author: Follett, J.:

text:
    CATHERINE WRIGHT, Respondent, v. MUTUAL BENEFIT LIFE ASSOCIATION OF AMERICA, Appellant.

      Policy of insurance — v>hen the company is bound by a stipulation printed on its bach — an agreement not to question the validity of the policy, after the death of the assured, is not void as against public policy.

    December 6, 1883, tlie defendant issued a policy of insurance by which it agreed to pay to the plaintiff’s assignor the sum of $5,000 upon the death of one Wright, the policy reciting that it was issued in consideration of the representations, agreements and warrantees made in the application. . The application • contained a stipulation that the application and the declarations therein contained, together with the answers and explanations given.to the various questions in forms A and B, indorsed thereon, should form the exclusive and only basis of the agreement between the applicant and the defendant, and “ that if any misrepresentation, or fraudulent or untrue answers or statements have been made, or if any facts which should have been stated to the association have been suppressed therein, * * * that then, in either event, such agreement shall become null and void, and all moneys which shall have been paid shall be forfeited to said association for its sole use and benefit.”
    Upon the back of the policy was printed, in large type, the following stipulation: “Uo question as to the validity of an application or certificate of membership shall be raised, unless such question be raised within the first two years from and after the date of such certificate of membership, and during the life of the member therein named. ”

      Wright having died on June 4,1885, and the defendant having refused to pay the claim, upon the ground that the representations and warranties contained in the application were fraudulent, the plaintiff brought this action to recover the amount agreed to be paid. Upon the trial the defendant offered to show that Wright, when the application was made, was afflicted with certain diseases which were among those enumerated in the application, and that he stated therein that he was not afflicted with either of them. ’ The court excluded the evidence and directed a verdict for the amount due the plaintiff.

      Held, that it did not err in so doing as the defendant was bound, by its stipulation, not to question the validity of the policy after the death of the insured.
    That the language of the stipulation, providing that “ no question as to the validity of an application or certificate of membership'shall be raised,” was broad enough to exclude a defense founded on fraud.
    That the stipulation was intended to, and did, create a short statute of limitations in favor of the insured, within which limited period the insurer must test, if over, the validity of the policy, and that it could not be held to be void as against public policy.
    Appeal from a judgment in favor of tlie plaintiff, entered upon a verdict directed at the Oswego Circuit."
    December 6, 1883, the defendant, by its policy of insurance, agreed to pay Byron D. Houghton, upon the death of Charles F. Wright, “five thousand dollars from the mortuary fund of the association, at the time of said death, or from any moneys that shall be realized to said fund from the next assessment of all surviving members.” It was recited in the policy that it was issued “ In consideration of the representations, agreements and warranties made in the application.” The application, which was signed by the insured, contained the following stipulation: “ It is expressly stipulated and agreed * * * that the foregoing application and this declaration, together with the answers and explanations given to the various questions in forms A and B, indorsed hereon, shall form the exclusive and only basis of the agreement between the above named applicant and the Mutual Benefit Life Association of America, and that if any misrepresentation or fraudulent or untrue answers or statements have been made, or if any facts which should have been stated to the association have been suppressed therein * * ’ * that then, in either event, such agreement shall become null and void, and all moneys which shall have been paid shall be forfeited to said association for its sole use and benefit.”

      In an answer to tlie question as to whether the applicant had been afflicted with any of a great number of diseases enumerated in the question, the applicant answered no. Upon the back of the policy, printed in large type, was the following stipulation : “ No question as to the validity of an application or certificate of membership shall be raised unless such question be raised within the first two years from and after the date of such certificate of membership, and during the life of the member therein named.”
    June 4, 1885, the insured died, and on the sixteenth of the same month said Byron D. Houghton served defendants with proof of his claim, and about August third, at defendant’s suggestion, an additional statement was served on defendant. August 15, 1885, the defendant issued a notice of assessment to its members in which it was stated that Charles F. Wright insured December 6,1883, under policy 1096 for $5,000, died June 4,1885, of inflammation of lungs and that the loss was adjusted August 12, 1885. It was further stated in said notice that “proof of death of the above named members having been received and found satisfactory, payment of the amount due according to the terms of the certificate has been ordered, and an assessment as below is now due from you.” The amount of the claim was realized from the assessment and paid into the mortuary fund. The defendant then refused to pay the sum, and Houghton thereupon assigned the claim to the widow of the insured, who brings this action which is defended upon the ground that the representations and warranties contained in the application were fraudulent. Upon the trial the defendant offered to show that Wright, when the application was made, was afflicted with syphilis, consumption and sciatica, as was well known to him and Houghton. These diseases were among those enumerated in the application, and the insured stated that he was not afflicted with either of them. The trial court held that the defendant was bound by its stipulation not to question the validity of the policy after the death of the insured, excluded the evidence and directed a verdict for the amount due upon the policy, upon which a judgment was entered from which defendant appeals.

      G. II. Crawford, for the appellant.

      F. E. Hamilton, for the respondent.
   Follett, J.:

Tlie defendant does not claim that its stipulation is not a part of tlie policy, but concedes by its argument that it has the same force as though contained in the body of the policy. A reversal of the ruling of the trial court is ashed for upon the ground that the stipulation is not a legal bar to the interposition of the defense, that the representations and warranties on which the policy w'as issued were fraudulent because: (1) It is not expressly agreed that the corporation may not resist the payment of the policy after the death of the insured, or after the expiration of two years, for the fraud of the insured; (2) That if the stipulation is broad and explicit enough to exclude, in terms, the defense of fraud, it is contrary to public policy and void.

In support of the first proposition we are referred to Mynard v. Syracuse, etc., Railroad Company (71 N. Y., 180); Holsapple v. Rome, Watertown, etc. Railroad Company (86 id., 275), and kindred cases, holding that general words by which a common carrier seeks to exempt himself from all liability for injury to persons or property carried will not be construed to exempt him from liability for damages caused by the earner’s negligence.

Common carriers are liable for negligence in carrying persons oí property upon two grounds: (1) in tort, for a breach of duty, to the public, imposed upon them by the common law ; (2) upon contract, for a breach of it. The second ground of liability is of comparatively recent origin. (Ang. Car. [4 ed.,] § 422.) Carriers have been so long and strictly held liable in tort for a breach of their duty to the public for negligently carrying persons or property, that their liability is said to be founded on public policy, and the rule of the common law is given the force of a public statute. When parties seek, by contract, to avoid a liability imposed upon them by public statutes, or by the rales of the common law, based upon public policy, the exemption must be expressed by apt words and in unequivocal terms; for the general words of exemption of a promissor will nqt be construed so as to l’elieve the party, whose words they are, from a liability ai'ising from his own negligence.

There is a broad difference between a contract to insure, and a contract to carry. Insurers are not, like common carriers, liable for the non-performance of their contracts upon grounds of public policy, as for a breach of duty to the public, but tlieir liabilities are created and measured solely by their contracts.

The cases referred to construe the ambiguous stipulations against the party who devised and imposed them upon the other party; while in the case at bar, we are asked to construe a stipulation, which is called ambiguous, in favor of the party who devised and voluntarily made it a part of the contract.

The language, “no question as to the validity,” is, in terms, broad enough to exclude the defense sought to be established. The remaining question is, whether the provision so.construed contravenes any rule of public policy, and is for that reason void. The stipulation provides that the validity of the policy shall not be questioned after the death of the insured ; and not after two years from the date of its issue. An action for the recovery of the sum insured not being maintainable until after the death of the insured, one effect of the stipulation, if valid, is to prevent the insurer from interposing as a defense the falsity of the representations of the insured. But its effect is not to prevent the insurer from annulling the contract upon the ground of the fraudulent representations of the insured, provided an action for that purpose is brought in the lifetime of the insured, and within two years from the date of the policy. The practical and intended effect of the stipulation is, as held by the trial court, to create a short statute of limitations in favor of the insured, within which limited period the insurer must test, if ever, the validity of the policy. 'It is settled that a stipulation in a policy limiting the time within which an action may be brought thereon, is not against public policy, and that an action begun after the lapse of the stipulated time cannot be maintained. (Ripley v. The Ætna Ins. Co., 30 N. Y., 136; Roach v. The N. Y. and Erie Ins. Co., Id., 546 ; The Mayor v. The Hamilton Ins. Co., 39 id., 45; Wilkinson v. The First National Fire Insurance Co., 72 id., 499; Riddlesbarger v. Hartford Ins. Co., 7 Wall., 386.)

If a stipulation shortening the period within which the statute permits the insured to enforce his rights in the courts is not against public policy, it is difficult to see upon what ground a stipulation shortening the time which the statute and the rules of the common law give an insurer to enforce its rights in the courts, can be held to contravene public policy. In Wood v. Dwarris (11 Exch., 493), an action on a life policy was defended on the ground that it was issued upon the express condition, that if any statement in the application was untrue, the policy should be void ; and that certain statements were untrue. The plaintiff replied, that the defendant issued a prospectus, which came to the knowledge of the insured, stating that all policies were indisputable, except in cases of fraud. The defendant rejoined, that the policy and the application formed the contract, and that the statement in the prospectus was not binding ; but the court held the rejoinder bad, and the stipulation binding. The stipulation in that case did not, like the one at bar, cut ■off a defense based upon the fraudulent representations of the insured, but, in another respect, it was broader than the stipulation •under consideration, because it absolutely cut off the insurer’s right to litigate the validity of the policy because of the untruth of the representations, no time being given to the insurer in which to contest upon the ground that the representations were untrue.

