text:
    William H. Mandeville, Resp’t, v. Ellen K. Mackey et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Insurance — Assignment—Security for premiums.
    A person, who pays the premiums on a policy at the request of the insured, in order to prevent it from lapsing, and receives an assignment of said policy, has a lien for such payments on a paid-up policy, subsequently issued in place of the original policy and delivered to him.
    Appeal from a judgment in favor of plaintiff.

      Uriah W. Tompkins, for app’lts; Charles S. Cary, for resp’t.
   Ward, J.

— The defendant Alonzo F. Kent, in 1881, procured the defendant the Travellers’ Insurance Company, of Hartford, Conn., to issue to him a policy of insurance, which provided that in case of his death the company would pay to Maggie C., his wife, or, in the event of her death prior to his, to her sisters (defendants and appellants here (Lillie K. Bromley and Ellen K Mackay, the sum of $10,000, containing certain conditions, and providing for the payment of annual premiums. The policy further provided that after the payment of three or more annual premiums, if the policy should determine by reason of default in the payment of any subsequent premium, then, notwithstanding such default, the company would grant a “paid-up policy,” payable like the first, for as many tenth parts of the sum insured as there shall have been complete annual premiums paid thereof when the default in the payment of premiums shall have first been made; and all interest in the policy should be forfeited to the insurance company unless the first three premiums were paid. In the years 1882, 1883, and 1884 the respondent paid divers sums of money to the insurance company on account of the premiums due on the policy, which on the 24th of October, 1884, amounted in the aggregate to $455.33. Those premiums were paid by respondent at the request of Kent, he being unable to pay them, and for the purpose of keeping the policy alive and preventing its forfeiture, and but for such payments all interest in the policy would have become forfeited by the terms thereof. Prior to the payment by the respondent of the last quarterly payment of premiums required to be paid in order to complete the payment of the premiums for the three years, the said Kent, being unable to pay the same, requested the respondent to pay such premiums, and agreed with the respondent to assign and transfer such policy as security for the premiums paid as aforesaid, including the amount then to be paid; that, relying upon such agreement, the respondent did pay the sum of $109.07 as the last quarterly premium to complete the three years’ payment upon said policy, and thereby prevented its forfeiture. In pursuance of such agreement, on October 24, 1884, Kent and his wife executed and delivered to the respondent a written instrument, transferring and assigning to him the said policy of insurance, and all sums of money, interests, and benefits whatever that were then due or should thereafter arise under said policy, as collateral security for the payment of a note of $473.33, dated on that day, and signed by Kent, being the amount of premiums which had been paid, as aforesaid, by the respondent, and the small amount for rent of $18. Thereupon said assignment, together with the policy, was delivered to the respondent, and has been since held by him, a copy of which assignment was filed with the insurance company, and on the 15th of December, 1884,' Kent and wife requested the company to issue a paid-up policy in the place of the first-mentioned policy, for the sum of $3,000, which request was complied with by the company, and such paid-up policy was issued and delivered to the respondent; and has since been held by him as security for the payment of the money; and this action was brought by the plaintiff, now respondent, to have the said policy adjudged as duly assigned to him, and that he holds it as security, and that such security be enforced. In October, 1890, the wife, Maggie 0. Kent, died, and the appellants here, Mackay and Bromley, survive her. They paid no part of the premiums, never had the policy under their control, nor in their possession. No part of the premiums advanced has been repaid to the respondent. The appellants alone answer in the case. The trial court gave judgment for the plaintiff, deducting . the $18 rent, and ordered a sale of the policy upon proper notice, and the appellants appeal to this court from such judgment. The appellants seek to avail themselves of the benefit of the paid-up policy without paying what it cost the respondent to secure it. But for the interposition of the respondent, and the advances he made in payment of the premiums, there would have been no valid policy now in existence, and no claim would exist in favor of any one against the insurance company. In good faith the respondent paid the premiums before the assignment to him, at the request of Alonzo F. Kent, and upon the express agreement that the policy should be assigned to the respondent as security to cover all -the premiums paid by the respondent. The assignment of the policy, with the request that the paid-up one issue and be delivered to the respondent for bis security, was in pursuance of' this agreement. The paid-up policy was in fact never delivered to Kent or his wife, but to the respondent, pursuant to the assignment. It went to him as a result of his payments, which saved the old policy and made the new one possible, so that the respondent’s claim was a charge upon the new policy in its very inception, which could not be divested except by the payment of that claim. There was therefore no such delivery of the paid-up policy to the respondent or to Kent as inured to the benefit of the contingent beneficiaries as would allow them to take the policy discharged of the respondentent’s claim, nor can it be said that the delivery of the original policy to Kent vested a right m the appellants to hold the fruits of it against the respondent’s equity, nor was any trust ever created in favor of the contingent beneficiaries (the appellants) except such as may possibly exist in the balance of the policy, if any remains, after the payment of the respondent’s claim. The broadest ancf clearest equity sustains the respondent, to which the appellants must submit.

• The judgment should be affirmed, with costs of the appeal to be paid by the appellants.

All concur.


source: Caselaw Access Project

author: Ward, J.

license: Public Domain

text:
    Edward B. Moore, Resp't, v. Isaac A. Cooley, App’lt.

      supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Trespass — Proof.
    Where, in an action against an adjoining owner for cutting trees alleged to be on plaintiS’s land, the redord of proceedings to lay out a highway, offered by defendant for the purpose of showing that the land where the trees grew was a public highway, does not also show that the trees cut were on defendant's side of the highway, such record is immaterial.
    Appeal from a judgment in favor of plaintiff.

      Frank II. Robinson, for app’lt; A. M. Burrell for resp’t.
   Ward, J.

— This was an action for cutting three butternuttrees. The trees was so near the farm line of adjoining owners that a close contest arose as to whether the trees were on the plaintiff’s or defendant’s side. The jury found for the plaintiff, and the damages were trebled. The parties claimed under a common source of title, commencing in 1813. The premises were in the town of Oanisteo, Steuben county, and the interests of the parties diverged, and they took separate parcels of land in 1815. The chief exceptions by the defendant were:

First, that the court admitted a surveyor’s bill which was fairly identified as made for one of the plaintiff's grantors by a surveyor, -dated as made in 1815, surveying the line in controversy. This paper came from the proper custody, and was received as an ancient document proving itself. We think the objection was untenable.

The second, in refusing to receive, upon defendant’s offer, an application to lay out a highway, and the record of the laying out •of the highway. The application was signed byPeter Tice, the defendant’s grantor, who was in possession of the defendant’s premises, and asked that a highway be laid out on the line between the land that the plaintiff now owns and the defendant’s. This application was dated in 1830. A survey was made of the road for the highway by the highway commissioners, and that survey purported to locate the center of the road on the line between the parties. The proceedings were all in 1830, and the papers came in due form from the town clerk’s office. This evidence, as •claimed by the defendant, was offered for the purpose of showing that the land where the trees grew was a public highway. This was immaterial. Had the offer been to show that the line located by the highway put the trees on the defendant’s side, then a .serious question would be presented; for it might be said that a road laid out so long ago, when the point was to locate it on the« line between the parties, and all the men interested in the property, on both sides, at the time, having had notice of it, and it. being done at the instance of the defendant’s grantor, in part, the survey thus made would be an ancient document of considerable-force to fix the fact as to where the true line was.

All concur, except Dwight, P. J., not voting.


text:
    John Mullen, as Administrator, etc., App’lt, v. James Guinn, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Executors — Liability for costs.
    Where an action is brought in the name of an administrator to recover-as such upon a cause of action that arose after the death of the decedent, the plaintiff is personally liable for costs if he is defeated in the action.
    2. Same — Section 3246 of the Code.
    Section 3246 of the Code has application only to cases where the cause-of action arose-in favor of the deceased, and not to causes of action irn L favor of the executors or administrators personally.
    Appeal from an order, directing that judgment be entered personally for the amount of a verdict in favor of defendant.

      Frank H. Robinson, for app’lt; L. C. Van Fleet, for resp’t.
   Ward, J.

— The plaintiff, as administrator, instituted an action-in this court, and the complaint contained two causes of action,, one for services rendered by the decedent for the defendant, and the other to recover for some personal property that had been taken by the defendant from the administrator after the death of the decedent, and which had been his property; the plaintiff' waiving the tort, and seeking to recover upon the implied contract for its value. This was the second cause of action. The defendant answered by certain denials, and alleged counterclaims to both causes of action ; the counterclaim alleged to the second cause being that the defendant, after the death of the decedent, and before the commencement of the action, had paid funeral expenses of the deceased, who was his father, to the amount of $90, for which he demanded judgment.

The cause was tried at the Steuben circuit, in April, 1894, and upon the trial the plaintiff was nonsuited as to the first cause of action. As to the second cause of action, the court held that the evidence was sufficient to establish a portion of the plaintiff’s claim, and to the amount of $47.50; that thereupon the plaintiff admitted in open court that the defendant had paid the funeral expenses of the deceased to the amount of $90. The defendant gave no evidence whatever, and the court passed upon the whole question as one of law, and holding that the fumerai expenses paid by the defendant were a proper counterclaim to the second-cause of action, and deducted the $47.50 from the $90 funeral expenses, and directed a verdict in favor of the defendant for $42.50-The affidavit of the defendant’s attorney discloses that on the 7fh day of May, 1894, the defendant entered judgment against the-plaintiff, personally, for $42.50 damages, and $104.55 costs, and an execution was issued thereon, and in Jnly following a motion, was made at the Rochester special term, by the plaintiff, to set-aside the judgment, and the parties upon the hearing of the motion stipulated that the judgment be set aside without prejudice to the rights of the defendant to move for the order here appealed from, with the right to the plaintiff to raise any question of lacheswhich might exist as to the making of such motion.

