author: PATTERSON, J.

text:
    Mark W. Maclay, Resp’t, v. Jeremiah P. Robinson, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 3, 1895.)

    Sifts—Inter vivos.
    Where a father, with the intention to cancel his son’s indebtedness, instructs his bookkeeper to transfer such indebtedness to his own account, and the bookkeeper makes a memorandum which was shown to the son and made pursuant to the instructions of the father, but no entry thereof was made on the books at the time of the father’s death, the gift was held complete. _ _
    Appeal from a judgment entered on the report of a referee.
    Frank D. Sturges, for app’lt;
    Wilhelmus Mynderse, for resp’t executors.
   PATTERSON, J.

We are unable to adopt the conclusion reached by the referee on the only question presented by this appeal. That question is between a surviving partner and the representatives of a deceased partner on the settlement of the copartnership accounts. The evidence shows that the deceased partner, Mr. Bobinson, Sr., declared his purpose of having the 1 alance standing to the debit of one of his partners, viz., his son, transferred to his own account, in consideration of the unprofitable condition of the business and the faithful attention that son had given it. The referee finds (sixth finding) that Mr. Robinson, Sr., with the intention to cancel his son’s indebtedness, instructed his bookkeeper, Mr. Banger, to transfer his son’s indebtedness to his father’s account, and that Mr. Banger (who died before the hearing of the cause) made a memorandum which was -shown to Mr. RobinsOn, Jr., and which was made pursuant to the instructions the father had given. That finding is justified by the evidence. Regarding the transaction as a gift from father to son, as both parties have presented it, it was not of that incomplete character the referee held it to be. The intention to make-the gift had been formed and declared. The subject of it was incapable of actual physical delivery. Steps were taken to effectuate it, and directions given. All that was omitted was a bookkeeper’s ledger entry, and positive instructions had been given him, to make it. He did make a memorandum of those instructions, which he placed in the ledger, but did not actually make an inscription in the accounts before Mr. Robinson, Sr., died, which event happened shortly after the transaction. All that Mr. Robinson, Sr., could personally do or had contemplated doing to perfect the gift, had been done. The mode of furnishing the evidence had been appointed by him. The bookkeeper received his instructions, and acted upon them to the extent of reducing them to a written memorandum, from which to make the entries, but he merely omitted to post from that memorandum to the ledger. So far as the" gift was susceptible of delivery, it was delivered to the common agent of both parties, the agent of the recipient as well as of the giver. Had it been to the sole agent of the giver, it might have been recalled; but the partnership bookkeeper received his orders, and they were communicated to young Mr. Robinson, and considering the subject-matter of the gift, that it was a transaction of accounts only, we think it was complete and irrevocable. The judgment should be reversed as to the statement of accounts of the respective partners is concerned, and the accounts should be restated by charging that of Mr. Robinson, Sr., and crediting that of Mr. Robinson, Jr., with so much of the latter’s indebtedness to the firm as appeared by the book to exist on the 1st day of July, 1886; that being about the date of the assumption by Mr. Robinson, Sr., of that indebtedness, i

VAN BRUNT, P. J., concurs; PARKER, J., dissents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People ex rel. Mary B. O. Dwight, Resp’t, v. Benjamin S. Platt et al., as Assessors, etc., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1, Taxes—Reduction.
    Under section 6, chapter 176 of 1857, as amended by chapter 586 of 1857, the refusal to answer questions as to the value of the personal property does not prevent the court, on certiorari to review the refusal of the assessors to reduce the assessment, from ordering a reference to take evidence, where the decision of the assessors was not based on the person’s refusal to answer the questions.

      %. Appeal—Eibst instance.
    An objection that a reference to take evidence on certiorari to review a refusal to reduce an assessment is erroneous, cannot be raised for the first time on appeal from an order granting the reference.
    8. Taxes—United states bonds—Excess.
    The fact that United States bonds are above par in the market, does not render the owner liable to assessment and taxation on the excess, and the exemption is not limited to par value, but applies to the entire value of the bonds.
    Appeal from an order appointing a referee to take evidence.
    C. D. & Seth C. Adams, for app’lts;
    Jones & Townsend, for resp’t.
   PER CURIAM.

On the 23d day of May, 1895, a writ of certiorari was issued out of the supreme court, under the provisions of chapter 269 of the Laws of 1880, to review the assessment of the respondent made by the appellants, as assessors of the village of Clinton, ET. Y. They-assessed the relator $50,000 for personal property. Upon “'grievance day” the respondent appeared before the assessors, made complaint that she had no personal property which was subject to taxation, and asked that the assessment should be stricken from the roll. She was thereupon sworn and examined by them, and testified that she had no personal property which was subject to taxation, and stated what property she had, in what it was invested, and the amount of debts she owed. During such examination, after having testified that since last year she had bought United States bonds, she was asked, “How many U. S. bonds, and to wbat amount, did you buy, as you say? ” This question she refused to answer. She was further examined by the assessors, who, at the completion of such examination, indorsed upon the complaint and examination their disagreement, as required by statute, and refused to strike her assessment from the roll. The appellants made return to the writ, setting forth the respondent’s complaint and examination, and the proceedings had by and which took place before them in regard to such assessment, which concluded with the statement that after considering the whole matter, and taking into account their personal knowledge and the knowledge they had acquired by diligent inquiry, they believed and decided that the relator was a taxable inhabitant of the village when the assessment was made, and was the owner of $50,000 personal property then taxable in said village, and therefore they refused to strike her name from the assessment roll. Upon films: such return the special term made an order apomting Walter Ballou, Esq., referee to take evidence relating to the matters set forth ino the petition of the respondent and the return of the appellants thereto, and to report the same to the court, with his opinion thereon. Trom that order the appellants appeal.

Chapter 269, Laws 1880, provides that a writ of certiorari may be allowed to review an assessment when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal. It was stated in the petition in this case that the assessment of the respondent was illegal, erroneous, and void, upon the ground that the petitioner was not then, and had not been at any time during the year 1895, the owner of any personal property in the village of Clinton which was the subject of taxation. Section 4 of the act of 1880 provides that if it shall appear by the return that the assessment complained of is illegal, erroneous, or unequal, for any of the reasons alleged in the petition, the court shall have power to strike such assessment from the roll, if illegal, or, if erroneous or unequal, to order a reassessment. It then provides:

“If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made.”

The single question presented upon this appeal is whether the special term was authorized, under this provision- of the statute, to appoint a referee to take proof in the matter, and report the same to the court. The issue made by the petition and return was whether the respondent had personal property to the amount of $50,000, in the village of Clinton, which was the subject of taxation. That, under the provisions of section 4 of the statute of 1880, the special term was authorized to order a reference in this case, we have no doubt, unless the respondent is prevented from reviewing the action of the assessors by reason of her refusal to answer the question asked by them as to how many, and what amount of, United States bonds she purchased. Section 6 of chapter 176 of the Laws of 1851, as amended by chapter 536 of the Laws of 1857, provides that if the person examined by the assessors shall refuse to answer any question as to the value of his real or personal estate, or the amount thereof, the assessors shall not reduce the value of such real or personal estate. An examination of the appeal book discloses that the appellants did not refuse to reduce the respondent’s assessment because of her refusal to answer the question propounded bv them, but, after a full consideration of the matter, they decided that the relator was a taxable inhabitant of the village of Clinton, and the owner of personal property to the amount for which she was assessed; and it was for that reason they refused to strike her name from the assessment roll, or reduce the amount of her assessment. Upon the issue as to whether the respondent was the owner of $50,000 of personal property which, was subject to taxation, we think the court had authority to appoint a referee to take evidence, and report the same to the court. People ex rel. Man. R. Co. v. Coleman, 16 St. Rep. 135. Moreover, the record fails to disclose that the appellants at special term made any objection to the granting of the order of reference upon the ground that the respondent had refused to answer the question she had been asked by the appellants. Under such circumstances,' we think that the respondent’s refusal to answer is not available on this appeal. People v. Hicks, 40 Hun, 598. In the case of People ex rel. Dexter v. Palmer, 86 Hun, 513; 67 St. Rep. 701, where it appeared that the relator was present before the assessors, and refused to answer pertinent questions propounded to him by them, a reference was ordered; and it was held that the return of the assessors was not conclusive, but that the court might consider the evidence offered by the relator, as well as that offered by the respondents. In People v. Smith, 24 Hun, 66, it was held that the return was open to contradiction, and that the court might appoint a referee to take and report the evidence produced by the parties. In People ex rel. Troy Union R. R. Co. v. Carter, 52 Hun, 458; 24 St. Rep. 104, it was said that the return to á certiorari under the act of 1880 was not conclusive, but that the object of the act was to have a review, and that, too, on further evidence, if necessary. In view of these authorities, it is difficult to perceive how this court can hold that it is conclusively established that the relator refused to answer any pertinent or competent question as to the value of her property, or the amount thereof. Upon a trial before the referee, she may deny that there was any such refusal, and, by competent and sufficient proof, satisfy the special term that there was not. In that event, she would clearly be entitled to give such additional proof upon the question as to whether she had personal property to the amount for which she was assessed as she might be able to furnish.