A stipulation like the one under consideration ought to be an incentive for the insurer to exercise vigilance and good faith in investigating the truth or falsity of the representations upon which the policy is issued while the matter is fresh. The witnesses are all ’.alive and the exact truth can, if ever, be ascertained, and the .stipulation prevents the insurer from lying by and receiving the premiums during the life of the insured, and after his death, when ■the good faith and truth of his representations cannot be supported by his oath, contesting the policy upon the ground that the insured’s representations were false or untrue. Such a stipulation is neither unreasonable nor contrary to public policy.

The stipulation in the application, that any fraudulent or untrue •statements by the assured vitiates the policy, and the stipulation •under consideration, are not inconsistent. The stipulation in the ■application preserves the company’s right to avoid the policy for fraud or untrue statements during the term limited. In Wood v. Dwarris (supra), it was stipulated in the application that any ■untrue statement should render the policy null and void, but it was held that the stipulation that the policy should be indisputable was not controlled by the policy and application. The defendant ¡must abide by its stipulation, put forth for the purpose of attracting customers, and it must be read in tlie sense in which the parties read it when the contract was entered into.

The judgment is affirmed, with costs.

Hardin, P. J., and BoardmaN, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Pee CubiaM :

license: Public Domain

text:
    In the Matter of the Application of the Commissioners of Highways of the Town of Onondaga for Authority to Lay a Highway through a Building Inclosure of ISAAC JAMES.

      Proceedings to open, a highway through a barn-yard — 1B. S., 514, sec. 57, as amended by chap. 773 of 1873 — the proper practice as to mode of reviewing the decision of the court and the order of the county judge, stated.

    Tliis motion w is made at a General Term of this court for the confirmation of an order of a county judge confirming a decision of the commissioners of highways, certifying that the public interests would be greatly promoted by laying out and opening a highway, between two designated points in the town, which would pass through the barn-yard of one James, and that the necessity of the highway had been certified to by a jury of twelve men. The order of the county judge recited that the matter was heard before him upon the commissioners’ certificate and maps, which were brought before the General Term.

      Reid, that an objection to the confirmation of the order, based upon the ground that the record did not affirmatively show that all of the precedent steps, required to authorize a jury to certify to the necessity of the proposed highway, were duly taken, should be overruled.
    That the commissioners, the county judge and this court could act upon an allegation that a certificate had been made, in the absence of a denial of the allegation by the land owner, and that it was not necessary that it should appear by the record that all of the preliminary steps, which it was required should be taken to authorize the adjudication, were actually and duly taken.
    The county judge, in reviewing the decision of the commissioners, should determine the question on the certificate and upon such evidence as may be taken by him, or, in other words, there must be a retrial of the question before the county judge if the matter is there contested by the laud owner.
    It not being in accordance with the practice of this court to retry questions of fact at the General Term, the motion to confirm the report of the countv judge should be there heard upon the evidence taken, and the proceedings had before the county judge.

      MotioN to confirm the order of the county judge of Onondaga county, affirming the decision of commissioners directing a highway to be laid out and opened in the town of Onondaga in said county.

      E. G. Wright, attorney for the commissioners.
    . Tousley & Collins, attorneys for xsaac James.
   Pee CubiaM :

The commissioners of highways of the town of Onondaga certified to the county judge of the county of Onondaga that the public interests would be-greatly promoted by laying out and opening a highway between two designated points in said town, the proposed route passing through a barn-yard of Isaac James. It was recited in said certificate that the necessity of said highway had been certified to by a jury of twelve men. Due notice was given to James to appear before said county judge and attend the hearing of said matter, upon which hearing (both parties appearing) the county judge, by an order made and entered, affirmed the decision of the commissioners of highways. The commissioners, upon due notice to James/present the order of the county judge to this court for confirmation, which is opposed by James. These proceedings are taken under section 57, 1 Revised Statutes, 514, as amended by chapter 773, Laws 1873; 2 Revised Statutes (7th ed.), 1238.

The substantive part of the section is clear enough, and is to the effect that highways shall not be laid out through buildings or yards without the consent of the owners, unless authorized by the commissioners of highways, the county judge and the General Term. But a complete mode of procedure for obtaining such authorizations is not prescribed in the section, and much must be supplied by the eourts to render the section workable. It is the clear duty of the'eommissioners to examine the property affected by the proposed highway, and from their inspection and the evidence given upon the hearing before them to determine and certify whether locating 'the proposed highway through the buildings, yards or inclosnres, will greatly promote the public interests. If the commissioners fiertify that the highway, should be so located they are required to ■give the owner five days’ notice of a hearing of the matter before the county judge. The section does not, in terms, require the commissioners to serve any papers upon the land owner, except the notice of hearing; nor does it prescribe whether the matter shall be heal’d by the county judge upon the commissioners’ certificate, and the evidence taken by them, or upon their certificate and evidence taken by the.county judge, as upon a retrial. But construing the section so as to make the procedure harmonize with the procedure in other proceedings for the review of questions of fact by county judges and county courts, and so as to best protect the rights of the public and of the land owner, we are of the opinion that the county judge should determine the question on the certificate, and upon such evidence as may be taken by him, or, in other words, that there must be a retrial of the question before the county judge if the matter is there contested by the land owner. If the county judge affirms the decision of the commissioners, they must give the land owner eight days’ notice of the time and place where they will present the order of the county judge, to the General Term of the Supreme Court of the department in which the land is situated, for confirmation. The section does not prescribe that the evidence taken, and the proceedings had before the county judge, shall be presented to the General Term with the order, but without the evidence, this court is without means of determining the rights of the parties. It not being in accordance with the practice of this court to retry questions of fact, we are of the opinion that it was intended that the hearing in this court should bo upon the evidence taken, and proceedings had before the county judge.

In this case it is recited in the order of the county judge that the matter was heard before him upon -the commissioners’ certificate and maps. It not appearing that other evidence was offered or taken, and the certificate, maps and order being before us, we are called upon to determine the rights of the parties on this meagre record. We cannot consider the affidavits (verified since the hearing before the county judge) which profess to set forth the- facts bearing upon the claims of the contending parties. These affidavits were not before the county judge, and form no part of the record before us.

Section 57, as amended by chapter 773, Laws 1873, and section 60, as amended (sub nom.,, § 75) by chapter 696, Laws 1881, are not inconsistent, and highways cannot be laid through buildings or yards unless- authority is acquired pursuant to section 57. It is urged that the order should not be affirmed because the record before this court does not affirmatively show: First. That all of the required precedent steps to authorize a jury to certify to the necessity of the proposed highway were duly taken. Second. That the record does not show that the commissioners proceeded to lay out the highway within thirty dajs from the date of the certificate of the jury. It is recited in the commissioners’ certificate, and in the order of the county judge, that a jury had certified to the -necessity of the highway. If such was not the fact, the land owner should have shown it, or at least denied it, before the commissioners or the county judge. This proceeding is auxiliary to the proceeding under section 60, and the commissioners, the county judge and this court may act upon an allegation that a certificate has been made, in the absence of a denial of the allegation by the land owner, and it is not necessary that it should appear by the record (in the absence of a denial) that proof that all of the preliminary steps, which were necessary to be taken to authorize an adjudication under section 60, were actually and duly taken. Section 57 provides that after the order of the county judge has been confirmed by the General Term “ It shall then be the duty of the commissioners to proceed and lay out and open said road as in other cases ” (People ex rel. Banner v. Temple, 27 Hun, 128), which disposes of the second objection.

Observing the rule that adjudications are not to be reversed without cause shown, and no error appearing upon the record, the order of the county judge must be confirmed, but the practice being new, without costs to either party.

Present — Hardest, P. J., BoardmaN and Follett, JJ.

Order of the County Court confirmed, without costs to either party.


author: JBoardmaN, J.

text:
    FAIRBANK CANNING COMPANY, Respondent, v. SETH X. METZGER AND THEODORE G. METZGER, Appellants.

      Executory sale of goods — right of a purchaser to refuse to accept them, on account of defects in quality or condition — when a right to recover the damages, a/rising out of a breach of an express warranty, survives an acceptance of the goods — there exists no implied warranty on the sale of provisions as merchandise, it is otherwise when they are sold for consumption.

    Ia this action, which was brought to recover the price of beef sold and delivered, the defendants sought to recoup damages for a breach of an express warranty as to the quality or condition of the beef, alleged to have been given by the plaintiff upon the sale. The General Term, after reviewing the evidence and affirming the finding of the referee that no express warranty was given, and holding that the defendants, by selling portions of the beef after the car containing it had been opened and its condition ascertained, had lost all right to refuse to receive it, stated the following conclusions as expressive of the law applicable to such cases:

      First. An executory contract for the sale of personal property may be with or without express •warranty as to its quality, description or condition.

      Second. If an express warranty is not a part of the contract of sale, the purchaser may decline to receive the property when offered for delivery, if, after reasonable opportunity for examination, he finds it is not such as was contracted for.

      Third. The acceptance and use of the property in the last case is an admission that the contract has been complied with, and no action can thereafter be maintained against the vendor for defects existing at the time of the delivery or afterwards discovered.

