc.;” and the further clause that “ This grant is intended as a security for the payment of any and all notes made by the El Oro Mining Company and endorsed by William T. Hamilton and William H. Thompson, and now held and owned by the party of the second part, and of any and all renewals of said notes ; and also to secure said second party from all loss by reason of his liability as endorser0 upon any and all notes made by said El Oro Mining Company and endorsed by said Hamilton and Thompson, and any and all renewals thereof.” The lien given to the plaintiff by the mortgage secured the indebtedness mentioned in the language we have just quoted ; that, indebtedness has not been discharged and it is equitable that the mortgage should remain to the extent of $30,000 as collateral to such indebtedness; in the event of that indebtedness being discharged, or a portion of it discharged, it may be claimed in behalf of the defendant that the lien as originally created should cease or be restricted to the amount remaining unpaid on that indebtedness.

Ho such question, however, seems to have been presented at the special term or provided for in the formal judgment which was entered; perhaps the defendant, if the mortgage is held'in virtue of the views already expressed, would be entitled to have the judgment qualified in that respect We may afford her an opportunity to have the judgment modified by an insertion of such additional provision, if she should be so advised. In corroboration of the views already expressed, it may be observed that on the 17th of March, 1885, the defendant and the plaintiff entered into stipulations by an instrument under seal acknowledged on that day. before the same notary who took the acknowledgment to the mortgage. In that instrument, which related to the indebtedness of the El Oro Mining Company held by the plaintiff, and upon which the husband of defendant was liable, it was agreed, among other things, that “ as long as the whole of the net proceeds of said mine are applied to the payment of said paper monthly, provided such monthly payments amount to $5,000 each,” no proceedings were to be taken to enforce the payment of the commercial paper of the mining company, and in that instrument it was further provided, viz.: “It is agreed by the subscribers, W. T. Hamilton and F. M. Hamilton, that all property and security held by said Gleason or the said Third Hational Bank as collateral to the indebtedness or liability of said W. T. Hamilton to said bank or said Gleason shall be held, and the same is hereby pledged to said Gleason as security for the payment of said notes so to be purchased by him, except as hereinafter provided. 5. Upon the completion of the purchase ■of said notes by said Gleason in the manner aforesaid, the twenty-five bonds of said mining company and the stock of the Onondaga Iron Company, now held as collateral to said notes, shall be held .as collateral, first, to a certain other $30,000 note of the Morris Run Coal Company, on which said Hamilton and Lynch are liable as endorsers, and after said last mentioned note is paid, then said securities shall be held as collateral to the other indebtedness of said W. T. Hamilton to said Gleason or said .bank.” It may be said with considerable force that the effect of these ■stipulations on the part of the defendant with the plaintiff tend to support the position stated above, that the plaintiff is entitled to hold the mortgage as originally drawn until the indebtedness specified in the original draft of the mortgage is paid. Surely when the instrument of March 17, 1885, was executed by the de-. fendant the plaintiff held the mortgage in suit as a security, and it was embraced within the expression “ all property and security held by said Gleason * * * as collateral to the indebtedness -or liability of said W. T. Hamilton to said bank or said Gleason, * * * and the same is hereby pledged to said Gleason as .security for the payment of said notes.”

(2) It was insisted upon the trial at the circuit and at the special term, and in the argument before us, “ that the disputed clause was inserted in the mortgage with the knowledge and consent of the defendant; ” and the special term found “that said clause was written in said mortgage with the knowledge and consent of the defendant, Fannie M. Hamilton, and after the same was written therein she assented to the same and consented that it should form a part of said mortgagehowever, it is insisted in behalf of the appellant that the finding is unsupported by evidence and that the same is against the evidence in the case.

Mr. Doheny, who was called as a witness in behalf of the defendant, testified that the mortgage was prepared in behalf of the plaintiff in his office, under -his supervision ; he testifies: “ It -came back to me executed the day that it was drawn, as I remember. it, and at that time the clause referred to was not in "the mortgage. Some time after it came back to me this clause was written in; * * * I returned it to Mr. Hamilton, calling his attention to the interlineations and asking for a re-execution of it; * * * my recollection is that he took the mortgage and went down to Mr. Hamilton’s office, two floors below our own, and called his attention to some language in the addition that had been made; to the fact that we had put it in and asked that the mortgage be re-executed; and I can tell you if you wish what I think his reply was; he said that John (the notary) would go over and take Mrs. Hamilton’s acknowledgment just as soon as he could.” A few days after that, the witness continues, I went “ up stairs and found the mortgage in my office ; I think I found it on my table in my room, but 1 am not sure about that. I was also the attorney for Mr. Hamilton -at this time in various matters.” In the course of the examination of the defendant it appeared that she had authorized her husband to transact business for her in respect to the matters involved and inquired into in this action ; she testified : “ He managed everything; he had everything;” and she added that he represented her in all transactions relating to her property.