Whether the question propounded to the respondent was or not material, we need not decide. The appellants’ contention that it was material and pertinent, because she was taxable on the value of the United States bonds held by her, so far as their value was above par, cannot, we think, be sustained. It i's true, it was intimated by the court in People ex rel. Manhattan Fire Ins. Co. v. Commissioners of Taxes, etc., in City of New York, 76 N. Y. 64, that bonds were exempt only to the extent of their par value, instead of their market value; but in People ex rel. Leonard v. Commissioners of Taxes, etc., in City of New York, 90 N. Y. 63, that question was more carefully examined, and the court held that the fact that United States bonds were above par in the market did not render the owner liable to assessment and taxation on the excess, and that the exemption was not limited to the par value, but applied to the entire value of the bonds. In referring to the case in 76 N. Y., the court, in effect, said that the question was of minor importance in that case, and not much considered, but that upon a fuller consideration of it they were constrained to hold that the exemption applied to the entire value. These considerations lead to the conclusion that the order appealed from should be affirmed.

Order affirmed, with $10 costs and disbursements.


text:
    Peter De Witt, Resp’t, v. Agricultural Insurance Company of Watertown, App’lt.

      (Supreme Court, General Term,, Second Department,

      Filed July, 1895.)

    1. Insurance—Additional insurance.
    Where a condition in a-policy of insurance provides that it dliould be void if the insured has already procured other insurance, except by agreement indorsed on or added to the policy, a party who contracts to purchase the real estate, takes possession, and commences repairs, and takes additional insurance in another company, is not, at the time he procures such additional insurance, “ the insured,” within the above condition of the policy; nor does he become such by subsequent endorsement of the first policy by the company without his knowledge, and by procurement of the mortgagee, “that he is now recognized as owner of this policy and the property mentioned as insured hereunder,” subject to its conditions.
    3. Same—What constitutcs.
    In such case, the insurance procured by him is not “additional insurance,” within the condition of the first policy, providing that it should be void if the insured has already procured additional insurance, except by agreement endorsed on or added to the policy.
    8. Same—Proofs of-loss—Waiver.
    Where, in such case, he, after a loss served on the company issuing the first policy proofs of loss, which are kept without objection that they are not served by the prpper party, or are not proper in form or substance, and the mortgagee afterwards assigns all his rights to him, such company cannot set up, as a defense to an action by his assignee on his policy, a «failure to comply with a condition requiring proofs of loss to be served by the insured.
    4, Same—Amount of recovery.
    In such case, the amount of recovery by the assignee cannot be reduced on account of the assignor’s additional insurance.
    Appeal from a judgment in favor of plaintiff.
    Theron G. Strong, for app’lt;
    A. H. Sawyer, for resp’t.
   PER CURIAM.

Judgment affirmed, with costs, on opinion of referee.

The opinion of Noah Davis, Esq., to whom/ the cause was referred to hear and determine, is as follows:

This case is, in my judgment, distinguishable in its facts, in some respects, from all the great number of cases that have been called to my attention by counsel, or examined by me. No question is made or suggested but that the policy issued by defendant to Hanford ■ Lockwood was a valid and obligatory instrument in his hands. It was made on the 27th day of June, 1892, and it is not suggested but that every requirement and condition of the policy was then fully met and complied with. Lockwood was then the owner- of the property insured. He subsequently sold and conveyed that property to one Warren E. Smith; and thereupon defendant, with full notice of that fact, made an indorsement on the policy in these words:

“Warren E. Smith is now recognized as owner of this policy, and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of .which are hereby waived or avoided; and loss, if any, first payable to Hanford Lockwood, mortgagee, as interest may appear. Twenty thousand dollars incumbrance is hereby permitted.
“Dated at N. Y. City, August 18th, 1892.”

Afterwards, and on the 23d day of November, 1892, Smith bargained and sold the insured property to Q-eorge E. Nichols, who, it seems, took possession, and commenced repairing the buildings. Hr. Lockwood still held the policy of insurance for the purpose of the security of his mortgage in case of loss, as permitted by the indorsement of the company. Afterwards, and on about the 27th of December, 1892, Lockwood applied to the defendant company, and, presumably upon a statement of the existing facts, the company made another indorsement on the policy, in these words:

“George E.. Nichols is now recognized as owner of this policy, and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided.
“Dated at N. Y. City, Dec. 27th, 1892.”

This indorsement was obtained and made without the knowledge of Hr. Nichols at the time it was made. Its obvious purpose was to keep the policy in full vigor for the benefit of Hr. Lockwood, to whom the loss, if any, was made payable by the former indorsement. Courts are bound to construe such indorsements in such manner as to give them full vigor and effect for the purposes for which they were made and intended. In my judgment, the manifest intent in this instance, was to keep the policy in full force for the benefit of all concerned, as security for the payment of the mortgage held by Hr. Lockwood, and that necessarily involved the benefit of the property owner. It is shown that, at the time of the making of this indorsement, Hr. Nichols, the purchaser of the property from Smith, did not know of the indorsement then made on the policy, and is, of-course, not chargeable with any misrepresentation,’ if any were made; but it is not alleged or claimed that there was any fraud or misrepresentation on the part of any one. On the 22d day of December, 1892, Nichols (who had entered into possession of the property purchased from Smith, and was engaged in making repairs, etc., but had not yet received a conveyance) applied to the Liverpool, London & Globe Insurance Company for insurance on the buildings, and obtained a policy in the sum of $3,500 on the.dwelling, and $1,500 on the stable, which policy was in full effect when the insured property was destroyed by fire. This insurance, it will be observed, was obtained by Nichols five days before the indorsement last above set forth was made by the defendant upon the Lockwood policy. The original policy of defendant contains a clause in these words: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or. procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.’* Such a condition is to be strictly construed, because of its severe-nature, as a penal one. It will be observed that it only applies-by its terms to “the insured;” that is, the person actually occupying the position of “the insured” under defendant’s policy at the time the policy issues, or at the time the additional insurance is taken. On the 22d day of December, 1892, Nichols occupied no such relation to the policy held by Lockwood as “the insured.” He wTas then no party to the contract, though he might be incidentally benefited by it if a loss had occurred and been paid by the company to Lockwood under the indorsement then existing on the policy. What his equities may have been, if any, in that regard, is not shown. But it does appear with absolute certainty that on.the 22d day of December, 1892, when he took out the policy of the Liverpool, etc., Company, he was not “the insured” under the policy of defendant. No forfeiture could therefore attach by reason of the act of Nichols in taking the new insurance, nor could the rights of Lockwood be destroyed or impaired by such act on his part under the then condition of the policy. But if it be granted that the indorsement, made by the company five days afterwards on the policy, recognizing Nichols as the “owner of the policy,” put him at that time in the position of “the insured,” that could not operate to make him “the insured” as of the date when lie took the Liverpool insurance, because, the law will not give any such retroactive effect to the indorsement for the purpose of destroying thé policy. Such an effect is never given to such acts for the mere purpose-of destruction, though often given when necessary for the purpose of preserving from that of similar consequences. What the company did, therefore, in recognizing Nichols as owner of the policy, as well for his benefit as the benefit of Lockwood, the mortgagee and holder, must be construed to make Nichols “the that relation for the purpose of annulling the policy under the insured” as of that date, if at all, and not as bringing him into-clause now considered. If Nichols at that time became “the insured,” the only consequence would be his responsibility as such for, future breaches on his part, if any occurred, of the provisions of the policy. The gravest injustice would result from-regarding him as “the insured” five days before the company consented to regard Mm as the owner of the policy, and holding that by the very act of so accepting Mm the company entitled itself to nullify its policy for something done by him before he became “the insured,” or had been accepted as the owner of the policy. In my opinion, therefore, Nichols was not “the insured”' under the policy in suit when he took the insurance in the Liverpool Company, and that his act in taking that insurance did not vitiate the defendant’s policy, and that the consent of defendant to regard him as the owner of the policy, by the indorsement subsequently made on the policy, had no other effect than to bring him into such relations as those recognized and accepted by the defendant afterwards, when it received from him and retained the proofs of loss required by the policy to be made by the party entitled' to the insurance.