The plaintiff now contends, first, that the defendant has been guilty of such delay and loches in making this motion as deprive him of the right tb the order he has obtained. We think the papers before us sufficiently excuse the delay.

The appellant also contends that the motion should not have been entertained by the special term, without the certificate of the judge presiding at the trial, setting forth the facts and what, took place upon the trial, and that affidavits alone were not sufficient. We cannot sustain this contention, because the affidavits-set forth clearly and without dispute what occurred upon the trial, and the pleadings before us show that the second cause of action was one arising after the death of the intestate, and was for a. cause that accrued to the plaintiff individually, and not as administrator, and it has been settled by a long line of cases that where-an action is brought in the name of an administrator, and claiming to recover as such upon a cause of action, that arose after the death of the decedent, though concerning the property of the decedent, it is a cause of action in favor of the plaintiff individually, and he is liable for costs if he is defeated in the action (Buckland v. Gallup, 105 N. Y. 458; 8 St. Rep. 56; Thompson v. Whit-marsh, 100 N. Y. 35; Holdridge v. Scott, 1 Lans. 303; Ketchum v. Ketchum, 4 Cow. 87; Lyon v. Marshall, 11 Barb. 241; Hees v. Nellis, 65 id. 440; Ackley v. Ackley, 50 St. Rep. 544, and cases cited); and judgment for costs may be entered in clear cases without application to the court (cases above cited).

Application was made by the defendant, to the judge granting this motion, for a certificate, he being the same judge who presided at the trial, and was refused, upon the ground that, as the liability for costs clearly appeared from the papers presented, the certificate was unnecessary. The affidavits on the part of the plaintiff disclose that the action was brought in good faith, and under section 3246, Code Civ. Proc., which provides that in an action brought by or against an administrator or executor in his representative capacity costs must be awarded as in an action by or against a person prosecuting or defending in his own right, except, as otherwise prescribed in sections 1835, 1836, “but they are exclusively chargeable upon and collectible from the estate, fund or person represented unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action.” The plaintiff claims that he cannot be made personally liable for costs unless he has been guilty of bad faith ór mismanagement. This would probably be so i£ his case came within this section. We conclude that this section has application only to cases where the cause of action arose in favor of the deceased, and not to causes of action in favor of executors or administrators personally.

The practice of obtaining leave of the court, by motion, to enter personal judgments of this kind has been sanctioned by the courts, although in many cases unnecessary. Tilton v. Williams, 11 Johns. 403 ; Reynolds v. Collins, 3 Hill, 441; Barker v. Barker, 5 Cow. 267; Burhans v. Blanchard, 1 Denio, 626; Bostwick v. Brown, 15 Hun, 308. In Tilton v. Williams, supra, and Barker v. Barker, supra, the declarations contained several counts, some alleging a cause of action arising in the lifetime of the decedent, and others ¿afterwards, and the plaintiff was, held personally liable for costs on .account of his failure to recover upon the causes of action arising after the appointment of the plaintiff as personal representative. The Code permits, indeed encourages, the joinder of causes of action in certain cases, but each cause has all the elements and attributes of an independent cause of action. This scheme of the -Code finds strong confirmation in section 3235, providing as to •costs where a plaintiff succeeds upon one cause of action and a defendant upon another; and in disposing of the question raised by this appeal we treat this second cause of action and all its incidents the same as if it were the only one alleged in the complaint ••and disposed of at the trial.

The appellant also contents that the trial court was not justified in directing a verdict for the defendant for the funeral expenses, ¿after deducting the amount found due the plaintiff on the second cause of action, as it was not a proper counterclaim, and therfore it was error for the court to make the order appealed from, directing that a judgment be entered against the plaintiff, personally, for the balance of such funeral expenses. If there was error in that regard it cannot be considered here, and can only be reached upon an appeal from the judgment, and in a direct proceeding ¿authorized by law to correct this error. We take the verdict as we find it, and assume it to be correct upon this appeal.

The trial court held that the sum of $42.50, which remained -due the defendant after the sum of $47.50 found in favor of the plaintiff upon his personal cause of action, had been absorbed by the defendant’s counterclaim, was a claim against the plaintiff individually and as we understand the papers, directed a verdict against him individually for that amount. There was no error, therefore, in the order appealed from providing that the amount of the verdict together with the costs should be charged against the plaintiff personally.

The order appealed from should be affirmed, with ten dollars costs, and the proper disbursements of the respondent upon the ¡appeal.

All concur.


text:
    In the Matter of Judicial Settlement of the Accounts of Margaret Callister et al., as Administrators of John Callister, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Husband and wine — Separate property.
    An agreement between a man and woman, who afterwards intermarry, for services to be rendered by her, is not property within section 1, chap. 200 of 1848, but is merged in the subsequent marriage contract.
    3. Witness — Section 829 op Code.
    A note executed by a decedent, when offered in evidence by the next of kin in a proceeding against his estate, is not testimony of the decedant within the meaning of section 820 of the Code, so as to permit the claimant to testify as to the consideration of the note.
    3. Evidence — Presumption.
    The giving of a check by an administrator to a debtor of his intestate does not create a presumption that the debt to intestate has been paid.
    Appeal from a decree, entered upon the judicial settlement of accounts.
    Margaret Callister is the widow of the deceased, and the daughter of Robert Walker, deceased. She is the administratrix of the estate of Walker, as well as an administratrix of the estate of Callister. She married Mr. Callister in May, 1857, and he died in April, 1888. Upon the accounting before the surrogate of the estate of Callister, she presented, as administratrix of Walker, a ■claim against the Callister estate for $2,000 for money loaned by Walker to Callister, and for thirty dollars interest received by Callister upon a mortgage belonging to Walker. She also presented an individual claim, to the effect that about one year proceeding her marriage with Callister (who was a practicing lawye'r) she entered into a contract with him to act as copyist and clerk in his law office, for which he agreed to pay her at the rate* of $500 per year, the employment to continue as long as he practiced law, payment not to be made until he retired from practice; that from the time of her contract until the time of his death she served continuously for him as such clerk and copyist, and had only received as compensation therefore the sum of five dollars, which was paid by deceased after the marriage, thereby recognizing the contract; and that Callister practiced law until the time of his death. The next of kin of John Callister disputed these claims, and the matter was referred by the surrogate to a referee, who took proof, and found in favor of Mrs. Callister, the •claimant, upon a note of $1,200 and interest which she held against her husband ; and found against her on her claim for services, upon the ground that her contract for service was merged in her marriage ; and rejected the claim in favor of the Walker estate, upon the ground that Mrs. Callister, as the administratrix of Walker, had given a check for $120 to some bankers, payable to the order of John Callister, that had been indorsed by him and bore the mark of a canceling hammer. No explanation was given as to the check, its consideration, or the purpose for which it was given. The next of kin required the claimant to produce before the referee the $1,200 note above referred to, and she did produce-it, and the next of kin presented it in evidence as the note of Callister, without objection. To rebut the"presumption created by that note, as against the individual claim of Mrs. Callister, she was-offered as a witness in her own behalf to explain the consideration of the note, and the circumstances under which it was given, which involved a personal transaction with the deceased husband. The-next of kin objected, because it was such a transaction, and the-evidence was prohibited by section 827, Code Civ. Proc. The objection was overruled, and the next of kin excepted, and the evidence was received. The referee’s report, and the evidence accompanying it, was submitted to the surrogate, and that officer sustained the finding of the referee as to the claim of the estate of Walker, upon the same grounds as assumed by the referee, but rejected his conclusions as to the claim for clerical services, ancE decreed that the claimant should recover it, amounting with interest to about $22,000, and should also recover the amount of the $1,200 promissory note and interest. The referee and surrogate both found the contract between Mrs. Callister and her husband: as claimed by her and above set forth, and also that the $2,000' loan had been made by Walker to Callister, upon which Callister had paid $1,000, and the $30 of interest on the mortgage had been received by him, and that the real consideration of the $1,200 note was for money which had been given the claimant by her husband,, and which had been accumulated for the purpose of buying oil paintings. The next of kin appealed from the decree allowing the claim of Mrs. Callister ; the administratrix of Walker appeals-from that portion of the decree rejecting the claim of the Walker estate ; and the two appeals were heard together.

      James C. Smith, for app’lt, Margaret Callister; W. A. Sutherland, for app’lts next of kin of John Callister, deceased.
   Ward, J.

— At common law the husband was absolutely entitled to the services of his wife, and to all that should be acquired by such services. During the period covered by the contract of Mrs. Callister and her service for her husband, the enabling acts for the benefit of married women had not deprived the husband of the common law right to his wife’s services. Blaechinska v. Howard Mission, 130 N. Y. 497; 42 St Rep. 387 ; Porter v. Dunn, 131 N. Y. 314; 43 St. Rep. 193; Hendricks v. Isaacs, 117 N. Y. 411; 27 St Rep. 449 ; Bertles v. Nunan, 92 N. Y. 160 ; Whitaker v. Whitaker, 52 id. 371. In the case first cited, at page 502, 130 N. Y., where the question arose whether a married woman working for her husband on a weekly salary as seamstress was entitled to the salary, the court say : “The enabling statutes do not relieve a wife of the duty of rendering services to her husband. While they give her the benefit of what she earns, under her own contracts, by labor performed for anyone except her husband, her common law duty to him remains; and if he promises to pay her for working for him, it is a promise to pay for that which legally belongs to him. The fact that he cannot require her to perform services for him outside of the household does not affect thequestian, for he could not require it at common law. Such services as ■she does render him, whether within or without the strict line of •her duty, belong to him. If he pays her for them, it is a gift If he promises to pay her by a certain sum for them, it is a promise to make her a gift of that sum. She can not enforce such a promise by a suit against him.” In the last case cited, which was an action upon a note given by the husband to the wife for services ¡rendered by her outside of the household and upon a farm, Judge Peokham, at page 371, says: “If a wife can be said to be entitled to higher consideration or compensation because she labors in the field instead of in her household, which I do not perceive and cannot admit, the law makes no such distinction. It never has recognized the right to compensation from her husband on account of the peculiar character of her services.”