      Fourth. The purchaser, to protect himself from such losses, must exact from the vendor an express warranty of quality, condition, fitness, etc.

      Fifth. Where property is bought under such a warranty the purchaser, on tender of delivery, may reject the same, if it is not what was contracted for; or, he may receive and use it and seek a recovery of his damages for the breach of the warranty.

      Sixth. The express warranty survives an acceptance by the purchaser whenever the defects are of a character not readily to be discovered on an examination of the property after delivery. It is not quite clear that the buyer may accept of property under an executory contract with warranty, knowing, at the time of acceptance, that it was not what the vendor had warranted it should be, and still retain the right of action for the breach of warranty.

      Seventh. There is no implied warranty of quality, condition or soundness, oni the sale of provisions as merchandise, though a different rule applies when’ provisions are sold for consumption.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action, brought to recover the price of a shipment of dressed beef sold and delivered to defendants by the plaintiff, was defended upon the ground that there was a warranty as to the quality of the beef, and a breach theréof; and that there was an implied agreement that said beef should be merchantable when arrived in the State of New York, and that there was a failure to perform such agreement.
    In the latter part of February, 1883, a correspondence was opened between the plaintiff and the defendants, which resulted in defendants ordering from plaintiff, during the month of March, four carloads of dressed beef, three of which, shipped respectively on March fourteenth, seventeenth and twenty-fourth, were paid for by New York draft upon the receipt of the bill for each shipment; the fourth shipment was forwarded from Chicago upon defendant’s order, March 31, 1883, in Zimmerman’s car No. 711, and was delivered to defendant’s agent at Dunkirk April second, by an order received from Elmira. The referee found “ that the meat in the last car, when it arrived at Dunkirk, was slimy and dead looking, and did not have the bright look it should,” and that it was not merchantable.
    The car was opened at Dunkirk and meat, was sold therefrom ; was forwarded east from Dunkirk April fifth, arriving at Salamanca April sixth, where the car was opened by defendent’s agent, but no meat sold; forwarded from there to Olean, where, on April seventh it was again opened and meat sold therefrom, as was also the case at Cuba and Friendship on April ninth, and “Wellsville on April tenth. The first direct complaint as to the quality of the beef in this shipment was contained in a letter from defendants dated April tenth, and received by plaintiff April twelfth. Upon the arrival of the car at Elmira, April twelfth, defendants ordered it returned to plaintiff, notifying plaintiff by telegram, whereupon plaintiff telegraphed defendants as follows, viz.: “ Will not accept reshipment. If you do reship, it is at your expense and risk, and will hold you responsible.” The car was thereupon ordered back to Elmira by defendants and the beef was disposed of by them.

      The referee found that by the agreement made between the parties the plaintiff represented to the defendants and agreed that it would furnish to them beef that had not been heated before being killed; that was thoroughly chilled before being loaded on the cars, and that was in first-class condition in every respect and was merchantable, but refused to find that there was any warranty. He also found that the meat in the second, third and last cars was not as agreed by the plaintiff, but found that there was no warranty as to the quality and condition of the meat in said cars.

      Gabriel L. Smith, for the appellants.

      Diven <& Redfield, for the respondent.
   JBoardmaN, J.

If the defendants had the right to refuse to receive the car load of beef at Dunkirk on the fourth day of April, when the car was opened and the condition of the beef ascertained, • they forfeited such right by selling beef from the car at various points between Dunkirk and Elmira, and by their neglect for eight days to exercise such right.

The defendants must rely solely upon an express warranty by plaintiff of the kind, quality or condition of the beef sold and delivered to the defendants, which survived the acceptance of the property by defendants. If there were such a warranty, there was, beyond doubt and on the facts found, a breach of it, and the defendants should have been allowed their damages. The learned referee has found that there was no warranty, and hence no damages were allowed the defendants.

Was there such a warranty as entitled the defendants to recoup their conceded damages ? That is the only question to be decided, and on its decision depends the validity of this judgment. The contract is wholly shown by the correspondence between the parties. Hence it becomes a matter of construction of the written evidence. After a careful examination of the evidence, we do not find any express warranty of the kind, quality or condition of the beef sent. There are preliminary negotiations, in which the defendants say' what they will want if they trade with plaintiff, and the latter gives prices and states: “ That they will be' well dressed and cleaned; in ’ fact, in first class condition in every respect,” etc. But tbis letter does not get an order. On March twelfth defendants order one car load of good steers in good condition,” etc. Plaintiff fills the order March fourteenth, saying: “ Shipped you car of good beef to-day.” That car load was satisfactory to defendants. The second car load was shipped on the seventeenth, on an order saying: “ If beef all right, will take one car; * * * add thirty good steers, hind quarters.” Plaintiff’s reply, in substance: Order received and beef will be shipped. And on seventeenth telegraph: “ Shipped car of beef.” Defendants say, in substance, that car load is satisfactory. The next car load was shipped on twenty-fourth, on order of defendants: “Will take car of - beef at prices of today.” On twenty-second plaintiff says: “We will take all the pains possible to have the beef turned out in the very best condition; think you will find an improvement in next shipment,” etc. On the twenty - seventh the defendants ordered the fourth car of beef by telegram, and, at same time, complain of the condition of the beef that comes in Merchants’ Dispatch. That car was shipped the thirty-first of March, but on twenty-ninth plaintiff writes that it will be shipped “ in a Zimmerman refrigerator car, which belongs to us; we know that the beef will go through all right and reach you in splendid condition.” On thirty-first, plaintiff sends telegram to defendants: “ Shipped you load of beef to-day,” etc. This gives the evidence, so far as necessary, to show that no express warranty was given by plaintiff of the kind, quality or condition of any of the beef sent. Plainly, the defendants wanted and expected and had a right to receive good merchantable beef in good condition. Under the contract, the plaintiff should have furnished such beef. If it were not so furnished, the defendants could reject and refuse to receive it. The defendants understood that they might reject the beef if it was not up to contract. They say: “ Unless you can send your beef in as good a condition as your competitors, Armour & Co. and G. F. Swift, will not accept it.” Again they say: “We have wired you an order for a car of beef, if all right:” and again, “ If beef all right, will take one car.” This language indicates an understood purpose on the part of the defendants to exercise the right of rejection if occasion required. That right might exist in connection with an express warranty if it were a part of the contract (Muller v. Eno, 14 N. Y., 601), perhaps even without. (Day v Pool, 52 N. Y., 416, 418; Parks v. Morris Ax and Tool Co., 54 id., 586, 591.) But even an express warranty would not avail the defendants if the defects of the beef, when, first examined, were clearly visible and known to the defendants or their agent. (Day v. Pool and Parks v. Morris Ax Co., supra) It is there held that open and visible defects are not warranted against, Day v. Pool (p. 420). In Briggs v. Hilton (99 N. Y., 528, 529), it is held that the purchaser may reject the goods purchased upon an executory contract as not answering the bargain; but if the sale was with warranty, he may receive the goods and have the right to compensation if the warranty is broken; And this does not conflict with Reed v. Randall (29 N. Y., 858), as is explained in Day v. Pool (supra, at page 421); Muller v. Eno (14 N. Y., 597); Dounee v. Dow (57 id., 16, 23; S. C., 64 id., 411.)

After much consideration, we have come to the following conclusions as expressive of the law applicable to the present case, viz. :

First. An executory contract for the sale of personal property may be with or without express warranty as to its quality, description or condition.

Second. If an express warranty is not a part of the contract of sale the purchaser may decline to receive the property when offered for delivery, if, after reasonable opportunity for examination, he finds it is not such as was contracted for.

Third. The acceptance and use of the property in the last case is an admission that the contract has been complied with, and no action can thereafter be maintained against the vendor for defects existing at the time of the delivery or afterwards discovered.

Fourth. The purchaser, to protect himself from such losses, must exact from .the vendor an express warranty of quality, condition, fitness, etc.

Fifth. Where property is bought under such a warranty the purchaser, on tender of delivery, may reject the same, if it was not what was contracted for, or he may receive and use it, and seek a recovery of his damages for the breach of the warranty.

Sixth. The express warranty survives an acceptance by the purchaser whenever the defects are of a character not readily to be discovered on an examination of the property after delivered.

It is not quite clear that the buyer may accept of property under an exeeutoiy contract with warranty, knowing, at the time of acceptance, that it was not what the vendor had warranted it should be, and still retain his right of action for the breach of warranty. (Chatfield v. Frost, 3 Th. & C., 357, 359; Brown v. Burhans, 4 Hun, 227, and cases hereinbefore cited.)

Seventh. There is no implied warranty of quality, condition or soundness on sale of provisions as merchandise (Moses v. Mead, 1 Den., 378; affirmed, 5 id., 617), though a different rule applies when provisions are sold for consumption. (Id.)

In case of Burch v. Spencer (15 Hun, 504) the action was in form on warranty and for fraud and deceit, in selling boar meat to a retailer of provisions and representing that it was not boar meat. It was' held to be an action on warranty, and a recovery by the seller was reversed on the ground that plaintiffs were retailers as well as wholesale merchants, and that meat packed by them was sold to their neighbors for food. Thus the rights of the buyer to recover damages was brought directly within Moses v. Mead (supra). Certainly the latter case was recognized as law.