But another answer to this defense is found in the fact that when Nichols took his policy in the Liverpool, etc., Company,, he liad ail insurable interest in the property by reason of his contract with Smith of purchase and sale, and agreement to convey at a fixed day, accompanied by possession, etc. That policy must be held to attach to such insurable interest, and not to be within the clause of defendant’s policy now under consideration. In Adams v. Insurance Co., 9 Hun, 45, one of the defenses was that plaintiff could recover, if at all, “only pro rata with another policy; that is, two-thirds of the amount of loss.” The court held that other insurance mentioned in such a clause “does not include an insurance made by a mortgagee upon his interest as such” (Id., 48); and the court cited with approval, amongst other cases, Acer v. Insurance Co., 57 Barb. 68. In that casé the language was: “The plaintiff’s policy has this condition: ‘If the assured, or any other person or parties interested, shall have existing’, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire, on the property hereby insured, not consented to by this company,’ etc., ‘then this insurance shall be void and of no effect,’ etc. This is a general provision, and the question is whether the ‘other persons or parties interested,’ specified in the condition, refers merely to parties interested in the plaintiff’s insurance, or to other parties who may have a different interest in the property from that held and owned by the plaintiff, and who may obtain insurance upon their interests in the same property. I am clearly of the opinion that the condition is limited to the former class, and that it was not the understanding or intention that any other person who might have a separate interest in the property, and not connected in interest with the plaintiff, and having no interest in his insurance, might avoid the plaintiff’s contract by obtaining an insurance of his own interest in the property without the plaintiff’s knowledge dr consent. * * * I think the interpretation I have adopted is not only in consonance with justice, but with the rules of language. By this rendering, 'the parties interested’ is construed to mean those interested with the plaintiff in his contract, instead of outside persons who might have some distinct and separate interest in the property. The same construction was given to similar language in the case in 12 and 16 Wend. (Tyler v. Insurance Co., 12 Wend. 507; 16 Wend. 385), before cited, and also in Insurance Co. v. Hone, 2 N. Y. 235. In that case such words were held to apply only to a double insurance of the same interest.” The question in that case, it would seem, was quite analogous to the one now under consideration, and the court there held that the plaintiff’s policy in that case was not affected by a policy issued to one Curtiss, to whom the plaintiff had contracted to sell the property. Curtiss occupied the same relation to the property in that case as that in which Nichols stood at the time he took the insurance in the Liverpool Company. The case of Adams v. Insurance Co. was afterwards affirmed by the court of appeals (70 N. Y. 166), the court distinctly concurring with the opinion of Judge Learned oh the question now under consideration. The case of Sanders v. Cooper, 115 N. Y; 279; 26 St. Rep. 272, is not hostile to these views. The main question in that case was as to the effect of a provision avoiding the policy in suit if a prior insurance existed when it was issued, and that fact was not disclosed. The effort was to avoid the effect of that condition, when it appeared that there was a prior insurance, by showing that the agent who took the policy “was put upon inquiry, or might by the exercise of diligence have ascertained the truth” as to the existence of such former insurance. The court held that this was no answer to the defense. No such question is in this case. Another defense in that case was that the building burned was not the one described in and insured by the policy. The court held it not competent to show that the building destroyed was the one intended to be described in the policy, and that by mistake another, which was not intended to be insured, was the one described. The contract was held to be conclusive upon that question. I am at a loss to see any controlling bearing of that case upon the case now under consideration. Nor, in my opinion, is the case of Moore v. Hanover F. Insurance Co., 141 N. Y. 219; 56 St. Rep. 801, decisive of the questions here involved. In that case the court held that notice to an agent that an action of foreclosure of a mortgage of the insured premises was about to be commenced, and his verbal assent thereto, did not constitute a waiver of a provision of the policy in a case where the policy provided that “no officer, agent, or other representative * * * shall have power to waive any provision or condition of this policy, * * * unless such waiver, if any, shall be written upon or attached hereto.” If this case be within the ruling of the court in Moore v." Insurance Co., my duty is very plainly to follow and apply the ruling in that case, which I should certainly do, for two reasons: First, because it is the decision of -the court of last resort; and, second, it is manifestly correct in law. The difference between that case and the present is that the waiver or change in the policy alleged in that case was not indorsed upon the policy as required by its plain terms. In this case the indorsements upon the policy were made by a competent officer, and the question is upon the effect, force, and meaning* of such indorsements. If the indorsements can be legally or equitably construed to sustain the alleged liability of the defendant for the loss of the property insured, in my judgment, they clearly ought to be so construed. Their construction must be made in the light of the surroimding circumstances, and with a A'iew to seeing what the parties inténded to accomplish by them. When the first indorsement was made, to wit., that of August 18, 1892, Lockwood, the insured owner of the property, had sold the same to Smith, but wished to keep the policy alive and in full force, so that Smith should be its owner, but in case of loss it should be first payable to himself, as mortgagee, as his interest might appear. To carry this desire of Lockwood into effect was manifestly the purpose and intent of the indorsement, both on the part of Lockwood and of the company. Examine carefully the language of the indorsement:

“Warren E. Smith is now recognized as owner of this policy and the property mentioned ás insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided, and loss, if any, first payable to Hanford Lockwood, mortgagee, as interest may appear. Twenty thousand dollars incumbrance is hereby permitted. “Dated at N. Y. City, August 18th, 1892.
“C. Patterson & Son, Gen’l Agents.”

ETo question is made that this indorsement is not to be deemed the act of the company. It is, therefore, the defendant’s act, and it is to be carried into effect by the court giving* to it such construction as will fully accomplish its manifest intent and purpose. If to do so requires changes in the policy, consistent with law and competent for the parties to make, they are to be made, or to be deemed made, as the legal rights and the equities of the parties require. Lockwood is to be recognized and deemed, not as owner, any longer, but as mortgagee of the insured property, which may be incumbered by the present owner to the amount of $20,000; a mortgage to that amount, doubtless, then covering this, with other parcels of land. Smith is to be recognized as the legal or equitable owner of the policy, subject, of course, to Lockwood’s right to receive the loss, if one occurs; and the insurance is to remain mutatis mutandis, as though originally made in that form. All rules and conditions of the policy are kept in full force, except as necessarily modified or changed by these new relations. Afterwards ETichols became a purchaser of the premises from Smith, subject to the mortgage of Lockwood. He entered into possession under his contract of purchase, and commenced making repairs. His contract of purchase gave him immediate possession as owner, but the conveyance was to be made to him at a later date, which happened to be a short time after the fire. When these things occurred, Mr. Lockwood again applied to the general -agents of the company, who made this indorsement upon the policy:

“George E. Nichols is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless,to all the rules and conditions of this policy, none of which are hereby waived or avoided.
“0. PATTERSON & SON, G’l Agents.”
“Dated at N. Y. City, Dec. 27th, 1892.