The learned counsel for the claimant, Mrs. Callister, predicates his claim to recover for her services to her husband upon chapter 200, section 1, of the Laws of 1848, which provides that, “The real and personal property of any female who may hereafter marry, and which she shall own at the time of her marriage, and the rents, issues and profits thereof shall not be subject to the disposal of her husband nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.” And his contention is that the plaintiff's contract with Mr. Callister, having been entered into before her marriage, was a chose in action, and therefore “property," and, being property, was saved to her by the statute, and was not merged in the marriage contract. It must be conceded that this was not an ordinary business contract concerning property. It was an extraordinary one, and one which seemed to contemplate an uninterrupted business relation during the professional life of Mr. Callister, It was in the power of these parties at any time to do away with or modify this contract, or form any relation which at law would destroy the contract. A year after this contract was made, an event occurred, which we ■assume was not in contemplation of the parties when the contract was made, that so changed the relation of the parties to each other that the servant became the wife and the master the husband. ‘This changed relation was inconsistent with the contract of exclusive service in clerical work, because at law the service of the wife belonged to the husband and took on a domestic character. The wife, after marriage, was not obliged to work for the husband, outside of her legitimate domestic duties. He could not compel her to work on the farm or continue the clerical work in his office, nor could she demand of him a “salary as clerk. She had a higher •demand upon him. He was now to support her, and to supply her with all things appropriate to his means and his station in life as his wife, and not as his servant. This changed relation, then, ■of necessity abrogated the contract. If the wife chose to continue the clerical work after the marriage; she must be content with the new advantages which the marriage brought to her as her compensation for that work. As we have seen by the cases cited, if she -choose to perform work for her husband outside of her domestic duties, she cannot recover for her services of her husband, although he has contracted to pay them. We are off the opinion that it was not within the contemplation of the statute of 1848 to preserve a contract of this character from the effect of the marriage. The contract was merged in the marriage, and the claimant can only recover for that portion of the clerical work, at the stipulated rate, performed before the marriage.

It was error to admit the evidence of the claimant as to the personal transaction between herself and her husband which resulted in his executing to her the note of $1,200. The note was produced upon the reference, upon the request of the next of kin, by the claimant, and it was received in evidence without objection. When thus proved, the presumption arose that all prior obligations of the deceased to the claimant had been adjusted and settled, and the note represented the sum total of what, was due the claimant, As such it was most important evidence. To break the force of this presumption, the claimant was sworn, over the objection that her evidence was prohibited by section 829 of the Code of Civil Procedure, and she testified as to the consideration of this note,, which if credited overthrew the presumption. The claimant could only give this testimony, under section 829, when the “testimony of the deceased had been given in evidence concerning the same transaction.” This had not occurred, unless, as claimed by the claimant’s counsel, in calling for the production of this note and producing it in evidence the next of kin had given such “ testimony in evidence.” This note was in no sense thet estimony of the deceased. If the note had been brought into court by asubpcena. and the signature of the deceased proved in the ordinary way, and has; been shown in the possession of the claimant, it would have established the delivery of the note, and been evidence of the contract between the parties, which raised the presumption referred to. The claimant could not go into the personal transactions behind1 the note, and out of which it arose, any more than in the case of a bond, a mortgage, or any other written agreement between the parties. The production of this note by the claimant, and the admission of the signature of the deceased, or allowing it to be read in evidence without the proof of signature, was simply a waiver on the part of the claimant of the proof of the signature and of the delivery of the note to her, which otherwise the next of kin would Have been compelled to established. If this ruling is-sustained, then in all cases the evidence created by a writing between the living and the dead may be overthrown by the evidence of the living as to the transaction out of which the writing was created, while the lips of the other party to the transaction are-closed, thus defeating the wise purpose of section 829. The question is asked in some of the cases, what the Code means by the “testimony and evidence” of the deceased. This provision was probably incorporated in section 829 to meet a condition which appeared in Potts v. Mayer, 86 N. Y. S02. Where the evidence of a deceased person that had been given upon a former trial of the same-action was read in evidence, the living party to the transaction was permitted to testify as to the same transaction, which the court, sanctioned in that case. The surrogate having found as a fact the loan of the $2,000 from Walker to Callister, and the receipt by Callister of the interest money upon Walker’s mortgage, and that there had been paid upon this note $1,000, the balance unpaid and interest is a valid charge against the estate of Callister, unless the next of kin are-right in their contention that the check of $120 given by Mrs. Callister, as administratrix of Walker, to John Callister created a presumption that destroyed this claim. Had Mrs. Callister given her individual check, it would not be claimed that such check would1 have had the effect stated. The presumption is only created, if at. all, by the fact that she signed it as administratrix of Walker. It-is well settled that an .administrator cannot bind an estate by executing a note, check, or other negotiable instrument as administrator. If he assumes to do so, it is his individual act, and he is-personally responsible. Buckland v. Gallup, 40 Hun, 61; Bingham v. Marine Nat. Bank, 41 id. 377; 2 St. Rep. 638; D., L. & W. R. R. Co. v. Gilbert, 44 Hun, 201; 8 St. Rep. 215; Thompson v. Whit-marsh, 100 N. Y. 35; Schmiitler v. Simon, 101 id. 554. The rejection by 'the surrogate of this claim was error. The decree of the surrogate should be reversed, and the proceedings remitted to the-surrogate’s court of Ontario county to proceed therewith, costs to-all the parties to this appeal to be paid out of the estate of John. Callister.

All concur.


text:
    William C. Bryant, as Executor, etc., App’lt, v. Sarah A. Gay et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Evidence — Burden.
    A party, who seeks to impeach an account rendered pursuant to an order-obtained by him, has the burden of proof.
    Appeal from a judgment dismissing the complaint

      Martin Clark, for app’lt; George Wadsworth, for resp’ts.
   Ward, J.

— Joseph 1ST. Tift died on the 22d day of April, 18731 Previous to and at the time of his death, he was one of a firm carrying on business in Buffalo, manufacturing steam engines and boilers, under the firm name of George W. Tift, Sons & Co. The-other members of the firm were George W. Tift, John Y. Tift, Clarence L. Whiting, C. F. Gay, Mary A. Plimpton, and one share held by G. W. Tift in trust for Lewis Whiting Gay. There were fourteen shares, in all, in the concern. Joseph N. Tift was the owner of two and a half shares. The members of the firm were closely related, and no difficulty seems to have occurred prior to-the death of Joseph. Joseph left a last will and testament, which was duly admitted to probate, and John Y. Tift and the plaintiff' were named as executors. On the 1st day of May, 1873, the survivors of this firm, together with Sarah A. Gay, organized a new one under the same name, which took possession of the assets of the old firm, and carried on the business. While the old firm was in existence, and in July, 1868, John Y., and George W. Tift, Whiting, and C." F. Gay, with four other parties, organized in Buffalo a joint-stock association, under the laws of the state of New York, named the Plimpton Fireproof Elevating Company, the capital stock of which was $300,000. Joseph subscribed for 42,000 of the stock, and was a director in the association up to the time of his death. This association erected and operated a fireproof elevator in Buffalo, which was completed and .ready for business in 1869. The old firm of G. W. Tift, Sons &. Co., furnished a large part of the material and means for the construction •of this elevator. On October 30, 1869, the association mortgaged the property to secure the payment of $200,000. Joseph joined in the mortgage. The association had some real estate in Buffalo. 'The value of the elevator at the time of the death of Joseph, as found by the referee, was $255,000. The referee also found that <at that time the association was indebted to the firm, on open account, in the sum of $36,122.35, and on promissory notes in the •sum of $200,000. The firm held stock in the association, the par value of which was $170,000, which account, notes, and stock were a part of the assets of the firm at the time of the death of •Joseph. In July, 1873, George W. and John Y. Tift and others •organized a corporation, under the laws of the state of New York, under the title of the Tift Fireproof Elevating Company, and the Plimpton Fireproof Elevating Company conveyed its real estate, including its elevator, to this corporation. The consideration for ■such conveyance, recited in the deed thereof, was $190,000. No money was in fact paid, but for this amount the Tift Fireproof Elevating Company issued to the stockholders of the Plimpton ■Company 1,900 shares of its stock, of the par value of $100 per share, and on the same day the Plimpton Company executed and •delivered to George W. and John V. Tift, and Charles L. Whiting, Charles C. Gay, and Mary A. Plimpton, a mortgage on said «levator property, conditioned for the payment of $237,542.10, of which $200,000 was to secure the payment of the notes made by the Plimpton Company, and held by the survivors of the old firm ■of G. W. Tift, Sons & Co., and the balance to secure an account •owing by the Plimpton Company to the firm. These facts the referee finds, and that the transactions were in entire good faith, and to the best interests of all concerned.