"We think the learned counsel for the defendants, in his elaborate brief, has failed to recognize some of the principles to which allusion has been made. For instance, the liability of a vendor with express warranty is very different if no such warranty is made. His duty under the contract of sale may be the same in each case, but the consequences very different on failure to perform his duty. Again an implied warranty is urged upon us as a basis of damages with as much zeal as an express warranty, while we have seen that such claim is not well founded. Again, in his brief, the counsel concedes that this doctrine of estoppel by acceptance might apply to this case if all the parties had resided in Elmira and the delivery was to be thus made. But though the delivery of this beef was to be made in Chicago, the defendants had the right to examine it at Dunkirk and reject it if defective.

But, we again repeat, the sole question is, was there an express warranty of the goodness and soundness of this beef? "We regret that we do not find any satisfactory evidence of one. It was simply á contract to sell car loads of beef of certain kinds. The plaintiffs, as it seems to us, studiously and consciously avoided warranting the property sold as to its quality or condition. The defendants have suffered damages by reason of the transaction. W e should be glad to allow them a remedy if the principles of law would permit, but we think it would be dangerous to permit purchasers to receive and sell property knowing it was not a performance of the vendor’s contract of sale, and afterwards sue the vendor for damages arising from such known defects. Perhaps another court may hold that an express warranty of quality is shown in this case.

The judgment must be affirmed, with costs.

HaediN, P. J., concurred; Eollett, J., dissented.

•Judgment affirmed, with costs.


text:
    ELLIS J. WESTLAKE and Others, Respondents, v. SARAH M. WHEAT and WILLIAM WHEAT, Appellants.

      Trust — what is a sufficient declaration of it.

    On May 4, 1858, George McNish died, leaving a widow, five sons and five daughters. By liis will, executed April 14,1858, he divided among nine of his children all his property, except his homestead and household furniture, which he gave to his widow for life, directing that after her death they should he sold and the proceeds thereof he divided between the nine children named in the will, each son to receive two dollars to the daughters’ one, except the defendant Sarah M. Wheat, who should have two dollars, or a son's share. Harriet Westlake, the daughter who was not mentioned or in any way provided for in the will, died in 1863, leaving three children, the plaintiffs herein, who were alive at the time the will was executed.
    On May 1, 1858, an instrument was prepared, at the instance of the testator, which, after reciting that in his will, he had bequeathed two shares to the defendant Sarah, one-half of which was intended to be by her laid out and expended for the benefit of his daughter, Harriet Westlake and her children, stated that the said Sarah M. Wheat and her husband accepted the trust and promised the said testator that they would truly and faithfully carry out his views and wishes, in the expenditure of the funds, according to the best judgment of the said Sarah M. -The testator intended that the defendants should execute the instrument, but died before that was done. Before the will was admitted to probate the defendants, with full knowledge of the terms of the will, at the request of the widow, acting for Mrs. Westlake and her children, signed sealed and delivered to her the above described instrument.

      Held, that the recitals contained in said instrument, and the surrounding circumstances, were sufficient to justify the conclusions that it was the intention of Mrs. Wheat to then divest herself of the title and vest her sister and her sister’s children with the title to one-half of the interest bequeathed to her, Mrs. Wheat, and that a legal trust, enforceable against herself and her husband, was thereby established.
    Appeal from a judgment in favor of the plaintiffs, entered in Chemung county, upon the trial of this action by the court without a jury.

      McGuire c& Taber, for the appellants.

      Dailey & Bentley, for the respondents.
   Follett, J.:

Appeal from a judgment for $606.41 damages, entered upon the decision of a Special Term.

May 4, 1868, George McNish died, leaving a widow, five sons and five daughters. Sarah M. Wheat, defendant, and Hannah Westlake (the plaintiffs’ mother), were two of the daughters. By his will, executed April 14, 1858, he divided all of his property, except his homestead and household furniture, between his widow and nine of his children, Harriet Westlake being left wholly unprovided for. The homestead and household furniture were given to the widow for life, and after her death, to be sold and the avails divided between the nine children mentioned in the will (Mrs. Westlake being the one not mentioned), the heirs of a dead child (if any), taking the parent’s share, in such proportion that the sons should receive two dollars to the daughters’ one dollar, except that Sarah M. Wheat should have two dollars, or a son’s share; in other words, the sons and Mrs. Wheat were each to receive two-fifteenths, and three of his daughters named, one-fifteenth each of the avails of the homestead and furniture.

Mrs. Westlake died intestate, in the year 1862, leaving three sons, the plaintiffs, who were in being when the testator died. In 1878 the testatoi’s widow died, and thereafter, the homestead and furniture were sold and the avails divided; each of the sons and Sarah M. Wheat receiving two-fifteenths, $1,005.25, and each of the three 'daughters named in the will, one-fifteenth, $502.62. The plaintiffs received nothing, but claim that the defendants hold $502.62 in trust for them, under the following instrument;

Whereas, George McNish, of Ilorseheads, Chemung county, and State of New York, has, by his last will and testament, bequeathed to his daughter Sarah M. Wheat, wife of William Wheat, two shares of the property that shall remain to be divided according to the terms of his said will after the death of his wife Julia McNish, the one-half of said bequest was intended by the testator as a fund to be used for the benefit of his daughter Harriet Westlake, wife of Charles Westlake, and her children, to be by her, the said Sarah M. Wheat, laid out and expended for their benefit as aforesaid, at such times and in such manner as the said Sarah M. Wheat shall deem expedient.

Now, therefore, we the said William Wheat and Sarah M. Wheat, do hereby accept the trust so as aforesaid reposed in the said Sarah M. Wheat, by the aforesaid George McNish, and we do hereby promise the said George McNish, that we will truly and faithfully carry out his views and wishes in the expenditure' of the funds aforesaid, so far as in our power lies, and according to the best judgment of the said Sarah M.

In witness whereof wo have hereunto set our hands and seals this 1st day of May, 1858.

“ In presence of

“WILLIAM WHEAT, [l. s.]

“ SARAH M. WHEAT, [l. s.] ”

The trial court found, as facts, that this instrument was drafted on the day of its date at the instance of the testator, who intended to procure the defendants to execute it, but died before doing so. The will was probated May 21, 1858. The trial court also found, that after the testator’s death, and before May 21, 1858, the defendants, with full knowledge of the terms of the will, at the request of Julia McNish, the widow, acting for Mrs. Westlake and her children, signed, sealed and delivered to her the foregoing instrument. It is also found that the testator intended that Mrs. Wheat should hold one-half of the amount given to her, in trust for Harriet Westlake and her children.

The defendants, before this action was brought, repudiated the alleged trust, and Mrs. Wheat claimed to hold the whole sum in her own right, under the will. No question is made over the fact that the judgment is for the recovery of the trust fund. The interest given Mrs. Wheat by the will cannot be diminished oi* “ altered otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed.” (2 R. S. 64, § 42.) The testator’s legal intent, evinced by the will, controls the rights of the parties, and his actual intent, evinced by the unexecuted writing of May 1, 1858, and his oral declarations that Mrs. Wheat should hold one-half of the interest bequeathed to her in trust for Mrs. Westlake and her children does not convert Mrs. Wheat’s absolute title to the whole bequest to a title in trust for Mrs. Westlake and her children to one-half of the bequest. The will.speaks as of the testator’s death, and when he died Mrs. Wheat was entitled, under the will, to two-fifteenths of the remainder of the homestead and furniture, and Mrs. Westlake to nothing.

Prior to defendant’s execution of the above-quoted instrument, called a “ declaration of trust,” no legal obligation rested on the defendants, or either of them, in favor of Mrs. Westlake or her children. The plaintiff’s right of action, if any, against the defendants, arises out of the declaration of trust,” somewhat aided, it may be, by the moral obligation resting upon Mrs. Wheat to carry out her father’s wishes in respect to providing for her sister and and her children.

A donee’s rights arising from an executed gift, or from an executed voluntary settlement, may be enforced against the donor or settler. It is an exception, rather than a rule, to find trusts founded upon valuable considerations, or rtpon a consideration which would support an executory promise. If this declaration of trust and the surrounding circumstances are sufficient to justify the conclusion that it was the intention of Mrs. Wheat to then divest herself of the title, and vest her sister and her children with the title to one-fifteenth of the residuum, or one-half of the interest bequeathed to her, and thereafter that her husband and herself should hold and administer the one fifteenth for the benefit of Mrs. Westlake and her children, a legal trust was established, enforceable against the defendants. ( Wright v. Miller, 1 Sandf. Ch., 103; rev. 4 Barb., 600, affirmed, 8 N. Y., 9; Day v. Both, 18 id., 448; Martin v. Funk, 75 id., 134; Young v. Young, 80 id., 422; Kekewich. v. Manning, 1 De Grex, M. & G., 176; 2 Pom. Eq. Jar, §§ 996, 997; 1 Perry on Trusts, §§ 95-100; L'ewin on Trusts [8tb ed.], cliap. 6.) The discussiqn of the subject by the author last cited is full and instructive. Under the evidence, we think it was well held that the defendant perfectly converted themselves into trustees, in favor of Mrs. Westlake and her children, of the one-fifteenth of the homestead and furniture.