This was done at the request of Mr. Lockwood, still holder of the mortgage secured by the policy, with the full assent of the company. There was no intent to deprive Lockwood of that security, or his rights under it, but, on the contrary, to maintain and protect his rights, and his title to receive payment of any loss that might occur. Its legal and equitable effect and object were to recognize the change of ownership, legal or equitable, of the assured property, in such form and with such force as should continue the policy as a valid instrument, notwithstanding, and subject to, the change in ownership of the property, and in the relations of the parties to it and towards the policy. The purpose was to keep alive the insurance in full force and effect for Lockwood as mortgagee, and Nichols, the new purchaser, notwithstanding the changes made in the ownership of the property. This new consent was procured by Lockwood, and delivered to him. Its purpose was to have Nichols substituted,, as owner of the property and of the policy, for Smith, and to maintain in full vigor the rights of Lockwood as mortgagee, entitled to receive the proceeds in case of loss, and whatever stood in the way of those objects was to be modified or removed, so that the intended purpose would be accomplished. No deception was practiced to' mislead or deceive the defendant, on the part of either of the persons concerned. It has already been shown that Nichols had previously applied and taken out a policy in another company for the sum of $3,500, before he became the owner of the defendant’s policy with its consent, or had any legal right therein as the insured in law or equity. This act could not avoid the policy of defendant, of which Smith had been, by the Company’s consent, made owner, with loss, if any, payable to Lockwood. The act of Smith in contracting to sell to Nichols the insured property did not and could not operate to make Nichols the insured. lie held the property only by contract of sale and purchase, to be consummated by subsequent conveyance, and the indorsement of the company, recognized him as owner of the property and policy, is satisfied by the equitable relation and ownership, since the sole purpose was to keep in life and vigor the right of Lockwood to receive as mortgagee the proceeds of any loss. If the indorsexnent on the policy did not have that effect, it had none, hut left Lockwood’s rights under the first indorsement in full force, unimparied by any act Nichols had done, either in taking out the policy in the Liverpool Company, or in making the contract of purchase and sale. There was therefore no such breach of conditions of the policy, either by Lockwood or Smith or Nichols, as justified the defendant in refusing to pay the loss.

Another defense sternuously urged is that the proofs of loss were not served on defendant by the proper party. The policy requires such proofs to be served by the insured within a prescribed period. In due season the proofs of loss were served by Nichols. These proofs were kept and retained without objection that they were not served by the proper party, or were not proper in form or substance. Under the circumstances of the case, I feel bound to hold that the defendant is estopped, by receiving and keeping these proofs from Nichols, in the manner and form shown, from asserting that they were not served by the proper party, or that Nichols did not occupy a relation to the company which entitled him to make whatever service of proofs of loss were requisite to give his claim a standing a court under the policy. The company, by its own act, had put Nichols in a position where his equitable rights were, in my opinion, such as entitled him to serve the proofs. So far as affects this question, the company had made Nichols “the insured” when they recognized him as “owner of the policy and property;” the loss, if any, to be. paid upon the obligation of Lockwood, which he had assumed, and which was a lien on the insured property. Nichols was also the assignee of all the rights of Lockwood to recover in this action, and may, as such assignee, assert all those rights. Ilis own rights were so connected with those of Lockwood that his action in making and serving proofs of loss, under the circumstances, Lockwood could assert, under the consent of the company indorsed on the policy, as a basis of his own right to collect the loss. Under such circumstnces, the company is estopped from asserting that the proofs, etc., were not served or made by a proper person. If they had been refused or returned in proper season on any ground of that kind, they could have been renewed by another party also in interest.

If these views be right, the defense wholly fails in respect to the several questions discussed. It is insisted, however," that there was a fraudulent overvaluation of the loss sustained in the claim presented. This is a question of fact, upon the evidence. I am of opinion that such alleged fraud is not proven. The assured procured a valuation by competent persons, whose testimony shows that it was made in good faith. My finding upon the evidence must be against the alleged fraud.

The only remaining question is the amount plaintiff is entitled to recover. This question depends upon one already considered, to wit, whether the policy taken by Nichols in the Liverpool, etc., Company was upon the same interest insured to Lockwood. In its hearing upon another question, that point has already been considered. His policy was upon a different interest, and it seems clear that the company could not compel Lockwood, had he been plaintiff suing as mortgagee, to apportion his claim by any policy Nichols had taken in another company upon the interest he had acquired in the property. Nor do I.think that Nichols, on becoming, with the consent of the company, the owner of the policy issued to Lockwood, subject to Lockwood’s claim to receive any loss thereon, as mortgagee, subjected that policy to diminution under the clause relied uppn. That was not the intention of any of the parties, and is not the necessary effect or construction . of their acts. The plaintiff is assignee of Lockwood’s interests, as well as of those of Nichols in the Lockwood policy. He is entitled to recover the full amount, to wit, $6,000, and interest, amounting in all to $6,510, with costs. Judgment is directed accordingly.


author: BRADLEY, J.

text:
    Miranda Miller, Resp’t, v. Thomas S. Reynolds, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    I. Cobporatioft—Officer—Poweb:
    Where a person makes a note for and in the name of a corporation, there is an implied warranty on his part that he had authority so to do, and, if he is without such authority, he becomes liable upon such warranty for the damages resulting from the breach.
    3. Same.
    Such liability does not accompany the transfer of a note so made, unless the claim founded upon the warranty is also assigned to the holder to whom the note is transferred.
    8. Same.
    Such warranty inures to the benefit of the payee, where the note is given as part consideration of a conveyance of land, and is made payable to the wife of the grantor as a condition and in consideration of her joining in the deed and relinquishing her inchoate right of dower.
    4. Same.
    The officer of a corporation who,- by agreement with it, is given charge of its business and directed to pay from 'its proceeds all indebtedness of the corporation to himself, has, on purchasing land for himself, no authority to execute in payment a note in the name of the corporation, though the corporation then owes him more than the amount of said note and he gives it credit therefor.
    6. Tjuai.—Noftsuit.
    Where counsel moves for a nonsuit and for direction of a verdict, without requesting the submission of anything to the jury, the question of fact, is deemed to have been submitted to the consideration of the court.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    Eugene Van Voorhis, for pl’ff;
    E. A. Nash, for def’t.
   BRADLEY, J.

In February, 1891, Ransom H. Miller and the plaintiff, his wife,-joined in a conveyance to the defendant of certain real estate at the price of $22,000, and as part of the consideration the defendant executed and delivered a promissory note for $6,000, payable to the plaintiff on July 15th, and signed to it the name of “ Trotter Refrigerator Company, by T. J. Reynolds, Prest.’’ This action is founded on the charge that the defendant had no power or authority to make the note in the name of or for that company, and to recover, as the consequences, the damages sustained by the plaintiff. When he made the note there was an implied warranty on the part of the defendant that he had authority to do it for and in the the name of the company, and, if he was without authority to do so, he became liable upon such warranty for the damages resulting from the breach. Baltzen v. Nickolay, 53 N. Y. 467; Taylor v. Nostrand, 134 id. 108; 45 St. Rep. 397. Such liability, however, does not accompany the transfer of a note so made, unless the claim founded upon the warranty is also assigned to the holder to whom the note is transferred. Battle v. Coit, 26 N. Y. 404. As the title to the land was in Ransom H. Miller up to the time of such conveyance, it is urged that the plaintiff has no right of action upon such implied warranty of the defendant. This objection to her right of action might be effectual if she could have asserted no-interest in the land conveyed. But it seems that she declined to join in the conveyance, and thus relinquish her inchoate right' to-dower in the premises without receiving the consideration expressed in the note, and that it was taken payable to her as tfye consideration of the execution of the deed of conveyance to the defendant. In making the sale and conveyance in which she joined, the husband may be deemed to have acted in behalf of the plaintiff as well as for himself; and therefore liability incurred by the defendant upon such warranty may be deemed to have inured to the benefit of the plaintiff, and to have become available to her.

It is insisted on the part of the defendant that he had authority to make the note in the name of the company. This contention is founded upon the fact that he was president, and had been constituted the manager, of the company, and to that end a contract had beeen made between him and the refrigerator company, whereby he was given substantially the entire charge of its business up to January, 1892, with direction to pay from its proceeds a reasonable compensation to himself, not exceeding $100 per month, and t¿ pay and discharge as the indebtedness of the company due to him, or upon which he was in any manner liable as its surety. At the time of making the note the indebtedness of the company to the defendant exceeded the amount of it. And he gave evidence tending to prove that he credited the company with the amount of the note. The purchase of the real property of Miller by the defendant had no relation to the business of the company, and the fact that he gave it credit for the amount of the note did not charge it with liability upon the note without the adoption of it b}^ the company. This it did not do, but by the receiver of its property, afterwards appointed, the note was repudiated. It seems quite clear that the defendant derived from the contract before mentioned between him and the company no authority to make the note in question.