This action was commenced in 1880, and was brought against the survivors of the old firm and Sarah A. Gay, and the personal representatives of such of those survivors as had died, for an ac•counting of and concerning the property and effects of the old firm, and the disposition thereof by the survivors, and the profits •made by them out of the assets of the firm, and demanded judgment in favor of the plaintiff for a large amount. The defendants answered, denying liability, and the issues were referred to a referee to hear, try, and determine. The referee entered upon the trial, and discovering that an accounting by the defendants was •essential to the proper determination of the case, and upon the application of the plaintiff, asking that an account be rendered of the affairs of the firm since the death of Joseph N. Tift, and thp assets of the firm (the defendants being heard in opposition), ordered that the defendants render an account in the action, which should embrace a full and itemized statement of the property, liabilities, and uncompleted contracts which were of the old firm upon the death of Joseph, and a full statement of the transactions of the new firm to the date of the accounting, and of the present assets of the new firm as it then existed, which order was made on the 21st of March, 1885. The defendants, in pursuance of this order, made a very full and elaborate accounting, under oath, as required. This accounting was submitted to the referee and parties, and the plaintiff took certain exceptions thereto, among which was to an item of $112,000 specified in the account, and required a detailed statement thereof, which was duly rendered, and made a part of the original accounting. Afterwards, and on the 3d day of August, 1887, the parties, by its attorneys, stipulated as to the issues of fact to be tried by the referee, and the stipulation recited as follows:

“To expedite the trial of this action, we stipulate and agree that the only issues of fact to be hereafter tried and decided are as hereinafter stated, and all other issues of fact, charges against, and objections to the account rendered by, the defendants impleaded, except questions of law arising upon said account, „are hereby waived and abandoned, except as hereinafter stated.”

Then follow the issues, seven in number, covering the questions, mainly, which will be hereafter discussed. The parties proceeded to give evidence; the plaintiff insisting that the defendants be required to proceed with their proof upon the trial, on the ground that the burden rested upon the defendants. This motion was denied by the referee, and the plaintiff excepted. The proof that was given very largely related to the Plimpton Elevator, and its value. The account, as rendered, seems to have been treated as evidence by the court and counsel upon the trial. In the account, as rendered, which covered 316 pages of printed matter, there was an inventory of the assets of the old firm, as of May 1, 1873, eight days after the death of Joseph. The inventory contains a table, first of nominal values, and then of actual values, and also of liabilities. The value of nominal assets is stated at $605,658.74; the actual value of the assets and property, $135,862.42; liabilities, $386,878.97; nominal surplus, $218,779.77; actual deficiency, $251,016.49. In this table the nominal value of the Plimpton accounts, notes, and stock of the old firm is put at $407,122.35. The actual value of the property embraced in this item is not given, but the accounts, notes, and stock are treated as vauleless.

The referee found, as a fact, that at the time of the death of Joseph the value of the assets of the old firm was $135,862.48, and that the liabilities were $386,878.97, and-that the firm was insolvent, and that the excess of liabilities over assets of the old firm, being $251,016.49, had been paid by the members of the new firm out of their private and individual means, and not mt of the assets or property of the firm; that the actual value of the assets and property of the old firm was as specified in the inventory, and not the nominal value, as therein stated ; that the Plimpton Elevating-Company, at the time of the death of Joseph, was insolvent, having a total indebtedness of $159,867.43, in addition to the indebtedness owing to tlie old firm on accounts and notes, above given, of $236,122.35. The referee found that the interests of the firm in the Plimpton Fireproof Company were of little or no value. The referee fo’und that in March, 1879, the Tift Fireproof Elevating Company sold its real estate, including its fireproof elevator (the Plimpton Elevator), for $255,000, and that in making such sale the new firm acted in entire good faith, and that that sum was the best price that could be obtained for the property. The referee also found the several issues set forth in the stipulation in favor of the defendants; that they had made diligent efforts, and in good faith, to realize as much as possible from the claims held by the old firm against the Plimpton Elevating Company, and to realize as much as they could, and did realize, in fact, as much as they possibly could, out of and from all the assets and properties of the said old firm; that they had fully, fairly, and completely accounted in this action for all the assets and properties of the said old firm ; and, in effect, that the survivors and the defendants, in all their transactions with the partnership property, had acted in good faith, and in the best interests of all concerned. The effect of the accounting and the referee’s conclusions were that nothing remained to the estate of Joseph, either out of the original assets of the old firm, or out of any accretions or profits that had resulted from the use of the partnership property by the survivors, and therefore the complaint should be dismissed, with costs against the estate of Joseph. The plaintiff attacks these conclusions, arid asks for a reversal of the judgment because the referee was not warranted in his conclusions of fact from the evidence; that, as the referee had found, there was no accounting by the defendants until made in the present action; that the business had been continued by the survivors a great length of time, and new enterprises had been engaged in with the property of the old firm; that as the survivors (being, in a sense, trustees for the estate 'of Joseph) had wrongfully commingled the funds of the old firm with other enterprises in which they were interested, either as stockholders or personally, they should be held to a rigid rule of accountability, and, from all the evidence, it was apparent that their accounting was not reliable, and that the claims set forth in the complaint were established.

The plaintiff contends that the nominal value of the property in the inventory should be charged upon the defendants, as they had not, by proper explanatory evidence, shown that the actual value of the property, as stated by them in the inventory, was the true value, and that the referee should have found with him upon this question, as a matter of law. We cannot sustain this contention, as the referee had the right to consider the whole evidence as to the value of the inventoried property; he had the right to take into account all the proofs as to the value of the interests of the old firm in the Plimpton Elevator property, which constituted the chief assets of that firm. Both sides gave proof as to the value of that elevator property. The tendency of the plaintiff’s proof was that it was worth the nominal value stated in the inventory, while the defendants’ proof, showing the use of the property and its value, brought the property down to a much lower valuation. Besides, the plaintiff relies upon the account of the defendants to show the nominal value of this property, and of the other properties of the old firm stated in the inventory. The defendants are also entitled to the benefit of their statement in the inventory as to its actual value, in connection with the statement as to the nominal value; and, from a review of the evidence, we do not differ from the referee’s conclusions as to the value of the property.

The plaintiff seeks to charge the defendants with the amount of the consideration mentioned in the deed from the Plimpton Association to the Tift Bireproof Elevating Company, of $190,-000; but in view of the fact that the company (the Plimpton Company) received nothing but shares of stock in the Tift Company at par value, and that this was not an individual transaction, but between an association and a corporation, and the property received by the corporation for the shares so issued to the Plimpton Association was of little, if any value, this contention also falls.

The plaintiff also contends that the point was well taken before the referee that notwithstanding the accounting that had been insisted upon by him, and obtained, the burden, upon the trial of the stipulated issues, still remained with the defendants, and that it was for them to show by further and more conclusive proof the good faith and propriety of their actions, and that nothing remained to the estate of Joseph in their hands. The plaintiff had waived, by his stipulation, all objections to the accounts of the defendants, except such questions of law as might arise. He had brought the defendants into court, charged in the complaint with dereliction of duty as survivors, with regard to the property of the old firm, and that there remained in the hands of the defendants property of the estate, for which judgment should be given to the plaintiff. He had forced an accounting by the defendants, and he cannot now object that the order made by the referee for such accounting was irregular, or that it had not all the force of an order made by the court. While the burden was thrown upon the defendants to make the account, in a proper sense, still, when it was made, the burden shifted, and fell upon the plaintiff to attack .that account, and remained with him to the end to establish the cause of action set forth in his complaint. The referee was therefore right in his ruling upon-this subject.

The appellants concedes that the debts of the old company were the' amount stated in the inventory, of nearly $400,000. There seems to be abundant evidence to sustain the conclusions of the referee that the value of the assets of the old firm was about $131,000. This large difference against the old firm, of over $250,000, there seems to be but little question, was made out of the private means of the survivors. This bare statement would seem to put at rest any claim that Joseph 1ST. Tift, at the time of his death, owned a farthing’s interest in the property of the old firm. Charging him with this large deficit, it is not apparent from the evidence in this case how it was overcome by the subsequent management of the property of the old firm by the new so as to leave anything for the plaintiff. It is true that while the old firm might in fact-have been insolvent at the time of the death of Joseph, if there were subsisting contracts or property out of which might spring in the future, if judiciously managed, profits that would wipe out the liabilities of the old concern, and leave a balance, the plaintiff might share in that, but there is nothing in this case to justify such hopeful conclusions.

. Certain exceptions were taken by the plaintiff to the admission of rejection of evidence upon the trial. We do not deem it necessary to consider them here, because if even they embraced the errors alleged by the plaintiff, they could not have possibly affected the result, or averted the inevitable conclusions that the referee reached, and which we have reached from the papers before us, — that at the time of the death of Joseph the old firm was hopelessly insolvent, and there was nothing for the survivor’s of the firm to build upon, out of which to work any benefit to the plaintiff.

The judgment should therefore be affirmed, but as it was proper for the plaintiff to bring this action and obtain the accounting, no costs should be imposed upon the plaintiff, as administrator, upon this appeal.

All concur.


author: Calder, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Michael A. McOwen et al., as Executors of Charles Wins-low, Deceased.

      (Surrogate’s Court, Oneida County,

      Filed April, 1895.)

    Surrogate — Death.
    Upon the office of the surrogate becoming vacant, either by death of the incumbent or upon the expiration of his term of office, his successor has power to take up an unfinished matter where left by his predecessor, continue the proceeding, hear additional testimony that any party interested may offer, and, upon the whole evidence, file a decision which shall contain findings of fact and conclusions of law.
    Petition for the judicial settlement of the accounts of executors.