' It is urged that the findings that defendants sealed the declaration of trust, that defendants signed it with full knowledge of the terms of the will, and that the intestate intended that one-half of the legacy to Mrs. Wheat should be applied for the benefit of Mrs. Westlake are contrary, to the evidence, for which reason the judgment should be reversed. It is recited in the declaration of trust that it is sealed. Charles Westlake testified that defendants delivered it, to Mrs. McNish in his presence shortly after the testator’s death, and that Mrs. McNish delivered it to Mrs. Westlake on the same day, and that it was then sealed. Prank Westlake testified that, the instrument was in the same condition at the trial that it was when he first saw it, many years before. The defendants testified that it was not sealed when they executed it, and their son-in-law testified that it was not sealed when he copied it, four or five years before. This evidence presented a question of fact, the decision of which this court will not disturb.

We are not disposed to believe, from the circumstances, that the defendants executed the instrument without knowing the terms of the will; and the fact that this declaration" of trust was drawn at the instance of the testator and by the person who drew the will, is a circumstance supporting the finding in respect to the testator’s intention. The situation of these families has greatly changed since the declaration of trust was signed. Then the father had just died, the mother was alive and these sisters lived near each other with their children. Twenty years passed before the mother died, and Mrs. Wheat’s interest under the will vested in possession. Seven year’s more elapsed before this case was tried. Mrs. Westlake had been then twenty-three years dead, her children had become men and were scattered, and the feelings existing at and about the time of the father’s death had undoubtedly changed. Under these circumstances we do not think it strange that the court found, in effect, that self-interest and the lapse of twenty-seven years had dulled the recollection of the defendants as to some of the facts and circumstances attending the execution of this instrument. ¥e do not think the defendants can justly complain of the findings of fact.

The judgment is affirmed, with costs.

IíardiN. P. J., and Boabdman, J., concurred.

Judgment affirmed with costs.


author: Follett, J. ;

text:
    CHARLES E. HUBBELL and Others, Appellants v. DANIEL BUHLER and ELBERT STANNARD, Impleaded with Others.

      Partnership for a single adventure — duration of it — it cannot he terminated at will hy one of the parties.

    Where a copartnership is formed to undertake a particular enterprise and complete the same in a mode specifically agreed upon, an understanding that the partnership shall continue until the particular enterprise undertaken shall he concluded will be implied, even though the duration of the partnership may not be fixed by the articles.
    Such a partnership cannot be terminated at the will of one or more of the parties, or by notice given or suit brought by him or them ; it can only be terminated for some one of the caires recognized by the courts as sufficient to authorize them to wind up a partnership.
    Appeal from a judgment entered in the clerk’s office of Onondaga county, dismissing the complaint in this action, with costs.
    The action was one in equity, and was tried at the Onondaga Special Term. It was brought by two members of a firm, against the other four members thereof, to restrain them from disposing of the partnership property, in violation of the terms of the partnership. The complaint prayed for the appointraen, of a receiver, a disposition of the partnership property by him and a judgment for an accounting, and that the joint enterprise be closed. The defendants, Richards and Smith, are made defendants because they refused to join as plaintiffs:

      William, G. Tracy, for the appellants.

      A. B Dyett, for Bubler and Stannard, respondents.
   Follett, J. ;

Appeal from a judgment, entered upon the decision of a Special Term dismissing the complaint. Two of the defendants, Richards and Smith, admitted all of the material allegations of the comolaint, but did not appeal, and are not represented in this court.

The parties to this action are identical with the parties to the written contract of October 13,1883, which they agree was executed with the mutual intent that it should become operative and binding upon the signatories in case the defendants purchased the interest of Patrick Clancy in the vessels under the written contract of September 19, 1883. As between the parties, the contract of October 13, 1883, was a legal contract, and when the defendants became (October 24, 1883) the owners of Clancy’s interest said written contract became, and now remains, the measure of the interests, rights, powers and duties of the parties, unless they abrogated said contract by an oral agreement mutually entered into Monday, October 22, 1883, which the trial court found was not done which finding, we think, is sustained by the evidence.

By the first and second subdivisions of the contract of October 13, 1883, the vessels were to be stripped to the bare hulls, and all materials so obtained sold, and then the bare hulls were to be sold by public auction at such time as the parties might agree. Before this action was begun (March 10, 1885) the vessels had been, substantially, stripped to thexbare hulls, the materials so obtained sold and the avails divided between the parties according to their respective interests. About this time the parties disagreed as to the manner in which the bare hulls should be disposed of. The plaintiffs and two of the defendants, Richards and Smith, claimed that by an oral agreement, mutually entered into October 22, 1883, the bare hulls were to be broken up and the materials sold. The defendants Buhler and Stannard denied the existence of such an oral agreement and claimed that the bare hulls were to be sold by auction, as provided by the second subdivision of the written contract of October 13, 1883. As before stated the trial court found that an oral agreement was not mutually entered into, and that the written agreement controlled the rights of the parties. There being no other question in dispute in this action this finding is decisive of the rights of the, parties involved in this action, unless the mere fact of the existence of a disagreement between the parties entitles the plaintiffs to demand that the copartnership shall be dissolved before the one particular enterprise, which it was formed to carry out, has been completed.

It is immaterial whether the combination formed by the parties is a “ joint adventure,” or a “ limited copartnership ” (not limited in the statutory sense as to liability, but as to scope and duration), as, under our law, both are governed by the same rules. (Pollock’s Part. [3d ed.], 4 and 5.) When the duration of a partnership is not fixed by the articles, or is not to be implied from the circumstances, it is a partnership at will. (Story’s Part., § 84; Lind. Part. [3d ed.], 229.) In this case the duration of the combination was not fixed by the contract, but the combination being for one particular adventure, to be carried out in a mode specifically agreed upon, it must necessarily be implied that the understanding was that the partnership, or joint adventure, was not determinable at the will of any one of the partners, but that it was to continue until the single enterprise undertaken should be concluded. This being so, and it having been well found, as a matter of fact, that the contesting defendants, Buhler and Stannard, had not violated the partnership agreement, but were engaged in carrying it out according to its terms, it follows that the plaintiffs cannot maintain this action. (Henn v. Walsh, 2 Edw. Ch. 129 ; Goodman v. Whitbomb, 1 J. & W., 589; Story’s Part., §§ 231, 2S6, 287, 288; Lind. Part. [3d ed.], chap. 8.) This being so, the plaintiffs could not terminate the partnership at will, by notice or by suit, but could terminate it only for some one of the recognized causes, sufficient in law to authorize courts to wind up partnerships. (See authorities above cited.) The only cause alleged in the complaint for winding up and appointing a receiver of this partnership is the alleged violation by the defendants, Buhler and Stannard, of an alleged provision in the partnership agreement, which provision, the trial court found, never existed. The result of the finding of the trial court is that defendants, Buhler and Stannard, have not been guilty of any misconduct, but were, when this action was begun, engaged in conducting tlie business of an existing partnership in accordance with the articles of partnership, and that the plaintiffs, failing to have the business conducted in violation of the articles of partnership, brought this suit to accomplish that purpose.

The cases relied upon by the plaintiffs are not in point. In McElvey v. Lewis (76 N. Y., 373); Skinner v. Tinker (34 Barb., 333); Peacock v. Peacock (16 Vesey, 49), and in Featherstonhaugh v. Fenwick (17 id., 298) the partnerships were determinable at the will of either partner. In Law v. Ford (2 Paige, 310) either partner had the right to terminate the partnership at any time, and the articles made no provision for winding up. Marten v. Van Schaick (4 id., 479) is so meagrely reported that it cannot be ascertained with certainty whether the partnership was at will or for a fixed term, and if for a fixed term, whether the term had expired; but from the facts reported the fair inference is that the partnership was terminable at the will of either party.

It is urged by the plaintiffs that though a sufficient cause for compulsively winding up this partnership through a receiver, midway in its existence, did not exist when the action was begun, that a sufficient cause was created by the partial burning of the vessels by the accidental fire of August 22,1885. Whether the hulls were so injured by this fire that they could not be profitably sold as hulls was a litigated fact which the trial court found against the plaintiffs. The court found: Fifth. “ That the said vessels, notwithstanding such partial burning, may nevertheless be sold at public auction in heir present condition.”’ The plaintiffs, by their tenth request, asked the court to find that the hulls were so injured by said fire that they could 'not be profitably disposed of as hulls, but could be more profitably disposed of by being broken up and the materials sold, which the court refused to find. This finding and refusal to find we are not disposed to disturb. None of the exceptions to the rulings, rejecting or admitting evidence upon the trial, are discussed by the appellants in their brief, and we have discovered none requiring discussion by this court.

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

J udgment affirmed, with costs.


text:
    HENRY J. BAKER and SAMUEL J. DOWNS, Respondents, v. WARREN J. HERKIMER, Appellant. ERASTUS A. TAYLOR and ELON J. DURFY, Respondents, v. SAME, Appellant. GEORGE D. LATHROP, Respondent, v. SAME, Appellant. WARD L. PHILLIPS, Respondent, v. SAME, Appellant.

      Supplementary proceedings — when defects in the return of the execution by the sheriff-are waived by the appearance of the debtor — when a receiver should be appointed although the legal title to real estate is vested in-the debtor.