Keeffe, the notary, was called, and while giving his testimony on the subject of whether the mortgage was re-acknowledged or not, and in answer to the question whether he took a re-acknowledgment, he says: “I don’t think I did;” and when asked whether he would swear positively, he says, “ I don’t think I did;”' and upon the question being put to him again, viz.: Q. Will you swear positively that you did not? A. No, I would not swear positively that I didn’t; 1 took a great many acknowledgments about this time;” and when this witness was asked if he-did not sometime after the mortgage bears date, meet Mr. Doheny and inform him as to a second acknowledgment from Mrs. Hamilton, and that the mortgage had been left in Doheny’s office, his answer was, “ I don’t remember any such conservation;” he was then asked “ Do you swear that such a conversation did not take place? A. No, I have no recollection of any such conversation;” and the further question was put to him, “Will you swear 37ou didn’t have such a conversation? A. I won’t swear positively that I didn’t or that I did; I have no recollection of any such conversation; to the best of my recollection, I didn’t”. When the witness, William T. Hamilton, the husband of the defendant, was upon the stand, he detailed the circumstances attending the execution of the mortgage, his knowledge thereof, and his conversation with his wife in respect thereto. He admits that Mr. Doheny afterwards called upon him and said that he “ wanted to add a word to that mortgage," and he adds “there were several conversations of the same kind, similar.”

On the 11th of November, 1884, the defendant executed a power of attorney to her husband which was acknowledged on the 19th of November, wherein she appointed her husband her attorney, with authority, as follows: “for me, and in my name, place- and stead, to conduct, carry on, transact and exercise the general control and supervision over all of the property, business and interests of whatever kind, and wheresoever situated, that I now or may hereafter own, hold, claim or be interested in, and to make, execute, sign, seal and deliver for me, and in my name, all bills, bonds, deeds, mortgages, notes, leases, specialties or other instruments in writing whatever, which shall be necessary to the proper conducting, carrying on and transacting the business aforesaid, and to do and perform all and every act and deed of whatever name or nature in anywise appertaining to said business, property or interests, binding me as firmly and irrevocably by such deed or performance as if I were myself present thereto consenting, hereby ratifying, confirming and allowing whatever my said attorney shall lawfully do in the premises. ’’

This power seems to be very broad, giving him power to execute mortgages and to transact any and all kinds of business for her in respect to all property she then owned or might thereafter own, hold, claim or be interested in. The evidence abundantly shows that she was interested in the mining company and that she was affected by its credit, standing and indebtedness. It is not ■overlooked that she as a witness, and her husband as a witness, gave evidence tending to indicate that the mortgage was not re-acknowledged after the clause in question was inserted therein ; however, with all the evidence to which reference has been made before the jury and before the special term, we are not prepared to say that the finding of the jury, or the finding of the court that the additional clause in the mortgage was inserted without her assent or subsequent ratification which is equivalent to original authority. If her agent assented to it she assented to it. It may not be said that the finding is unsupported by evidence tending to sustain it. As to whether the evidence given by her and given by her husband was sufficient to countervail the evidence to which reference has been made, or not, was a question for the jury and for the trial judge. He saw all the witnesses; heard all the circumstances we have alluded to, and many others; he witnessed the searching •cross-examinations and saw the bearing of the witnesses under the .same, and when we give to his finding of fact such influence as we think it should receive, with his better opportunities to judge of the same, we are not prepared to say the finding of fact made va£ the special term is contrary to the weight of evidence; we do not, therefore, feel called upon to disturb it.

The court was authorized to set aside the findings of the jury, or use some of them, and to make the finding which is now brought in question.” Hammond v. Morgan, 101 N.Y., 186; Acker v. Leland, 109 id., 11; 14 St. Rep., 23.

(3.) Numerous exceptions were taken during the progress of the trial before the jury, and apparently were renewed at the special term, and numerous exceptions were taken to the findings of fact and iaw as made by the trial court and to the refusals to find, íind they have been largely discussed by the appellant before us. We have looked at them; this is an equity action, and § 1003 •applies, and in that section it is provided “ an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge, upon the trial, may, in the discretion of the •court which reviews it, be disregarded, if that court is of opinion that substantial justice does not require that a new trial should be granted.” The views already expressed, if adopted, seem to warrant the conclusion “ that substantial justice does not require that a new trial should be granted.”

We forbear an extended examination of the exceptions, and we are of the opinion that the orders and conclusion reached at the .special term should be sustained.

Order affirmed.

J udgment affirmed, with costs.

Martin and Merwin, JJ., concur.