The defendant also claims that the note was paid by transfer made by him to Banson H. Miller of the property of the company, in part consideration -of which Miller agreed to surrender up the note. Barring all right of the plaintiff to withhold the note, it is not seen that the evidence requires the conclusion that Miller made any effectual promise to surrender the note in consideration of such sale or transfer to him. • Negotiation with that view was had between them, and a written bill of sale was made by the defendant in the name of the company to Miller of the property of the company at the price of $16,154.33, the amount due from the company to the defendant. After deducting from this the amount of the $6,000 note, and interest, there is left a balance of $10,046.33, for which Miller gave the defendant his notes. In the view taken of the case, it is not necessary to determine whether or not the defendant had, under his contract with the company, the right to make the sale which he undertook to make to Miller. The evidence of the latter is to the effect that the sale and purchase were not to be perfected unless the consent to it was given by certain stockholders of the company, and that they refused to consent to it, and advised Miller that the.defendant had no right to make it, and that thereupon Miller declined to complete the purchase, refused to deliver the $6,000 note to the defendant, tendered back to him the bill of sale, and demanded the surrender of the notes he had made to the defendant. While there was a conflict in the evidence upon the subject, there was that which permitted the conclusion that the sale of the properly of the company as between the defendant and Miller was not perfected by reason of the failure of the condition before mentioned upon which Miller had agreed to complete the purchase. The motion for nonsuit was therefore properljr denied, and, since the case was tried as presenting questions of law only counsel, having moved for nonsuit, and for direction of a verdict, without requesting the submission of anything to the jury, the question of fact must be deemed to have been submitted to the consideration of the court, and disposed of by it adversely to the defendant in directing the verdict rendered by the jury. Winchell v. Hicks, 18 N. Y. 558 ; Dillon v. Cockcroft, 90 N. Y. 649.

The amount of damages recovered was warranted by the evidence ; and there was no error to the prejudice of the defendant, in any of the rulings at the trial, to which exceptions were taken.

The motion for a new trial should be denied, and judgment directed for the plaintiff on the verdict.

All concur.


text:
    George Lallman et al., Resp’ts, v. Theron Hovey et al., App’lts.

      (Supreme Court, General Term,, Fifth Department,

      Filed December 28, 1895.)

    1. Evidence—Judgment.
    In an action on a judgment rendered in the supreme court, introduction of a certified transcript of the entry in the clerk’s docket is insufficient to prove the relation of llie parties.

      %. Appeal—First instance.
    But, if such objection is not distinctly taken, by a motion or otherwise, at the trial, the question is not available on appeal.
    3. Creditor’s bill—Hew parties.
    In an action by judgment creditors to set aside a conveyance for fraud, though it does not appear by the summons and complaint or either that the action is brought by the plaintiffs in behalf, not only of themselves, but of other judgment creditors similarly situated, who may choose to come in and share in the expenses and results, it is legitimate for the court to make an order to permit them to do so, with the consent of the plaintiffs.
    4. Appeal—First instance.
    The objection that a plaintiff, who has come into a case after issue joined, -tenders no pleadings, cannot be raised for the first time on appeal.
    5. Evidence—Lost instrument Secondary.
    The foundation of secondary evidence of the contents of a lost instrument, made by the testimony of a party to the action, was held to he sufficient, where a paper was produced and identified on the trial and after an adjourned hearing the defendant testified that he had not seen it since it was handed to his attorney when first produced, that he and the attorney have searched for it among the attorney’s papers belonging to the case and have been unable to find it, and plaintiff’s counsel admitted that defendant’s counsel was unable to find the paper and no suspicious circumstances appear in the evidence.
    Appeal from a judgment in favor of plaintiff.
    Edward T. Durand, for app’lts;
    E. O. Farrar, for resp’ts.
   BRADLEY, J.

The defendants are husband and wife. The plaintiffs, as judgment creditors of the husband, seek to set aside, as fraudulent against his creditors, conveyances of real property and a bill of sale of personal property made by him to the other defendant. After the commencement of the action, an order of the court was made to allow William P. Sherman, another judgment creditor of the defendant Theron Hovey, to come in as a party plaintiff. The action was founded upon an alleged judgment recovered in justice’s court by the original plaintiffs and docketed in the county clerk’s office. Sherman’s judgment was recovered in the supreme court. Executions upon the judgments had been returned unsatisfied. The only evidence as against the defendant Belle Hovey of the recovery of the judgment in the justice’s court was the docket of it in the county clerk’s office; and as no objection was taken to the omission to put in evidence the transcript of the justice’s judgment filed, and upon which the docket entry was made, the question whether that otherwise would have been essential is not here for consideration. Jackson v. Jones, 9 Cow. 182.

The only documentary evidence introduced to prove the recovery of a judgment by Sherman was a certified transcript of the entry in the docket book, kept for such purpose in the clerk’s office. This was insufficient to prove that he was a judgment creditor of Hovey. But as that objection was not distinctly taken, by motion or'otherwise, at the trial, the question is not available to the defendants on this review. If it had been raised during the trial, it is quite likely that the requisite evidence may have been supplied.

Although it does not appear by the summons and complaint or either that the action was brought by the plaintiffs in behalf, not only of themselves, but- of other judgment creditors similarly situated, who should choose to come in and share in the expenses and results, it was legitimate for the court to make an order to permit them to do so, with the consent of the plaintiffs. Edmeston v. Lyde, 1 Paige, 637; Parmelee v. Egan, 7 id. 610; Claflin v. Gordon, 39 Hun, 54.

The point now made that no issue was tendered by Sherman by any pleading on his part requires no consideration, because the question was not raised at the trial.

The defendants alleged that the conveyance and bill of sale in question were made and taken in good faith, and had. a valuable and adequate consideration for their support; and, on the trial, they, by their own testimony, gave evidence to the effect that one Mrs. Godsave held a mortgage made by Alexander Cully on certain real property, amounting to about $4,000 ; that she assigned the mortgage to the defendant Theron Hovey, her son, for the benefit of his wife, and with the direction that he collect the mortgage for and pay the proceeds to her; that, with the proceeds of that mortgage, she paid for the conveyances and bills of sale in question ; and that the husband, at the time of such assignment, executed an instrument in writing, drawn at the dictation of Mrs. Godsave. This instrument, early in the trial, and before the plaintiffs rested, was produced and identified by the defendant Belle Hovey, on her cross-examination, by the defendants' counsel. After this, and before the plaintiffs had put in all their evidence in chief, the further hearing was adjourned for about two months, when the trial was resumed; and", after the defendants entered upon the defense, the defendant Theron Hovey testified that, at the time the instrument referred to was so identified, it was taken and retained by defendants’ attorney, and that he and the attorney had searched for it among the papers of the latter in the case, and they had been unable to find the instrument ; and both of the defendants testified that they had not seen it since it was handed to and taken by their attorney, immediately following its identification, as before mentioned. It was admitted by the plaintiffs’ counsel that the defendants’ attorney was unable to find the paper. Thereupon the defendants offered to prove the contents of that instrument, and that they were to the effeot that Theron Hovey acknowledged that the Cully mortgage was assigned to him by Mrs. Godsave for his wife, and that he agreed to collect it, and pay the proceeds to his wife. Objection on the ground that the paper was the best evidence was sustained, and the defendants excepted. Although, at common law, the evidence of a party was not admissible for other purposes, it was competent to prove by him the loss of a paper the contents of which were sought to be proved by secondary evidence ; and the evidence of a party, when it embraced all the facts essential to the purpose, was deemed sufficient to prove the loss; and, while the question of the sufficiency of proof of the loss is for the court to determine, the discretion is not so broad as to fairly permit the disregard- of the evidence of a party on that subject, merely because he is such. Jackson v. Frier, 16 Johns. 193; Adams v. Leland, 7 Pick. 62; Woodworth v. Barker, 1 Hill, 172; Partridge v. Badger, 25 Barb. 146, 173; Supervisors v. White, 30 id. 72; Bridges v. Hyatt, 2 Abb. Prac. 449; Moore v. Livingston, 14 How. Prac. 14. The evidence of loss- of the paper was sufficient to warrant the proof of its contents, provided the fact of the existence of it was sufficiently showh. The execution of it by Theron Hovey was a fact to which, at common law, a person interested in the event of an action was not permitted to testify; and, although he can now do so, a less qualified discretion may be applicable to the determination by the court of the question of the existence or execution of a lost paper than can be reasonably exercised on the subject of the loss when, in terms, the evidence includes all the facts essential to prove the loss. The evidence of the defendants tended to prove the existence of the paper; and the objection to the reception of the evidence offered to prove its contents, on the ground simply that the instrument itself was the best evidence, would seem to import that, assuming its existence, the loss of it was not sufficiently proven to render the evidence of its contents admissible. On the subject of the loss of the paper and inability of the defendants to produce it, no suspicious circumstances seem to appear in the evidence; and whatever there may have been of suspicion arising from the evidence and the circumstances appearing on the trial as to the instrument had relation to its purpose, and the effect for which it was intended, and whether in fact it represented a bona fide transaction.