      P. F. Bulger (D. C. Stoddard, of counsel), for petitioner; Leslie W. Kernan, and E. D. Mathews, for the executors; Henry L. Gates, special guardian.
   Calder, S.

— The petition for the judicial settlement of the accounts of Michael A. McOwen and Thomas Manaban, as executors of the last will and testament of Charles Winslow, was presented on the 28th day of December, 1892, and thereupon a citation was duly issued, directing that all parties interested be and appear at a surrogate’s court, in the city of Utica, on the 16th day of January, 1893. The executors’ account was filed Decernher 28, 1892. Objections to the same having been filed, testimony in respect thereto was taken from time to time before Surrogate Bright. During the evening of the 4th of June, 1894, the day upon which the case was submitted, he died, leaving the questions in dispute undecided. It was thereafter stipulated that upon the evidence a reargument should take place before his successor. Same was had on the 28th day of September, 1894, aud on December 18th the surrogate filed his opinion. His term of office expired on December 21, 1894. An affidavit was subsequently presented to the present surrogate, containing a statement of the proceedings herein, upon which an order to show cause was granted, returnable February 25, 1895, why the same should not be completed. All parties were heard upon the motion. This follows the practice suggested in re Espíe, 2 Kedf. Surr. 445.

The opinion of the former surrogate was expressive of his views upon the questions in controversy, and directed that findings in harmony with his conclusions be proposed for settlement. No findings of fact or conclusions of law were made, and nothing was done upon which a proper decree could be entered. That the surrogate did not consider that he had filed anything more than an opinion was clearly indicated by his concluding directions. An opinion contains the views of the judge in relation to a given subject. A decision embraces the findings of the court, upon which a decree or judgment may be entered. Section 2545 of the Code of Civil Procedure provides that the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. The repeal of section 1033 is immaterial, as that did not apply to the practice in surrogate’s court. Hartwell v. McMaster, 4 Redf. Sur, 392. What a decision should contain is well settled, and the questions in relation thereto have been frequently passed upon. Angevine v. Jackson, 103 N. Y. 470; 3 St. Rep. 643; In re Falls' Estate, 29 St. Rep. 769; In re Peck, 39 id. 234; In re Kaufman, 39 id. 236 ; Hartwell v. McMaster, supra. A case on appeal will be remanded when it appears that no decision has been filed containing findings of fact and conclusions of. law. In re Falls' Estate, supra. No decision in this proceeding was, therefore, filed, as provided by the Code of Civil Procedure.

In what manner and from what point can the present surrogate proceed ? Three ways are suggested : First To file findings of fact and conclusions of law in harmony with the opinion of the former surrogate. Second. To take up the matter de nova. Third. To take up the proceedings at the close of the evidence, hear additional testimony that any party interested may offer, and upon the whole evidence file a decision which will contain findings of fact and conclusions of law.

I do not believe that the first or second method is the proper practice to follow. To sign findings based upon the opinion of the former surrogate would not make them his, for he did not formulate them; and, to be his, he should sign them. Neither would they be the findings of the present surrogate, predicated upon what he believed to be the correct interpretation of the evideuce, for he did not hear the testimony, nor has he read the evidence. To sign findings in this matter would be simply a mechanical act, not conclusive upon any party in the controversy. In Re Will of McCue, 17 Wldy. Dig. 501, the evidence was taken before the surrogate, who filed an opinion upon the last day of his term of office, expressing his views, but not containing findings of fact or conclusions of law. His successor, proceeding upon his opinion as filed, admitted the will to probate. It does not appear that the surrogate reviewed the evidence, or that anything was done upon notice to the contestants, or that a statement was presented to the court containing a history of the proceeding. It was held that great doubt existed as to the power of the successor to make formal findings upon the opinion of his predecessor. Here all the parties are in court, and have been cognizant of every step in the proceeding. The evidence was transcribed at a large expense to the estate, the preparation of counsel involved a great amount of labor, and the court was engaged a considerable length of time, and to urge that the matter be taken up de nova seems unnecessary, if not improper. The personnel of the court may change, but the court itself is the same ; the office continues. I appreciate the suggestion of counsel that the witnesses and the testimony offered can, perhaps, be better understood if the court deciding the questions may have the benefit of the presence of the parties testifying. It would be a hardship, however, to compel proceedings of this character to be taken up de nova. If such were the case, upon the entry of each surrogate upon the duties of his office, it would seriously interrupt the work of the court, incur a large expense, and, in many instances, do injustice. I do not believe the legislature intended to impose such a burden upon the court or litigants.

The Code provides (sections 2513, 2500) that the surrogate, in his discretion, may appoint and at pleasure remove a stenographer', and that every deposition, petition, report, account, voucher or other paper must be carefully preserved, and that he shall deliver to his successor all papers and books kept by him; that said stenographer (section 2541) must, under the direction of the court, take full stenographic notes of all proceedings in which oral proofs are given, and the testimony must be legibly written out at length from the notes; that the minutes, after being properly authenticated, must be filed. The above sections, taken together, make the minutes records in the surrogate’s office, and it is, therefore, unnecessary to take testimony again. Where testimony on the probate of a will has been commenced before the surrogate, and his term of office expires before it is completed, his successor in office need not take the testimony de nova. Reeve v. Crosby, 3 Redf. Sur. 74. The same principle in laid down in Re Martinhoff, 4 id. 286, and in Re Espie, 2 id. 446.

The ithird proposition I believe to be the correct one to follow. Section 2481, subd. 8, provides that a surrogate has power to complete any unfinished business pending before his predecessor in office, including proofs, accountings and examinations. This is unfinished business, and is an accounting, and the statute is broad enough to confer j urisdiction upon me to complete this proceeding. The general rule drawn from the cases last cited is that upon the office of the surrogate becoming vacant, either by death of the incumbent or upon the expiration of his term of office, his successor has power to take up the matter where left by his predecessor, continue the proceeding, and in a proper manner carry the same to its final determination. It is due, however, to any party interested that he have the right to offer additional or explanatory evidence upon any part of the issues involved. In this manner every interest will be fully protected. Upon reading.the evidence taken by the former surrogate, and after hearing any .additional proofs that may be offered, the present surrogate can then make his decision in writing, containing findings as required by the Code, upon which a decree may be entered.

An order may, therefore, be entered reopening the case, and giving any party interested the right, upon proper notice, to produce additional proofs, after which, at a time to be agreed upon, the case may be submitted.

Ordered accordingly.


author: Hardin, P. J.

text:
    Kittie Crosby, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

      1. Negligence — Excessive speed.
    It is negligence in a railroad company to run a train within the city limits at a greater rate of speed than ordinances permit.
    3. Same — Question for jury.
    The evidence in the case was held to render the question as to whether the deceased was guilty of contributory negligence one of fact, which should have been submitted to the jury.
    Appeal from a judgment, dismissing the complaint entered on .an order granting a nonsuit.

      Ceylon H. Lewis, for app’lt; Frank Hiscock, for resp’t.
   Hardin, P. J.

— Plaintiff’s intestate was killed by an engine of the defendant passing easterly on its tracks while crossing Geddes street at about 5:40 P. M. of the 11th day of Hovember, 1892. He had been drawing materials to the canal, and was passing from the •canal bridge southerly along Geddes street. In his vicinity were five men on foot, who stopped on the west side of the street to •avoid the passing and repassing of a switch engine, and to discover that the street was free from moving trains. The deceased stopped his horse, but at just exactly what distance from the tracks does ■not appear, though at the trial it was assumed to be about sixty-six •feet. The train that caused the injury was approaching from the west on a curve, and with the headlight lighted, at a speed, shown by some of the evidence, of thirty miles an hour, on a down grade. 'When plaintiff started to cross, he was required to pass directly in ■front of the headlight of the switching engine, a few feet from it,— so near as to be affected by the glare of its light. He passed over 4he switch track. There was a Solvay train near to him, which usually crossed before No. 30, — the train which caused the injury,. —but on this occasion, at a’speed of thirty miles an hour (as the-jury might have found), came to the crossing ahead of its schedule time. There had been flags used at the crossing, to the knowledge of the deceased, but no flagmen were in attendance in discharge of such duty on this occasion. The men who usually performed such services were attending to other duties. The five men who were on the sidewalk awaiting an opportunity to pass apparently did not discover train No. 30 until it was within seventy-five feet of the crossing, although they stood within five feet of the track on which the train was approaching. They narrowly escaped being injured. They point out the difficulties of seeing the approaching train. O’Neil, a witness called in behalf of the plaintiff, in describing the occurrences just preceding the accident, states that Horan was near to him, a little in front, and that he looked up the track and saw the passenger train coming, and it was then about seventy-five feet west of the witness, and at that time there was no flagman there; and that as he saw the train he looked down the track to see if the track was clear, and he saw a horse and wagon on the track, and a man in the wagon. “ It was about in the center of the track. The forward wheel was in the center of the track that the train was on, — the south track. The forward wheel was in about the center of that track at the time I looked to see.” And he says when he first saw the train it was about seventy-five feet to the west, and then he saw the wagon get hit with the train; and that it only took about two seconds to accomplish all the things which he thus stated. He says that the deceased “had the whip or lines in his hand when I saw him. He was looking — facing— towards the train. He was turned in his seat, * * * and he was crouched over in this manner. * * * The front wheels-of his truck, about that time, were about in the center of the track. Then the train struck his wagon. The train struck the hind wheels. At that instant I was probably fifteen feet from the south track.” There was some evidence tending to show that it was “a very dark night;” and one witness says that he could not see the-outlines of the train ; that he could just see the headlight, and did not hear the ringing of the bell. The switch engine had been passing up and down, and it had in use a blower which caused it to make considerable noise, interfering with the discovery of other-sounds ; and there is some evidence that the wind was in the east, which would carry the escaping smoke and steam in the direction of the approaching train, — to the westward, — and distribute it along the tracks to the -west of the deceased; and there were several buildings on the west side of Greddes street which would obstruct the view of a person posing over the canal bridge to the crossings. The witness Horan testified that he was at the crossing, and looked to the west and saw the train near the switch shanty, a little west of it, and that he called out to look out for the train, and, as he looked, he saw Crosby. The front wheels of his truck were just going over the north rail of No. 1 track. The witness adds: “ He turned around and looked up like that, and got up-like that, * * * and was going to hit the horse. That is the-last I saw of him, — looking towards No. 30.” And he adds: “He was looking up like that, * * * he had the whip up like that, % * and that is the last I saw of him." It appears that the trial judge put the nonsuit on the ground that, the plaintiff was not free from contributory negligence. We think, under the evidence disclosed in the appeal book, that the question of whether the deceased was guilty of contributory negligence was one of fact, which should have been submitted to the jury. Since the trial at the circuit we have decided Pitts v. N. Y., L. E & W. Railroad Co., 79 Hun, 546; 61 St. Rep. 559, and in that case it was hekkby this court that “ the absence of contributory negligence may be shown from circumstances.” It was also said in that case that, “if the facts and surrounding circumstances shown are such as to reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is to be determined by the jury, although there were no eyewitnesses to the accident.” The opinion delivered in that case sufficiently refers to the authorities which are relied upon to support the propositions of law laid down in that case. We think the evidence in this case was such that, the trial judge, in accordance with the views expressed in the case to which we have just referred, should have submitted the question whether the deceased was free of contributory negligence to the jury. In Miller v. N. Y. C. & H. R. Railroad Co. 82 Hun, 165 ; 63 St. Rep. 766, affirmed by the court of appeals in April, 1895 (41 N. E. 90)„ we referred to and followed the doctrine of Pitts v. Railroad Co., supra. See, also, Chisholm, v. State, 141 N. Y. 246; 56 St. Rep. 811.