    When the affidavit, used upon an application for an order requiring a judgment debtor to appear and be examined, states all the facts necessary to give the judge jurisdiction to grant the order, and the debtor has appeared and submitted to an examination and to the appointment of a receiver without objection^ it is too late to move to vacate the order upon the ground that the sheriff’s return upon the execution is defective, when it appears by the judgment debtor's examination, that he has not been prejudiced by the defect complained of.
    The fact that the examination shows that the defendant holds the legal title to heavily incumbered real estate, out of which it is improbable that the execution can be collected in whole, or in part, is no reason foe refusing to appoint a receiver.
    Appeal from an order of the county judge of Otsego county, denying defendant’s motion to vacate an order appointing a receiver in proceedings supplementary to execution, and to vacate an order directing the defendant to be examined.

      Walter II. Bunn, for the appellant.

      Lowell S. Henry, for the respondents.
   Follett, J.:

Appeal from an order of the county judge of Otsego county, denying defendant’s motion to vacate an order appointing a receiver in proceedings supplementary to execution, and to vacate an order directing the defendant to be examined.

The defendant, in his affidavit of July 6,1886, swears that he was personally served with the orders for his examination and the affidavits upon which it was granted. Each affidavit states that an execution had been issued and returned wholly unsatisfied. The affidavits stated all of the facts necessary to give the county judge jurisdiction to grant the orders for the examination of the judgment debtor, who submitted to the examination and to the appointment of a receiver without raising the objection that the sheriff’s returns upon the executions were insufficient, in fact or form, to justify the granting of the examination orders, or the orders appointing a receiver. It seems that the judgment debtor did not suspect that he had property wherewith to pay the judgments, or that his rights were being infringed by the proceedings until he was called upon by the receiver to convey his interest in the farm, when he moved to vacate the orders because the sheriff’s returns failed to state that the defendant had not real estate out of which the executions could have been satisfied. These motions were made in the face of the judgment debtor’s examinations under the orders, wherein he testified that he had no personal property subject to execution, and no real estate except an undivided half interest in a farm of 300 acres, which he thought would sell for about ten dollars per acre (his interest for $1,500), which was subject to a mortgage for $1,200, with interest for about a year, and to the four judgments in these cases, amounting to $237.11.

When the affidavit states all the necessary facts to give the judge jurisdiction to grant an order for the judgment debtor’s examination, and he appears and submits to the examination and to the appointment' of a receiver without objection, it is too late to move to vacate the orders upon the ground that the sheriff’s return upon the execution is defective, when it appears by the jndgment debtor’s examination that he has not been prejudiced by the defect complained of.

In Marx v. Spaulding (35 Hun, 478 ; S. C., 16 Abb. N. C., 309 ; affirmed, 99 N. Y., 675), it appeared that the defect complained of was the act of the judgment creditor, and the motion to vacate the examination order was made promptly and before the examination was had. The Superior Court held, on a return precisely like the one considered in the case last cited, that the defect was not sufficient to vacate the order. (Forbes v. Spaulding. 20 J. & S., 166; S. C., 8 Civil Pro. R., 135.) This case must be regarded as overruled by the affirmance by the Court of Appeals of the decision of the Supreme Court in Marx v. Spaulding.

The fact that the examination showed that defendant held the legal title to heavily incumbered real estate, out of which it was improbable that the execution could have been collected in whole or in part, is no reason for refusing a receiver. (Fenton v. Flagg, 24 How., 499; Bailey v. Lane, 15 Abb., 373, note.)

The executions or returns in actions Nos. 2 and 3 are not con tained in the appeal book, and there is no evidence that the returns upon them were not, in all respects, sufficient.

The order refusing to vacate the order appointing a receiver, and refusing to vacate the examination order, is affirmed, in each of the cases, but the appeals having been conducted as one, the affirmance is with ten dollars costs and printing disbursements in Lathrop v. Herkimer. and without costs in the other cases.

Hardin, P. J., and .Boardman, J., concurred.

The order refusing to vacate the ordef appointing a receiver, and refusing to vacate the • execution, is affirmed in each .of the four cases, with ten dollars costs and disbursements in Lathrop v. Herkimer, and without costs in the other cases.


author: Follett, J.: Hardin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN M. SCHUYLER, Appellant.

      Evidence — when a physician, employed, by the county to attend, all the patients confined in a jail, may answer a hypothetical question as to the sandy of one of them on his trial for murder. ■ ,
    Upon the trial of the defendant for murder in the first degree, his sole defense was insanity. Upon the trial, Dr. Babitt, who was employed by the board of supervisors to treat such of the prisoners confined in the jail as required medical aid, was called and testified that he had examined and prescribed for the defendant several times between the date of the homicide, July 2, 1885, and December 1, 1885, while acting as jail physician, and that he regarded the defendant as his patient.
    In answer to a hypothetical question, put to him by the people, he testified that, in his opinion, the facts assumed by the question indicated sanity. The question did not assume the existence of any fact which related to defendant’s physical or mental condition, or conduct, while in jail; nor did it assume the existence of any fact which the witness could have learned while attending the defendant .in a professional capacity, but simply called upon ium to give his opinion, based exclusively on facts which were assumed to have occurred before the defendant was known to the witness.

      Held, that an objection to the admission of the evidence, upon the ground that it was incompetent under section 884 of the Cod¿ of Civil Procedure, was properly overruled.
    Another physician testified that he was appointed to act as jail physician in December, and continued to act as such down to the time of the trial; that he saw the defendant, as he did the others, whenever he needed it; that he assumed the obligation of attending to patients in the jail. -He was then asked and allowed, against the objection and exception of the defendant, to answer the same hypothetical question.

      Held, that, as the evidence did not show that the relation of physician and patient actually existed, the mere fact that the witness was the jail physician, charged with the duty of observing and treating this and all other prisoners, did not render his opinion incompetent.
    After the witness had answered the hypothetical question, he said that he did not think it possible for him to answer it without being influenced by the opinion formed while acting as defendant’s physician.

      I-Ield, that this did not render his testimony incompetent.
    That if it had appeared that the actual relation of physician and patient had, at some time, existed, and the witness had then exoressed a doubt about his ability to answer the hypothetical question without being influenced by privileged information, a debatable question would have been presented. (Per Follett, J.)
    Appeal from a judgment of the Court of Oyer and Terminer of Otsego county, convicting the defendant of the crime of murder in the first degree.

      Samuel S. EdicJc, for the appellant.

      Clarence L. Barber, for the people, respondent.
   Follett, J.:

Appeal from a judgment convicting the defendant of murder in the first degree. At the date of the Homicide the defendant, aged about twenty-seven years, occupied a dwelling-house at Morris, with his wife, aged twenty-three years, and their two children, Amy, aged about three years, and Lizzie, aged about eighteen months. The defendant was a barber and occupied a shop in the business part of the village, a little distance from his dwelling. Between one and two o’clock in the afternoon of July 2, 1885, he, went from his shop to his house for his dinner. While at dinner he and his wife engaged in a quarrel, during which he knocked her down with such force that blood flowed from ner head. Soon after she escaped into the door-yard, leaving the defendant and the two children in the house. The eldest child began to cry and the defendant stepped outside of the door and called upon his wife to return and care for the children, which she refused to do so long as he remained there. He replied that he would care for or kill the children (the witnesses do not precisely agree as to the words of this remark), entered the house and immediately returned carrying the eldest child by its ankles, its clothes hanging down over its head, and swung the child over his head, striking its head against a section of a log used as a chopping block which stood near the door. This blow was twice repeated — he striking in all three blows, which killed the child.

The defendant was indicted for murder in the first degree. Upon the trial the killing was conceded, and there was no material conflict in respect to the circumstances of the killing. Insanity was the defendant’s sole defense. From the date of the homicide. July 2, 1885, to the date of the trial, June 2, 1886, the defendant was confined in the jail of Otsego county. From July 2, 1885, to December 1, 1885, Doctor Otis H. Babbitt was employed by the board of supervisors to treat such of the prisoners confined in jail as required medical aid, and he was called the jail physician. From December 1, 1885, to the date of the trial, Doctor "Wilson T. Bassett was the jail physician. These physicians were sworn in behalf of the people, and, in answer to a hypothetical question, testified that, in their opinions, the facts assumed indicated sanity. It was objected, in behalf of defendant, that these physicians were incompetent, under section 83-1 of the Code of Civil Procedure, to answer this question, which was overruled

These rulings are chiefly relied upon by defendant’s counsel as grounds for a reversal of the judgment. In considering these rulings it is well to have the words of the section in mind. Sec. 831. A. person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act m that capacity.”

Doctor Babbitt testified that he examined and prescribed for the defendant several times while iail physician and regarded defendant as his patient. The hypothetical question did not call upon the witness * to disclose any information which he acquired in attending a patient in a professional capacity.” The question called for an opinion not for facts, and the answer disclosed no facts, nothing but an opinion. The question did not assume the existence of a fact which related to defendants physical or mental condition or conduct while in jail, nor did it assume the existence of any fact which the witness could have learned while attending the defendant in a professional capacity, but the witness was called upon to give his opinion, based exclusively on facts which were assumed to have occurred before defendant was known to the witness. It seems a work of supererogation to attempt to demonstrate that the question is not prohibited by the section quoted, unless it must be held, as a matter of law, that this witness was incapable of excluding from his consideration facts learned or opinions formed while attending the defendant, and giving an opinion founded exclusively upon assumed facts which might be deemed to relate to another person as well as to the defendant. The witness testified that he could exclude from consideration all information acquired in attending the defendant, and form and give an opinion upon the facts assumed, and this court cannot declare, as a question of law, that he coidd not.