Those were questions to be disposed of by the referee in the consideration of the case upon the merits. Then credibility of the evidence of the defendants, in view of their interest in the event would properly be a matter for his determination. It may be that the result would have been the same if the evidence of the contents of the paper had been received; but, as that cannot necessarily be assumed on this review, the error in excluding the evidence upon the objection taken cannot be disregarded.

The judgment should therefore be reversed, and a new trial granted; costs to this appeal to abide the final award of costs.

All concur.


text:
    Perry D. Lindholm et al., Resp’ts, v. Jennie H. Kane, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Husband and . Wife—Liability for necessaries.
    A wife, known by the vendor to be such, is not liable for family supplies purchased while she is living with her husband, unless there is a special agreement on her part to pay for them.

      2. Same—Subsequent promise.
    A ¡Subsequent promise by her to pay for them as soon as she could, with the statement in connection that her husband is not at home at that time, does not render her personally liable.
    Appeal from a judgment of the county court, reversing a judgment of the justice’s court in favor of defendant.
    J. Relevan Curtiss, for app’lt;
    James L. Weeks, for resp’ts.
   BRADLEY, J.

The action was to recover the amount of a bill for groceries alleged to have been sold and, delivered to the defendant; also to recover a further sum for constructing a sidewalk on the defendant’s premises. The latter claim was not questioned. Nor was there any controversey had about the amount of the bill for groceries. The alleged liability of the defendant for them was denied and contested by her. The only question for consideration is whether or not the, evidence was sufficient to permit the conclusion that the defendant was personally liable for the grocery bill. She was a married woman, having a husband and children. The groceries were purchased for family use. These facts were known to the seller. The groceries were necessary for the family. And nothing appearing to the contrary, the presumption would be that such purchases were-made by the wife as the agent of the husband, and that he alone was liable to pay the bill. Kegney v. Ovens, 18 St Rep. 482; Winkler v. Schlager 64 Hun, 87; 45 St. Rep. 507. The wife, however, may, by agreement to that effect, charge herself personally with liability for necessaries purchased by her for the family of which her husband is a member. Laws 1884, ch. 381; Tiemeyer v. Turnquist, 85 N. Y. 516; Hallock v. Bacon, 45 St. Rep. 484. It follows that to charge the defendant with such liability, it was necessary to make it appear by evidence that she undertook to become so, and that the goods were sold to her on her credit. The evidence of the plaintiff Lindholm on the subject is: That in 1892 and 1893 the defendant purchased the groceries. That she came to the store in the first place, and sometimes the children came after the groceries. That some were taken away by them and some of them were delivered at the house. That he presented a statement of the account to her, and she said she was short of money; that she would pay it when she got the money ; that she would pay it soon. “Q. Any further conversation than you detailed this morning? A. 1 do not remember the details. If I remember,-I swore .thaf she said she didn’t have any money with her. Her’ husband was not at home then, but that she pay it as soon as she could. Q. At' any other time, did she make any statement in regard to her agreement to pay for the groceries except what you have stated, that you remember? A. No. Q. When you presented the bill to her, did she deny her liability for it at any time? A. No. Q. Did you ever have any talk in regard to who was to pay for the groceries ? If so, state. A. I did not.” That she made some payments on the account. The amount .pay by her the witness did not recollect. This constitutes the evidence on the part of the plaintiff bearing on the question, and the evidence of the defendant tended to prove that she did not purchase the goods oft her credit. It does not appear that when she ordered the goods the defendant, by an expression, indicated that she made the purchase on her personal credit, nor that she was informed by the seller that they were or would be furnished on her account, nor does it appear to whom the account as presented "to her was charged; and in fact the seller says there was no talk with her as 'to who was to pay for the groceries. The only fact, therefore, upon which the plaintiff can rely to charge the defendant is. that some time after the goods were sold and delivered she promised to pay when or as soon as she could, or when she got the money to do it. In that connection she said “her husband was not at home then, but she would pay it as soon as she could.” So far as appears, nothing had occurred at the time the groceries were purchased and delivered to repel the presumption that the defendant was acting as to the wife and in the agency of her husband, and at that time such was the inference. Strong v. Moul, 22 St. Rep. 762. The question, therefore, is whether the evidence on the part of the plaintiff tends to prove that anything occurred subsequently to permit the conclusion that the goods were sold and delivered upon any agreement or understanding between the seller.and the defendant that they were purchased, sold, and delivered upon her personal credit. This depends upon the effect which may be given to her promise, which the evidence on the part of the plaintiff tends to prove was made to pay for the goods. It may be that such promise would be some evidence of an agreement in the outset if nothing appeared to the contrary. That question, however, it is unnecessary to determine, since the evidence of the plaintiff Lindholm is that there was never anything said by or between him and the defendant “ in regard to who was to pay for the groceries,” and it does not appear that the goods were charged to her in the bill presented. Under such circumstances it is difficult to see anything to legitimately support the charge that the sale and purchase of the goods were made upon the agreement of the defendant to be personally liable to pay for them ; and, in the absence of such agreement or understanding, her promise must be presumed to have been made in the same relation of wife, and in the like exercise of her implied agency, as the transaction of ordering the groceries for the family. This conclusion the evidence requires.

In the cases where the wife, known by the seller to be such, has been held liable for family supplies purchased while she was living with her husband, the recoveries were supported by a special agreement on her part to pay for them and such agreement was held to be necessary for the purpose. The rule in that respect is not modified by the act of 1884. Tiemeyer v. Turnquist, 85 N. Y. 516 ; Hallock v. Bacon, 45 St. Rep. 484. The doctrine applied by the court of common pleas of the city of New York in Ehrich v. Bucki, 8 Misc. Rep. 118; 57 St. Rep. 540, is not contrary to the proposition before stated. That case, however, would be less liable to be misunderstood if the facts appeared more fully than they do in the report of the case. A different presumption arises when purchases are made having relation to the separate estate of the wife. In the present case the trial was before the justice and a jury. The justice charged the jury, and in his charge instructed them that there was not sufficient evidence to establish the fact that the defendant authorized the seller of the groceries to charge her for them. Exception was taken. This, -in practical effect, was the direction that the jury find for the defendant on that branch of the case; and, if there was any evidence to support, a verdict against her as to that alleged claim, his charge was error requiring reversal of the judgment rendered in the justice’s court, otherwise no legal right of the plaintiff was prejudiced by it. The view taken is that there was no evidence to permit recovery by the plaintiff against the defendant, and therefore there was no error to the prejudice, of the plaintiff in the charge of the justice to the jury. The question of the propriety of assuming by the justice the responsibility of instructing a jury and in directing a verdict requires no consideration.

The judgment of the county court should be reversed, and that of the justice court affirmed.