2. It appeared by the evidence that one of the ordinances of the city of Syracuse in force at the time of the trial provided, viz.: “No railroad company whose cars are propelled by steam shall propel said cars within the city limits at a greater rate of speed than one mile in eight minutes.” It is assumed by the trial judge that the evidence would warrant the jury in finding that train No. 30 “was approaching the,crossing from the west at- the rate of twenty-five miles per hour " We are of the opinion that the evidence offered at the trial would have warranted the jury in finding the defendant guilty of negligence which caused the death of the plaintiff’s intestate.

We therefore order a new trial.

Judgment and order reversed, aud a new trial ordered, with costs to abide the event. All concur.


author: Hardin P. J.

text:
    Novelty Manufacturing Company, Resp’t, v. Lansing W. Connell et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Corporations — Foreign—Oertieicate .
    A foreign corporation which ships goods into this state on orders given out of the state, is not doing business within the state, within the meaning of section 15, chap. 687 of 1892.

      2>\ Same — Directors—Liability.
    An unpaid, past-due note of a corporation is not a payment^ of the debt represented thereby, so as to relieve the directors from personal liability, in action to charge them with the corporate debts for failure to make annual reports. ■
    3. Same — Reports—'Verification,
    Where the same person holds the offices of vice-president and treasurer of a corporation, one oath by him is sufficient in verifying the directors’ report under section 30, chap. 688 of 1892.
    ■Appeal from a judgment entered on a verdict in favor of plaintiff.

      Hancock Beack, Peck & Devine, for app’lts; George H. Sears, for resp't.
   Hardin P. J.

— Plaintiff’s complaint states a sale of goods to, and thereby the creation of a debt in its favor against, the Syracuse Bamboo Furniture Company, a stock córporation organized under the laws of this state, and having its principal place of business at Baldwinsville, in the county of Onondaga. The complaint also states that a judgment was recovered against the furniture company, and an execution on the judgment issued and returned wholly unsatisfied prior to the commencement of this action, and that the company is wholly insolvent, defendants were directors •of the company in 1892 and 1898, and this action is to collect plaintiff’s debt of them by reason of their alleged statutory liability, arising from a noncompliance with the statute as to annual reports of the officers of the company. Defendants’ answer admits the incorporation of the plaintiff, and the incorporation of the Syracuse Bamboo Furniture Company, and that it was a stock ■corporation* and that, at the times mentioned in the complaint, the defendants were directors of the furniture company. It also admits that said furniture company “did not, within the month of January, 1892, or at any time prior to the 30th day of January, 1892, or any other time prior to the 30th day of January, 1893, make a report and file the same in the office of the secretary of ■•state, or in the office of the clerk of the county where its principal business office was located ; that said company neglected to file any annual report required by law previous to the 31st day of ■January, 1893; that the defendants did not make and file a report with the secretary of state within thirty days after the 1st day of ■January, 1892, or the 1st day of April, 1892, or at anj other "time •a verified certificate stating they, or either of them, had endeavored' to have such annual report made and filed, and that the officers or majority of the directors, had refused and neglected to make and file the same.” They also admit the recovery of a judgment by plaintiff on account of said sale against the company for $534.-•43, and the docketing of the judgment, and that an execution was issued to the sheriff of Onondaga county before the commencement of this action, and that it was returned wholly unsatisfied. When the proofs were all before the court, a verdict was directed "for the plaintiff for $566.94, being $514debt and $52.94 interest thereon. Defendants challenge plaintiff’s right to recover $90.38 of the debt, which was for goods sold and delivered January 4, 1893, and insist that the plaintiff had not complied with chapter 637 of the laws of 1892. That chapter was approved May 18, 1892. In its section 15 it is provided that:

“No such corporation now doing business in this state shall do business herein after December 31, 1892, without having procured such certificate from the secretary of state, but any lawful contract previously made by the corporation may be performed and enforced within the state subsequent to such date.”

The principal order for goods given to plaintiff was November 1, 1892. It was delivered to plaintiff at Waterbury, Conn., and the goods were shipped in this state to the furniture company. The plaintiff was not hereby doing business within this state, within the terms of the act, by making the shipment of January 4, 1893. Murphy Varnish Co. v. Connell, 10 Misc. Rep, 553; 65 St. Rep. 817. We think the objection is unavailing to the defendants. Lancaster v. Amsterdam Improvement Co., 140 N. Y. 571 ; 56 St. Rep. 434; Demarest v. Flack, 128 N. Y. 205; 40 St. Rep. 383; Providence Steam & Gas Pipe Co. v. Connell, 67 St. Rep. 196. It is provided further, in section 15:

“No foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate.”

That restriction seems to relate to contracts made in this state. However, the secretary of state issued to plaintiff the certificate required by the statute of January 10, 1893. This action was not brought until the 23d of January, 1894. We think the objection to the item of $90.68 was properly overruled by the trial court. Bertha Z. & Mineral Co v. Clute, 7 Misc. Rep. 123; 57 St. Rep. 70.

2. No error was committed in refusing to treat the unpaid promissory note of the bamboo company as a payment upon the indebted ness held by the plaintiff against it. The note was long past due and unpaid when this action was commenced, and could not be used to relieve the defendants of their liability for the indebtedness which accrued in favor of the plaintiff, while such neglect existed. Gas Pipe Co. v. Connell, supra. The note did not merge or extinguish the debt. Parrott v. Colby, 6 Hun, 55. The liability of defendants here is in the nature of a penalty for failure to file a report required by the statute. Gadsden v. Woodward, 103 N. Y. 244; 3 St. Rep. 102; Rogers v. Decker, 131 N. Y. 492 ; 43 St. Rep. 781. It is a liability “created anew by the statute in the form of a penalty for specific acts of disobedience.” Finch, J., in Rogers v. Decker, supra. The taking of the note by the furniture company did not extinguish the debt. When there was a failure to pay it the creditor had a right to bring an action upon the original debt, and produce the note upon the trial to be delivered up. Iron Co. v. Walker, 76 N. Y. 521; Lackawanna Mills v. Weil, 60 St. Rep. 726.

3. The proof shows an item of indebtedness created for $13,81, February 8, 1893. There was a report made by the directors, bearing date January 30, 1893, acknowledged that day, signed by Kenyon, Chapin, and Crum, and verified by Kenyon on the same day. It was filed January 31, 1893. The oath of Kenyon stated that he “is the vice president and treasurer of the Syracuse Bamboo Furniture Company, and that the foregoing certificate by him subscribed is true.” Section 30 of chapter 688 of the Laws of 1892,. provides:

“Such report shall be signed by a majority of its directors, and verified by the oath of the president or, vice-president and treasurer or secretary, and filed in the office of the secretary of state- and in the office of the county clerk of the county where its principal business office may be located. If such report is not so made- and filed, all the directors of the corporation shall jointly and severally be personally liable for all the debts of the corporation then existing, and for all contracted before such report shall be made.”

No question was made at the trial as to the fact that Kenyon, when he verified the report, was vice-president and treasurer of the company. The language of the statute is that the report shall be verified “by oath of the * * * vice-president and treasurer,” and the verification is a literal compliance with the terms, inasmuch as Kenyon was both vice-president and treasurer. It would have added nothing to the essential evidence of the truth of the report if Kenyon hade made two oaths, one as vice-president and the other as treasurer. The object of the statute seems to have been answered by the report and verification of January 30,1893, and we are not inclined to hold that the report and verification thereof were irregular, or that there was a failure to comply with the essential requirements of the statute in that regard. Jones v. Butler, 65 St. Eep. 772. We think the debt contracted on the 8th of February, 1893, after the report was filed, is not one for which the defendants are liable. The verdict and judgment should be reduced by striking therefrom $13.81 and the interest allowed thereon.