Persons who have opinions in respect- to the guilt or innocence of a defendant, formed from reading or hearing accounts of the alleged crime, are competent to sit as jurors if it be established to the satisfaction of the court that they are capable of divesting themselves of the opinion so formed and of rendering an impartial verdict on the evidence. In the case of a juryman his opinions are not formed from personal observation, while in the case at hand the witness may have derived an opinion or impression from personal observation, and in this respect the questions are not analogous. But the defendant did not show, directly or inferentially, that the witness had formed an opinion, as to the sanity of the defendant, from information acquired while attending him, and the question "was not brought within the section. (Edington v. Ætna Life Ins. Co., 77 N. Y., 564-571.)

Doctor Wilson T. Bassett had been jail physician since December 1, 1885, and was when he testified. The following is the only evidence descriptive of the relations existing between the witness and the defendant.

Q. Are you the physician to the jail 2 A. I am ; was appointed last November and commenced my duties some time fore part of December, I think, and have continued as such from that time down to the present; I see to the defendant as I do to the others whenever he needs it; I assume obligation of attending to those patients m the jail; the defendant is one of them whenever he requires attendance; and that relation still exists.” This evidence was drawn out by the defendant upon which to found the objection that the witness was incompetent to testify under the section above quoted.

There is no evidence in the case that defendant was ill while Doctor Bassett was jail physician; nor does the evidence disclose that the doctor examined, spoke with or prescribed for the defendant, unless such facts and the consequent relation of physician and patient should be inferred from the evidence above quoted. It is a familiar rule, that when evidence is objected to upon the ground that the witness is incompetent to give the evidence, it must affirmatively appear that the witness is incompetent, and the burden of showing incompetency is upon tho objector. (Cary v. White, 59 N. Y., 339; Edington v. Ætna Life Ins. Co., 77 id., 5711 Steele v. Ward, 30 Hun, 560.)

Before information can be excluded under this statute, it must appear that it was such as the physician acquired in some way while professionally attending a patient; and it must also be such as was necessary to enable him to prescribe as a pliysician, or to do some act as a surgeon. It is not sufficient to authorize the exclu sion that the physician acquired the information while attending his patient; but it must be the necessary information mentioned. If the physician has acquired any information which was not necessary to enable him to prescribe, or to act as a surgeon, such information he can be compelled to disclose, although he acquired it while attending the patient; and before the exclusion is authorized, the facts must in some way appear upon which such exclusion can be justified.” (77 N. Y., 569.)

The fact that the witness was the jail physician, charged with the duty of observing and treating this, and all other prisoners, does not render his opinion incompetent unless it affirmatively appears that the relation of physician and patient actually existed, and that the information was acquired through, or for the purposes of that relation. The nominal relation of physician and patient, arising out of the legal duty of this physician, is not sufficient to exclude his opinions formed from his observations while such nominal relation only existed.

It will be observed that the witness did not give his opinion founded upon information acquired by him in any manner; but the opinion was founded solely upon a hypothetical question which assumed no facts which occurred subsequent to the day of the homicide. After the witness had answered the hypothetical question, he said that he did not think it possible for him to answer it without being influenced by the opinion formed while acting as defendant’s physician. Much stress is laid hy tire defendant upon this answer. If it had appeared that the actual relation of physician and patient had at some time existed, and the witness had tiren expressed a doubt about his ability to answer the hypothetical question without being influenced by privileged information, a debatable question would be presented. In Edington v. Ætna life Insurance Company (supra), a physician who attended the insured during 1862, and then ceased to attend him professionally, but frequently saw him from that time until 1871, when he died, was asked : (L) “ Was he cured when he left your hands ? (2.) In the month of May, 1867, in your opinion, was Wilbur E. Diefendorf (the insured), a man in good health and of sound body, and one who usually enjoyed good health ? (3.) Excluding any knowledge or information that you obtained while treating Diefendorf, and judging from his appearance from that time until 1867, what is your opinion as to whether he was a man in good health, of sound body, and a man who usually enjoyed good health % ” These questions were excluded at the trial, but were all held competent by the Court of Appeals. This case arose under the Revised Statutes, which is not different from the Code so far as the question under consideration is concerned. The third question above quoted calls for an opinion based upon information personally acquired by the witness, while the hypothetical question asked in this case removes the opinion asked for much further from the statute.

No error was committed m permitting Drs. Babbit and Bassett to answer the hypothetical questions or m refusing to strike out the answer of the latter. Many exceptions were taken by the defendant during the trial, but they are unimportant, and cannot be made plainer than by reading the evidence to which they relate. They are not discussed in the appellant’s brief, and do not require discussion by this court. The charge was full and clear, and the exceptions taken to it are without legal force. It is urged that the verdict is against the evidence. As before stated, the only defense was insanity. The defendant was but twenty-seven years of age, was born and has always resided in this State. It was not difficult to prove, with particularity, his history from birth. It was shown that when defendant was about nine years of age he was confined to the bed and house for a few days. The witnesses testified that they heard he had sunstroke. Ilis sister testified to a fight between other boys and the defendant when he was about seven years old, in which he was pounded with stones. She testified that afterwards he had boils, or bunches on his head. There is no evidence that he was cut or bruised in this affray, or that he suffered from any injury then received. It was testified that, from time to time, the defendant suffered from severe attacks of headache. It was proved that in June before the homicide defendant and one Fenton ran together upon a base-ball ground, cutting Fenton’s head, and hurting both, but leaving no marks on defendant. It is not claimed that the ordinary avocations of the defendant were interrupted by the accident. Aside from the sickness and the injuries referred to, there is no evidence that defendant was ever otherwise sick or injured. There is no evidence that defendant ever committed an insane or irrational act, or that he ever uttered an insane or irrational expression, except on the occasion of a fire he unnecessarily commenced to remove the blinds from a building. Upon a hypothetical question, which assumed as facts the matter above referred to, and other unimportant circumstances not unusual in human life, and upon the atrocity of the act, four physicians testified that, m their opinion, the defendant was insane when he killed the child; but four other physicians testified that, in their opinion, he was not. These witnesses examined the defendant during the trial, and none of them testified that they discovered evidences of then existing insanity. It may be said that any person who, from anger, so far loses self-control as to commit an act like the one for which the defendant was tried is insane, or not in liis right mind, but there is a broad distinction between such insanity and legal irresponsibility.

The judgment should be affirmed.

Boardman, J., concurred,

Hardin, P. J.:

I concur. People v. Murphy (101 N. Y., 126), does not aid the appellant. In that case the witness was allowed to give an opinion, founded upon what he observed, as to the physical condition of the woman, and upon her narration of the facts. Not so in this case.

Conviction and judgment of the Oyer and Terminer of Otsego county affirmed, and proceedings remitted to that court.


text:
    THOMAS D. STICHTER and Others, Respondents, v. BENJAMIN F. TILLINGHAST, Appellant.

      Order for the inspection of books and papers — when it may bepermitied after issue joined — what must be shown in the moving papers.

    An order permitting a party to inspect the hooks and accounts of his adversary may be made after issue joined, under article 4, title 6, chapter 8 of the Code of Civil Procedure, and for grounds other than those specified in the fourteenth rule of the Supreme Court.
    An application, after issue joined, must show that the discovery is sought, to aid the applicant to prove his cause of action or defense.
    An order permitting the plaintiff in this action to inspect the hooks and accounts of the defendant’s assignor, reversed upon the ground that the moving papers were insufficient to support it.
    Appeal from an order, granted at the Onondaga Special Term June S, 1886, requiring the appellant to produce and deposit certain books of account in the Cortland county clerk’s office, for examination and inspection of the plaintiffs, their attorneys and experts.
    The action is brought by the plaintiffs to recover possession of certain personal property which they allege in their complaint they sold and delivered to defendant’s assignor, who they allege was insolvent at the time of such sale and delivery, and fraudulently concealed his insolvency ; that thereafter the defendant came into possession of the same, and claims to hold the same, as assignee for the benefit of creditors.
    The application for the order appealed from was made after issue joined, and after the venue had been changed and the cause noticed for trial a-t the Cortland Circuit, and within a few days thereof. The petition was presented to a justice of the Fifth Judicial District, who granted an order to show cause herein, returnable at a Special Term to be held in and for Onondaga county, June 5, 1886. The defendant’s affidavits used to oppose this application state that the plaintiffs have been allowed to examine and inspect the books by their attorneys, whenever they have asked for the privilege, and have never been refused such examination and inspection.

      JB. T. Wright, for the appellant.

      Frank II. Hiscock, for the respondents.
   Follett, J.:

Appeal from an order permitting plaintiffs to inspect the books and accounts of defendant’s assignor. This order was applied for and granted after issue was joined, but it has-been twice held that a discovery may be had after issue joined, under article 4, title 6, chapter 8 of the Code of Civil Procedure, and for grounds other than those specified in the fourteenth rule of the Supreme Court. (Amsinck v. North, 2 Month. L. Bul., 67; affirmed, 62 How., 114; S. C., 12 N. Y. W. Dig.; 573; Babbitt v. Crampton, 1 N. Y. Civil Proc. R., 169; S. C., 12 N. Y. W. Dig., 13.)