All concur.


author: Davy, J.

text:
    John H. Heller, Jr. et al., as Executors, etc., Pl’ffs, v. William Cohen, Def’t.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    L Deeds—Description.
    Every deed' of conveyance, in order to transfer a title, must, either in terms or by reference to other deeds, give such a description of the land intended to be conveyed as will be sufficient to identify the same with reasonable certainty.
    2. Vendor and purchaser—Marketable title.
    An incorrect description of land in a series of conveyances is not cured by a correct description in the'deed of a referee who sold the premises in a partition action, where the decree incorrectly describes the premises.
    3. Same.
    The mere fact that the grantee takes possession of the premises under the referee’s deed, and occupies the land for twenty years and upwards, does not, of itself, establish an adverse possession, as the extent of the holder’s adverse claim is measured by the decree under which the deed was given.
    '4. Same. i

    The court cannot make a title open to reasonable doubt a marketable title, by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right is vested.
    5. Same.
    A title resting on adverse possession which has not been adjudicated, is not marketable.
    6. Same.
    Where it is necessary to refer to parol evidence to supply the inaccuracies of the description appearing on the face of the deed, the record title is seriously defective.
    7. Same.
    A purchaser of real estate is entitled to a marketable title, free from liens, incumbraces and defects in the title, unless he expressly stipulates to accept a different title.
    8. Same.
    Title to real estate is not marketable, when so defective as to affect the" value oc interfere with the sale of the land, or has to require parol evidence to establish it.
    Action for specific performance.
    Bailey & Sullivan and Abram Stern, for pl’ffs;
    George H. Yeaman and Julius Lipman, for def't.
   Davy, J.

The parties to this action entered into a contract for the sale and purchase of real estate located on the south side of Grand street, in the city of New York, by the terms of which the defendant was to pay the sum of $100,000, of which sum $5,000 was paid at the time the contract was executed, and the balance was to be paid upon the delivery of the deed. When the deed was tendered, the defendant refused to accept it, on the ground that the title to the land was defective. The principal issue, therefore, raised by the pleadings is whether a marketable title has been tendered or not. The lot is described as “ beginning on the south side of Grand street, at a point distant seventy-five feet eleven and one-half inches westerly from the corner formed by the intersection of the southerly side of Grand street with the westerly side of Chrystie street; running thence southerly 125 feet one inch; thence westerly, parallel, or nearly so, with Grand street, twenty-five feet one inch ; thence northerly 125 feet three inches to the said southerly side of Grand street; thence easterly, along said southerly side of Grand street, twenty-five feet to the point or place of beginning,—the premises hereby intended to be conveyed being now known and designated as and by the street number 245 Grand street,’ as now built upon and inclosed.’’

One of the principal objections raised to the title by the learned counsel for the defendant is that in all of the deeds, from 1810 down to 1867, the description of the lot commenced seventy-five feet from the northwest corner of Grand and First streets (now Chrystie), instead of beginning at the southwest corner of said streets. It is conceded by the learned counsel for the plaintiff that the description of the land in the original deed is imperfect, and that it would locate about four-fifths of the land in question in Grand street. But he contends that a correct description can be spelled out sufficiently to locate the premises. He also contends that the errors and imperfect description of the lot in the original deeds were corrected in 1867 by the referee, who sold the premises in the partition action. It is a rule well settled that every deed of conveyance, in order to transfer a title, must, either in terms or by reference to other deeds, give such a description of the land intended to be conveyed as will be sufficient to identify the same with reasonable certainty. The description of the lot in the referee’s deed commenced at the southwest corner of Grand and Chrystie streets, instead of the northwest corner. This change, however, so far as it appears from the record, was made without any authority from the court. The decree which was the referee’s guide, directed him to sell and convey to the purchaser the land described in the petition, which commenced at the northwest corner of Grand and Chrystie streets. The deed that was given by the referee purported to convey to plaintiffs* testater the entire interest of the cotenants in the land in controversy. The serious objection to his deed is that it did tnot include the land which the court had authorized him to sell and convey. Whatever the effect of this conveyance may have been as to those who held title to the land, it certainly was not a good execution of the decree of sale. I am inclined to think that it was wholly inoperative as to to the premises in controversy. Scholle v. Scholle, 113 N. Y. 374; 23 St. Rep. 171. It was held in Laverty v. Moore, 33 N. Y. 658, that a conveyance under a decree of foreclosure cannot pass the title to land not embraced in the decree, though included by mistake in the description. People v. Bergen, 52 N. Y. 404. Where the deed conveys other property than the parties intended, or is void for uncertainty, a court of equity may reform it, so that it may conform to the intention of the parties; but a referee, without authority from the court, has no power to correct an erroneous description. In Cambrelleng v. Purton, 125 N. Y. 615; 36 St. Rep. 190, Judge O’Brien says that “ a purchaser wall not be compelled to take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment under which the sale was made.” Fleming v. Burnham, 100 N. Y. 1. The mere fact that plaintiff’s testator took possession of the premises under the-referee's deed, and occupied the land for twenty years and upward, did not, of itself, establish an adverse possession. Yeither did it amount to an ouster of the other cotenants, unless the possession was accompanied and followed by a hostile claim of title, of which all the cotenants had knowledge. Culver v. Rhodes, 87 N. Y. 353: Kneller v. Lang, 137 id. 589; 50 St. Rep. 643. Where title is asserted adversely by a person claiming, title founded upon a written instrument or a judgement or decree, it is a rule of universal application. that the extent of the claim must be measured by the instrument under which the claim is made. Crary v. Goodman, 22 N. Y. 170.

There is another serious objection to the title, and that is, if the defendant is compelled to take a deed of the land embraced in the contract, it will include nearly one foot of land of the western boundary, to which the plaintiffs have shown no record title, for which the defendant is required, by the terms of the contract, to pay about $4,000. The plaintiffs concede that the western wall is constructed a short distance west of the description contained in the referee’s deed, but they contend that plaintiffs’ testator was in possession of this strip of land for more than twenty years, and that no claim has been made to any portion of it. Title by adverse possession, where there is no disputed question of fact, and where the possession has been clear and undisturbed, may be upheld. This class of titles, however, are not looked upon with favor by trustees of savings banks and insurance companies, who take mortgages on real estate as security for the loan of money. In order to establish .title by adverse possession, it was incumbent upon the plaintiffs to show that the testator and his grantors held the land adversely and in open hostility to the true owners. It is not sufficient to hold it by their assent or permission, but it must be held in open hostility to their claim of title. The cotenants and the owners of the adjoining lots on the west are not parties to this judicial controversy ; therefore they would not be concluded by any judgment that may be rendered herein. Judge Andrews, in Fleming v. Burnham, 100 N. Y. 10, says:

“ A title open to reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested.”

The plaintiffs’ title, therefore, to at least a portion of the premises, must rest upon adverse possession; and whether all the statutory requirements have been sufficiently complied with to create a good title in the plaintiffs can only be determined by evidence aliunde. There may have been infants interested in the property, who were protected during the period of their disability, whose rights in the land have not yet been cut off. But, independent of the question of title by adverse possession, it is a rule of law that every conveyance should contain a sufficiently accurate description of the land and its boundaries, so that it may be identified. Where it is necessary to resort to parole evidence to supply the inaccuracies of the description appearing on fhe face of the deed, the record title must be regarded as seriously defective. While a deed may not be declared void for uncertainty as long as it is possible, by any reasonable rules of construction, to ascertain from its context what property was intended to pass, yet, if it is so defective and uncertain that the property cannot be located, its market value must necessarily be impaired. A close analysis of the description of the land in the original" deed will disclose the fact that the title is seriously defective. The description begins at a well-known point, which is capable of being ascertained, and runs thence, by courses and distances, around the lot, and ends at the place of beginning. The deed, therefore, could not in this action be contradicted or explained by parol evidence, and no extrinsic evidence tending to explain the mistake or intention of the parties could be resorted to. The northwest corner of Grand and Chrystie streets being an established natural monument the courses and distances must yield to it. Yates v. Van De Bogert, 56 N. Y. 226. In the case last cited Judge Grover says :

“ It is well settled that that which is most certain must control, and what is less certain must yield. Courses and distances must yield to monuments upon the premises, either natural or artificial.”