4. The proof failed to establish a counterclaim for the tools mentioned in the answer and in the proofs. The evidence did not establish that they had been purchased by the plaintiff, nor that the plaintiff had agreed to apply the value thereof upon its claim, nor that the plaintiff had converted them to its use. The trial judge properly refused to apply the value of the tools in reduction of the defendants’ liability. Code, § 521; Clapp v. Wright, 21 Hun, 240.

The foregoing views lead to the conclusion that the verdict was properly directed for the plaintiff, except as to the item of $13.81. The plaintiff will have an opportunity to stipulate to deduct that item and the interest on the same, from the 8th of March, 1893, out of the verdict and judgment.

Judgment reversed, and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to deduct from the verdict and judgment $13.81 and interest from the 8th of March, 1893, in which event, the judgment, as so modified, is affirmed, without costs of the appeal to either party. All concur.


text:
    Samuel H. Kenyon, App’lt, v. Lizzie Kenyon, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Evidence — Presumption—Failure to call witness.
    Where, in an action for a divorce, a witness for plaintiff, who is not in any way discredited, testifies that he saw defendant commit an act of adultery with a person named, as charged in the complaint, which the defendant denies, it is not incumbent upon the plaintiff to call such person to corroborate the witness, but the omission of the defendant to call him as a witness in her behalf creates a presumption against her.
    Appeal from a judgment in favor of defendant.
    Plaintiff’s complaint avers that the defendant has committed adultery, and alleges “that the said defendant, on or about the 31st day of March, 1894, in the town of Lebanon, in said county of Madison, N. Y., and at the hop kiln of Morris Campbell, in said town, did commit adultery and have carnal connection with one Charles C. Green; and that the^ said defendant did, at various times between the 1st day of December, 1893, and this action commit adultery and have carnal connection with the said Charles 0. Green.” It is alleged that the parties were married on the 1st of June, 1892, and that they continued to live together as man and wife, until about the 20th of October, 1893. The answer admits the marriage, and that parties lived together as man and wife until the 20th day of October, 1893, and that they never had any issue, and denies the other allegations of the complaint. The referee found, as a conclusion of fact, viz. “that the defendant has not been guilty of adultery as alleged in the plaintiff’s complaint;” and ordered judgment dismissing plaintiff’s complaint. The report was presented to a special term in January, 1895, held in Onondaga county, and the report was confirmed, and thereupon the judgment appealed from was entered in Madison county on the 15th day of January, 1895. Exceptions were filed by the plaintiff to the conclusion of fact already stated, and to the conclusion of law already stated.

      S. B. Clyes and H. B. Coman, for app’lt; J. A. Johnson and S. Perry Smith, for resp’t.
   Hardin, P. J.

— Allen v. Allen, 18 N. Y. Wkly. Dig. 184; affirmed, 101 N. Y. 658, is an authority holding that “ the rule of evidence in an action of divorce a vinculo is the same as in other civil actions.” In the course of the opinion delivered in the general terms in that case, Boardman, J., said: “While we may not examine the referee’s opinion to ascertain what he decided, we may learn therefrom the principles governing his judgment.” In Murray v. Fox, 39 Hun, 116, near the close of the opinion, Bradley, J., says: “And, although the opinion is no part of the record, it may be referred to for some purposes. Synder v. Synder, 96 N. Y. 88 ; Allen v. Allen, 18 Wkly. Dig. 184.” Having carefully read and studied the evidence found in the appeal book, we have reached a different conclusion from the referee upon the important issue of fact tried before him. Archie Campbell, a witness •called for the plaintiff, testifies positively that he witnessed the defendant committing an act of adultery with one Green on the 31st of March, 1894. Nothing appears in his testimony rendering .him, apparently, unworthy of credence. The defendant, however, when a witness, denied the circumstances related by Campbell, and sought to give circumstances tending to support her evidence. Neither party called Green as a witness upon the trial, and the learned referee, in the opinion which he delivered in connection with his report, refers to that circumstance. He says :

“Besides this, we think Green should have been called to corroborate him (Campbell) if not to the fact of adultery, to such surrounding circumstances as he would have been obliged to testify to. * * * In this case Green has not been called by either side. It was not the duty of the defendant to show that she was not guilty of adultery; it was the duty of the plaintiff to establish the fact affirmatively, and to prove such circumstances that the defendant would be'compelled to establish her inno.cence by all the evidence that she could procure for that purpose. Green lives in the neighborhood of both parties to this action, and could readily have been put on the witness stand, but, without excuse or explanation, he has not been sworn. The fact that he was no.t called by the plaintiff surrounds his. case with suspicion, and leaves doubts and uncertainties in existence which might possibly have been removed by his evidence. It is known to the referee that Green and the plaintiff have been intimate associates and friends, and we think he should be called as a witness, for if he declined to admit or deny the alleged adultery, as he.probably would have a right to in court, he could have testified whether he was in company with the defendant any time that evening, and probably other circumstances of importance in that case.”

We are inclined to think the referee laid an erroneous rule upon the plaintiff in respect to the absence of Green as a witness. In Rider v. Miller, 86 N. Y. 507, the defendant was charged with having committed a fraud in obtaining a deed through the instrumentally of one Schooley, who was present and took part in the negotiations and transactions with the grantor. The defendant did not call Schooley as a witness, and in the.course of the opinion delivered in that case it was said that the omission bore very much against the defendant, “and tended to strengthen the plaintiff’s case.” In Gordon v. People, 33 N. Y. 501, it was said that an omission to produce evidence which will exculpate is not conclusive of the fact in dispute, but that the absence creates a strong presumptive evidence against the party who might thus have called to his aid the testimony omitted; and that the force of such circumstance should be left as a question for a jury or trial court to consider. In the course of the opinion, at page 509, it was said, in speakipg of the absence of such evidence, viz. : “In a doubtful case it would justify the jury in resolving the doubt against him citing numerous cases to sustain the proposition. In Schwier v. Railroad Co., 90 N. Y. 558, there was an omission to, call the engineer, and evidence was given warranting certain inferences which presumptively he might have rebutted ; and, in speaking of the absence of his testimony, Dantorth, J., says : “It was not given, and, while the omission to call the engineer as a witness is not evidence against the defendant of the existence of any fact, it is cause for taking such testimony as in the case — and which, if untrue, he might have contradicted or explained- — -most strongly against him. Bleecker v. Johnston, 69 N. Y. 309.” In Crary v. Crary, 46 St. Rep. 307, the doctrine just referred to is approved; and near the close of the opinion in People v. Hovey, 92 N. Y. 554, the same doctrine is referred to, and Ruger, C. J., says: “A jury would have the right to infer that the evidence of an eyewitness to a transaction would not be favorable to a party who voluntarily excluded such witness from testifying in the case.” In Byrne v. B. C. & N. Railroad Co., 58 St. Rep. 121; 26 N. Y. Supp. 760, it was said : “A weak case for the plaintiff is made strong when a. witness who could contradict it is not called by the defendant.” We are inclined to the opinion that the learned referee did not apply the rule sustained by the authorities which we have referred to. It is very obvious from the course of the trial, and the facts- and circumstances developed therein, that had the defendant called the witness Green to the stand, if the version which she gives is the correct one, he would have sustained her. An omission to call him gives rise to a strong presumption that he would not so testify ; that he would not deny the facts and circumstances or the details of the overt act stated by the witness Campbell. The foregoing views lead us to the conclusion that the referee fell into an error in reaching the conclusion stated in his report.

Considerable evidence was given relating to another occasion when the defendant is alleged to have committed adultery, but we forbear to comment upon that, inasmuch as a new trial may develop a new state of facts and further evidence than now appears before us.

Judgment reversed on the law and facts, and a new trial ordered, with costs to abide the event. All concur.


author: Bradley, J.

text:
    Charles F. Goodwin, Resp’t, v. Josephine Thompson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed July 6, 1895.)

    1. Mortgage — Estoppel.
    The rule that, where a mortgage is taken subject to a prior mortgage, the junior mortgage is estopped from attacking the prior one for invalidity, does not necessarily apply to defeat a defense founded in fraud against a party not an assignee in good faith of the prior mortgage.
    3. Pleading — Sham.
    The granting of a motion to strike out an answer, or a portion thereof, as sham is justified only when the pleading is sham, in the sense of being a mere pretense set up in bad faith, without color of fact.
    8. Same.
    When a party sets up matters by allegations constituting, if true, a substantial defense, he cannot he compelled to submit to have the issues, or the truth of the matters so alleged, determined upon motion by affidavits, but is entitled to have them tried in the usual manner.
    Appeal from an order, granting a motion to strike out certain paragraphs of the answer as sham and the residue of -the answer as frivolous and for judgment.