An application after issue joined must show that the discovery is sought to aid the applicant to prove his cause of action, or his defense. (Douglas v. Delano, 20 N. Y. W. Dig., 85 ; Andrews v. Townshend, 2 N. Y. Civil Proc. R., 76; S. C., 16 J. & S., 162; The Shoe and Leather Reporter Assn. v. Bailey, 17 id., 385; Mott v. The Consumers' Ice Co., 52 How., 148; 2 Wait’s Pr., 531; Baylie’s Trial Pr., 120; Hare on Discovery [3d Am. ed.], 197. The General Term of the Supreme-Court, of the Superior Court, and of the Court of Common Pleas are in accord on this question.

This court held, in Adams v. Cavanaugh (37 Hun, 232), that a party cannot be examined under article 1, title 3, chapter 9 of the Code of Civil Procedure, except for the purpose of proving the applicant’s cause of action or defense. The papers upon which this order was granted do not show, or even allege, that the books will furnish evidence which will aid the plaintiffs to establish their cause of action. There seems to be no excuse in this case for the omission of definite allegations, as the plaintiffs’ counsel has been permitted to examine the books for two days, and defendant offered a further examination and to permit them to be examined by an expert, to be agreed upon by the parties. An examination under an order seems to be sought because defendant refused to permit an examination' by an expert unknown to him and not named by plaintiffs.

We think the allegations in the moving papers insufficient to support the order. The view taken of the merits of this appeal renders it unnecessary to consider whether Supreme Court Rule 37 was a bar to granting this order upon an order to show cause, returnable out of the judicial district in which the venue of the action was laid.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied;, with ten dollars costs, but withoxxt prejudice to the right of the plaintiffs to make a new application for discovery upon the payment of the costs.

Hardin, P. J., and Boardman, J., concurred.

Order x-eversed, with’ ten -dollars--costs and disbursements, and motion denied, with ten dollars costs, without prejudice to the right of a new application for discovex-y upon the payment of costs.


author: Follext, J.;

text:
    In the Matter of the Judicial Accounting of ARTHUR KEEF, Administrator, and SARAH E. KEEF, Administratrix of the Estate of RICHARD JERRITT, Deceased.

      Jurisdiction of. the Surrogate’s Court over the accounts of executors and administrators— it cannot adjudge that next of kin who have received assets shall pay debts incurred by the administrators — administrators will not be credited with payments, made ,by way of distribution to the next of kin, until ail debts and expenses of administration have been paid.

    Appeal iron, a decree of the Surrogate’s Court of Oswego ■ .county judicially settling the accounts of administrators.
    April 29, 1877, Kichard Jerritt died intestate, leaving two •daughters, Sarah E. Keef (wife of Arthur Keef) and Kutli Spencer (wife of Daniel Spencer), sole heirs-at-law and next of kin. May 5, 1877, letters of administration were granted to Arthur and Sarah K Keef. May 15, 1877, the personal property was inventoried. May 16, 1877, the daughters, by deeds of conveyance, divided between themselves all of the intestate’s real estate. The personal .property of the intestate amounted to about $1,000. Thereafter •this personal property was divided, and certain claims and demands .made against the several parties, in favor of and against the estate, •were settled by a written agreement, dated March 8, 1878, and .signed by them.
    March 8, 1878, the administrators gave Daniel Spencer a receipt •in full of all demands, and so did Sarah E. Keef; at the same time Mrs. Spencer and Mrs. Keef mutually exchanged receipts, and perhaps the administrators and Mrs. Spencer mutually' exchanged receipts, though this does not very elearly appear, nor are the terms .of the receipts given. Netween the date of this settlement and the ■date of this accounting the undivided property mentioned in '-•the agreement was divided between the sisters.

      In 1881 the administrators applied for a judicial settlement of their accounts, and citations were issued. Mrs. Spencer filed objections to the administrator’s account and the matter was referred, pursuant to section 2546 of the Code of Civil Procedure. Upon the coming in of the report it was referred again to the referee to make a further report. Upon the two reports the surrogate held that there was due Morris L. Wright, an attorney:
    For services rende'red to the administrators............ $504 00
    Due Andrew Coe. on a judgment for costs recovered by him in an action brought against him by the administrators ....................................... 344 17
    Due the administrators for commissions.............. 113 57
    Due the administrators for the amount paid by them to the referee and stenographer on this accounting..... 255 92
    $1,217 66
    The Surrogate’s Court found that there was no property in the hands of the administrators applicable to the payment of these claims. It was assumed that one-half of the estate, which was in the hands of Sarah E. Iieef, one of the administrators, was in her hands as next of kin, and not as an administrator, even as against the administrators’ creditors. Upon these.-.facts, so found, it was decreed that Arthur Iieef and Sarah E. Iieef pay to Morris L. Wright his claim, and also pay Andrew Coe his claim, and "that Wright and Coe have executions for their claims. The decree does not provide that Arthur and Sarah E. Iieef shall pay in their representative capacity, but that they shall pay, and executions shall run against them as individuals. The decree also provides that Ruth Spencer shall pay unto Arthur and Sarah E. Iieef, as individuals, $608.83, one-half of said sum of $1,217.66, and that Arthur and Sarah E. Reef, as individuals, have execution therefor.
    From this decree Ruth Spencer appeals, and asks this court to reverse it, upon two grounds: First. That the surrogate was without jurisdiction to make the decree. Second. That the decree is contrary to the evidence, because it appears that there were assets in the hands of the administrators.
    The court at General Term said: “The jurisdiction of the Surrogate’s Court is purely statutory. There is no statute conferring jurisdiction upon the Surrogate’s Court to adjudge that the next of kin, to whom the personal estate has been distributed, shall pay the debts incurred by the administrators. This decree directs Arthur Keef, individually, to whom no part of the estate has been distributed, and Sarah E. Keef, individually, to whom one-half of the estate has been distributed, to individually pay the claims.
    “ Nor is there any statute conferring authority upon the Surrogate’s Court to adjudge that Ruth Spencer pay to Arthur and Sarah E. Keef, as individuals, one-half of said claims; - nor do we think that the court had power to order Ruth Spencer to pay one-half of said claims to Arthur and Sarah E. Keef, in their representative capacity.
    “Administrators are not entitled to be credited for payments made by way of distribution to the next of kin until all debts and expenses of administration have been paid. The referee and surrogate have disregarded this principle and have allowed for payments made to, or property distributed among the next of kin before all debts or expenses of administration have been paid. And so it is found by the referee that “ there is nothing remaining in the hands of said administrators to pay outstanding claims against said estate or the expenses” in the report afterward mentioned. Hence, to correct the mistake made by the administrators, an unwarranted attempt is made to settle and readjust the affaii’s of the next of kin and compel them, or one of them, to disgorge assets received under the agreement of 1878, and pay a part thereof back to the administrators ; or, rather, to pay the same upon the debts and liabilities found existing against the estate.
    “ Notwithstanding the reference of the accounts under section 2546 of the Code, we are not prepared to say that a simple confirmation of the referee’s report by the surrogate- is a sufficient decision ■to answer the requirements of section 2545. Unless some authority can be found to the contrary, we think the safer practice would be for the surrogate to make'an independent decision, with findings of fact and law, accepting or rejecting the conclusions of the referee, as shall seem just. Exceptions can be filed to such findings and to subsequent refusals to find, or findings in settlement of case, as provided in section 2545.
    “ It follows that the decree of the surrogate must be wholly set aside and the proceedings must be remitted to the surrogate to make a decision, with findings of facts and conclusions of law —' that in such decision, and in the summary statement to be contained in the decree, the administrators should be charged with the "whole amount of assets which has come in their hands — that they should be credited with funeral expenses, expenses of administration, debts and accounts paid, any losses from the inventory from property therein included which did not belong to the intestate, and which • was delivered up by the administrators to the true owner and claimant.
    “ From the balance, as so ascertained, the order or decree, as well as the decision, should direct the administrators: First. To allow and credit to themselves the amount of their commissions to which they are by law entitled, as found and established by the surrogate. Second. That the administrators pay such debts of the estate and costs and expenses of administration as are found to be properly chargeable against the estate by the decision of the surrogate. Third. That the administrators pay over the rest, residue and remainder, after such payments aforesaid, in equal parts, to Sarah. E. Keef and Ruth Spencer, the only next of kin of said deceased. But as money or assets in excess of said amounts have already been received by said next of kin, under and in pursuance of agreements made between them, or between them or one of them and the administrators, let the decision find and the decree adjudge that such residue has been fully paid over to said next of kin, and to the extent thereof the administrators are exonerated and discharged from any further payments thereon.
    “ The*costs of this appeal should be chargeable against the estate in the hands of the administrators, under the second subdivision of the decision and findings, as above specified.”

      William G. Pouoher and G. G. Brown, for the contestant, appellant.

      M. L. Wright, for the administrator, respondent.
   Opinion by

Follext, J.;

Hardin, P. J., and Boardman, J., concurred.

Decree of the surrogate reversed, with costs to abide the final award of costs by the surrogate, and proceedings remitted to the surrogate for further proceedings, in accordance with opinion.