      C. J. Browning, for app’lt; S. D. Bentley, for resp’t.
   Bradley, J.

— The action was brought to foreclose a mortgage, made by Ella H. Clements to Charles O. Peckens, of date May 1, 1894, on certain premises situated on the south side of Raymond street, in the city of Rochester, to secure the payment of $1,700. The mortgage with the bond was assigned by Peckens to the plaintiff August 10, 1894. The complaint alleges that the defendant Thompson, has or claims to have some interest in or claim upon the premises, which accrued subsequently to the lien of the mortgage. The defendant by her answer alleges that, on or about July 10,1894, she made to Ella H. Clements a deed of certain premises situate on the west side of Saratoga avenue, in the city of Rochester; and, as security for the payment of $1,000 of the purchase money, she received from the grantee her bond, with a mortgage on the Raymond street property, being then advised that ■there was a prior mortgage of $1,700 on the premises; that the negotiation which resulted in the sale and conveyance by the defendant of her premises to Clements, and the taking of the mortgage, was had with her by Charles O. Peckens, the plaintiff’s assignor of the mortgage in suit. And the defendant alleged that ■she was induced, by the fraudulent representations of Peckens, to make the deed to, and take the mortgage from, Clements, and that the transaction on the part of Peckens in procuring the defendant to part with her title and take such security was a scheme, within the purpose of a conspiracy, between Peckens, one Sears, Mary Wheeler, Ella H. Clements, and others, to perpetuate frauds to the prejudice of others. Apparently, and in practical effect, the mortgage, as then understood by the defendant, was made upon the equity of redemption of Clements in the Raymond street property, and subject only to the $1,700 mortgage. But the defendant charges that she was induced to make the conveyance and take the mortgage by the false and fraudulent representations of Peckens, that Clements, who was and became liable to pay the moneys secured by the mortgages, was pecuniarly responsible, and worth $80,000 and upwards, and that the value of the Raymond street property was upwards of $4,000; but that, in fact, Clements was utterly irresponsible, to the knowledge of Peckens, and that she was made the depositary of the title of both properties, for the purpose of giving the mortgages, in aid of, and to consummate a scheme for the advantage of those persons, so united iu purpose to defraud others, including the defendant. And the defendant, also, in substance, charges that the $1,700 mortgage in question, on the Raymond street property, was not given or intended to secure any valid debt, but was given and intended as a fraudulent cover to enable Peckens and others to carry out the fraudulent scheme mentioned in her answer; and that it, with another mortgage thereon, of which she was not advised, of $550, prior to that given to her, was greater in amount than the value of the property.

Those facts do not concern the plaintiff, provided he is a bona fide purchaser of the bond and mortgage for a valuable consideration. Moore v. Bank, 55 N. Y. 41; Simpson v. Del Hoyo, 94 id. 189. A different question would arise in an action by an assignee of the defendant’s mortgage. Hill v. Hoole, 116 N. Y. 299; 26 St. Rep. 657- The defendant, by the seventh and eighth paragraphs of her answer, upon information and belief alleges, in substance, that, pursuant to such conspiracy, and with such fraudulent purpose, those conspirators caused Peckens to made a “nominal assignment” of the bond and mortgage to the plaintiff, that it might be foreclosed by an outside party, and thus defeat the rights which the defendant might otherwise have in the Raymond street property as against the mortgage; that the plaintiff is not the real party in interest, and that the real persons in interest are “the said Charles O. Peckens, Mary Wheeler, and others of the said conspirators.” Those two paragraphs, seven and eight, were stricken out as sham; upon motion founded upon affidavits, by which, among other facts stated in them, it is made to appear that the plaintiff purchased the bond and mortgage in good faith, and paid the full amount thereof for them. The relief given by the order appealed from may, in a proper case, be granted on motion. Code Civ. Proc. §§ 537, 538.

The matters of the answer, exclusive of the allegations in the seventh and eighth paragraphs, constitute no defense, as against the plaintiff. But with those of the latter, to the effect that he is' not an assignee in good faith of the bond and mortgage, there is sufficient alleged to present a defense; and, if the alleged fraud, including the alleged fact that they were without valid consideration, is established, the burden of proving that the plaintiff is a bonafidk assignee for value will be cast upon him. Simpson v. De Holyo, 94 N. Y. 288; Starin v. Kelly, 88 id. 418.

‘ The want of ample consideration for that bond and mortgage is an essential element in the alleged defense. The general proposition that when a mortgage is taken subject to a prior one the junior mortgage is estopped from attacking the prior one for invalidity is not necessarily applicable to defeat the defense founded in fraud, as against a party not an assignee in good faith of the prior mortgage. The question, therefore, is whether those paragraphs 7 and 8, for the purposes of relief, upon the motion founded upon affidavits, were properly stricken out as sham. In the legal sense, a defense is sham when “it is so clearly false in fact as that it does not in reality involve any matter of substantial litigation.” People v. McCumber, 18 N. Y. 320. The allegations in those two paragraphs alone constitute no defense. The effect of them as such is dependent upon the matter of fraud charged in other portions of the answer, and both are essential to the alleged defense. In view of the fact that the. defendant was advised of the prior mortgage in suit at the time she took hers upon the property, and of the facts stated in the affidavits upon which the motion was made, it is difficult to see that the defendant can reasonably entertain any hopes of making a defense to the action. But in recognition of the rule applicable to such motions, it is not seen that the motion can well be supported.

When a party sets up matters by allegations constituting, if true, a substantial defense, he cannot be compelled to submit to have the issues or the truth of the matters so alleged determined upon motion by affidavits. The granting such motion is justified onty when the pleading is sham, and therefore false, in the sense of being a mere pretense set up in bad faith, without color of fact.. Kiefer v. Thomass, 6 Abb. Pr. (N. S.) 42; Garnsworth v. Halstead, 18 Civ. Proc. 227; Webb v. Foster, 45 N. Y. Supr. Ct. 311. It does not necessarily appear that the defendant may not have had some information and belief of the matters alleged in the answer. It is verified, and by affidavit she states, that the answer was interposed in good faith; and, although it appears by the facts as staled in the affidavits on the part of the plaintiff very specifically, with circumstances in detail of the transaction of the purchase, that the plaintiff is assignee in good faith, and for a valuable and ample consideration, the defendant cannot be required to submit to the disposition of the issues upon adffidavits, but is entitled to have them tried in the usual manner. The adoption of any less stringent rule in its application to the present case could be treated as holding that the determination of the question of the truth or falsity of affirmative matter of defense by affidavits upon motion is subject to the discretion of the court, and the result made dependent upon the preponderance of fact in that manner presented upon the motion. It is unnecessary to consider the question relating to the service of the amended answer, as there is no essential difference between it and the original one.

The otder should be reversed, and the motion denied.

All concur.


author: Putnam, J.

text:
    Kingston National Bank, Resp’t, v. Augustus H. Van Buren, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Executors — Disputed claim — Proof.
    The evirlenc e, in this case, was held sufficient to establish a claim against the decedent’s estate for money collected by him as cashier of plaintiff’s bank.
    Appeal from a judgment entered in favor of plaintiff.

      John J. Linson, for applt; V. B. Van Wagonen, for resp’t.
   Putnam, J.

— The plaintiff presented to defendant, as administrator, a claim against the estate of Nicholas E. Brodhead for $625 and interest, for money alleged to have been collected by deceased of the firm of George B. Merritt & Oo. for the plaintiff. Defendant doubting the justice of said demand, the matter in controversy was referred, pursuant to the statute. The referee, after hearing the proofs and allegations of the parties, made findings in favor of the plaintiff, and judgment was duly entered thereon. Defendant now appeals, on the ground that the judgment is unsupported by the evidence. We have therefore carefully read and considered the testimony in the case. While it is possible that the referee could have properly reached a different conclusion than the one arrived at on the question of fact submitted to him, we are of opinion that, on the evidence, this court .cannot properly reverse the judgment on the facts.

It appeared upon the trial that the deceased, as an officer of plaintiff, collected of Gr. B. Merritt & Co., by th'eir check drawn on the plaintiff, $625 on June 8, 1891; that the money was drawn from the bank on said check; that for a time the $625 so drawn was pinned fast to a slip of paper, and laid aside in the vault; that it lay there for some time; that afterwards said money had been taken from the vault. It also appeared that Mr. Brodhead left the bank as cashier on July 31, 1891. After that, the witness Hume, the then cashier, testified that he had a conversation with Brodhead, and asked him what had become of the $625 which was to be applied on Gr. B. Merritt & Co.’s indebtedness. Brodhead replied: “I am holding it for the present.” Hume testified further, that neither the $625 or any part thereof has been paid to the bank to be applied on the indebtedness of Gr. B. Merritt & Co.” The evidence of the witness Hume was uncontradicted. Ho attack ^as made on his character. He was an officer of the plaintiff, inquiring of an ex-officer as to $625 collected by the latter. Brodhead then told him, after he had left the employ of the plaintiff, that he had the $625 in his possession ; and the witness further testified that neither the money nor any part thereof had ever been paid into the bank. This testimony 6f an unimpeached and uncontradicted witness, it seems to us, justified the conclusion reached by the referee. It is true as urged by the learned counsel for the appellant, that, in an action to recover for money misappropriated, it is necessary for the party alleging the misappropriation to prove it, and to produce evidence sufficient to overcome the presumption of innocence in favor of the defendant. But in this case the plaintiff satisfactorily proved the facts by the admission of Brodhead. While it is true, as held in works upon evidence, that in many cases an admission is the weakest kind of testimony, yet an admission made as was that of Brodhead to Hume is most .satisfactory evidence. It was an admission made in the course of business. Hume was plaintiff’s cashier. Deceased was its ex-cashier. The former was inquiring, as he properly could, in regard to money collected by deceased while cashier of plaintiff. To such inquiry, Brodhead, in substance, told plaintiff’s cashier that he had the money; and Hume further testified that it was never paid to plaintiff. This evidence, we think, sustains, the finding of the referee; and we, therefore, conclude that the judgment should be affirmed, with costs. All concur.