It was held in Drew v. Swift, 46 N. Y. 209, that where a description begins at a point capable of being ascertained, and runs thence by courses and distances well defined, no intrinsic evidence tending to explain the intention of the parties and thus give effect to the deed different from its terms, is allowable. The case of Brookman v. Kurzman, 94 N. Y. 274, cited by the learned counsel for the plaintiffs, is not controlling in this case, for the reason that it appeared upon the face of the deed that a mistake had been made in locating the starting point in describing the land intended to be conveyed. Chief Justice Ruger, who wrote the opinion of the court, says:

• “ It is impossible to mistake the location of the starting point of this description, which is thus not only correctly stated in the deed, but is also found to be in harmony with the location of all the monuments referred to therein, as well as the remainder of the ■description.”

A bad title is defined in 2 Bouv. Law Diet. p. 732 :

“To be one which conveys no property to the purchaser of an ■estate. A doubtful title is one which the court does not consider to be so clear that it will enforce its acceptance by a purchaser, nor so defective as to declare it a bad title, but only subject to so much doubt that a purchaser ought not to be compelled to accept it. A marketable title is one which a court of equity considers to be so clear that it will enforce its acceptance by a purchaser.”

The question, therefore, in this case, is not whether the title is absolutely good or bad, but whether it is clear, and free from reasonable doubt. It is an established rule of law that a purchaser of real estate is entitled to a marketable title, free from liens, incumbrances, and defects in the title, unless he expressly stipulates to occept a different title. It has been repeatedly held that a marketable title is" one that is free from reasonable doubt. Any defect, therefore, in the title that affects :the value of the land, or will interfere with its sale, is not a marketable title.

It was held in Moore v. Williams, 115 N. Y. 586; 26 St. Rep. 259, that:

“ A pui’cbaser is not bound to take a title which he can defend only by a report to parol evidence, which time, death, or some other casualty may place beyond his reach. * * * That a good title means not meaely a title valid in form, but a marketable title, which could again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudénce as security for, a loan of money.”

Ferry v. Sampson, 112 N. Y. 415; 21 St. Rep. 577..

In Irving v. Campbell, 121 N. Y. 354; 31 St. Rep. 307, Chief Judge Ruger say:

“ A purchaser will not be compelled to take a title when there is a defect in the record title which can be cured only by resorting to parol evidence.”

Vought v. Williams, 120 N. Y. 253; 30 St. Rep. 899.

The reasoning of the learned judge who wrote the opinion of of the court in Commissioners v. Armstrong, 45 N. Y. 248, was to the effect that:

“ When it is ascertained that" there is an existing defect in the title, the purchaser will not be compelled to perform on the aliegation that it is doubtful whether the defect will ever incommode him.”

In the case of Church Home v. Thompson, 108 N. Y. 618, Judge Peckham, in expressing the views of the court, says :

‘‘We think, if there was a reasonable doubt that the vendor’s title is such as to affect the value of the property, and to interfere with the sale of the land to a reasonable purchaser, the plaintiff’s cause of action could not be sustained.”

The vast amount of documentary evidence introduced by the plaintiffs is conflicting and contradictory as to the location and description of the premises. If a decree for the specific performance of a contract relating to real estate is to possess any value, the record should describe the land involved with accuracy and clearness that it can be identified, its quantity known, and its boundaries determined, beyond the possibility of future controversy.

In Jeffries v. Jeffries, 117 Mass. 184, the court held that:

“ A defendant in an action for specific performance of a contract ought not to be compelled to accept a title that is in the least degree doubtful; that he ought not to be subjected, against his agreement or consent, to the necessity of litigation to remove even a cloud upon his title.”

The record title to the land in question is so defective that it would, in my opinion, be very doubtful whether the trustees of any savings bank or insurance company, acting with reasonable prudence and caution, would take a mortgage thereon as security for the loan of money. Great injustice might be done to the defendant if he were compelled to fulfill the contract, and to take a deed of the premises.

Judgment, therefore, may be entered dismissing the complaint, and for $5,000, with interest thereon from the 1st day of February, 1893, together with the.costs of this action.


author: WHITE, J.

text:
    Lucinda King, App’lt, v. Lehigh Valley Railroad Company, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    Pleading—Sufficiency.
    A complaint by the widow of defendant’s employe to recover a share of benefit funds established by defendant and its employes, does not show any liability on the part of defendant, where it neither owns, controls nor manages the moneys constituting the fund, and there is no allegation that defendant has any money belonging to anybody in its possession.
    Appeal from an interlocutory judgment sustaining a demurrer to the complaint.
    Charles J. Oishei, for pl’ff:
    Martin Carey, for def't.
   WHITE, J.

The complaint states in substance: (1) That the defendant is a foreign railroad corporation operating a railroad in this city. (2) That the defendant has, in connection with certain' of its employes, established, and with them maintains by voluntary contributions made by it and" its said employes, a fund for the benefit of the widow of an employe who had subscribed tq the fund and is accidentally killed while in the discharge of his duty. (3) That the plaintiff’s husband was accidentally killed while in the discharge of his duty, and had subscribed to the fund. (4) That the defendant was a contributor to the fund in an equal to that contributed by all of its employes. (5) That the fund in question was, by agreement of all parties interested in it, kept in the custody of an officer of the defendant, and such officer, in connection with a representative of and chosen by the class of employes to which the plantiff’s husband belonged (in so far as the plaintiff is interested in it), managed the fund, and moneys from -the fund could be drawn only by the joint action of such officer of the defendant and such representative. (6) That by the terms of the agreement under which the fund in question is created and distributed the plaintiff is entitled to three-fourths of the amount of her husband’s contribution for every working day for two years from the time, of his death, to be paid monthly, provided she remains unmarried during that time. (7) That the -plaintiff’s husband was killed April 5,1894, and had contributed one day’s wages to the fund. It does not state what his wages were, or how much he contributed. The relief demanded is that -the plaintiff receive three-fourths of the amount of her husband’s contribution to the fund for every working day, to be paid to her monthly from the time of her husband’s death, with costs.

The action seems to have been commenced about July 27,1894, Assuming that the facts stated in the complaint would constitute a cause of action against the custodian of the fund in question,, and entitle the plaintiff to a judgment either for a certain sum, or establishing her right to receive a certain sum for two years from the time her husband was killed, providing she remains unmarried to my mind there is nothing whatever in the complaint showing a cause of action against the defendant. The defendant neither owns, controls, nor manages the moneys constituting this fund. There is no allegation that the defendant has any money belonging to anybody in its possession. The complaint shows that the money, if there is any, is held and mapaged by an officer of the defendant, to be sure, but that he cannot lawfully pay it out except upon an order in which a chosen representative of the class of employes to which the plaintiff’s husband belonged shall join in giving it. If the condition of things provided for by the tenth clause of Exhibit A attached to the complaint were shown to exist, a question very different from the one we are called upon to consider would be raised. Possibly, under such a state of affairs, if the defendant refused to reconize a j ust claim upon the fund, it might be said that, having exercised its right to take exclusive management and control of the fund, it should be held bound to distribute it in accordance with the provisions of the law; but until the defendant assumes that attitude it certainly cannot be said that it is liable to any contributor for the failure of the custodian of the fund -agreed upon by all interested in it to discharge liis duty. The plan under which the fund is created and disbursed does not take any notice of the relations which may happen to exist between a contributor and his family, except that the beneficiary must be the contributor himself, and in case of his death his widow is entitled to the benefits. The question, therefore, as to whether or not the plaintiff’s husband was living with or supporting or was under obligations to support her at the time of his death, would not seem to be material. The obligation on the part of those controlling it to pay from the fund in this case is plain, if there is money in their hands in which the plaintiff’s husband was interested at the time of his death.

The demurrer should be sustained, with leave to the plaintiff to amend her complaint.

All concur.


author: TITUS, C. J.

text:
    Nathan Elkan et al., App’lts, v. Charles Hitchcock et al., Resp’ts.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1894.)

    Accord and satisfaction—What is.
    There must be not only a tender of the thing agreed upon, but .an acceptance thereof; otherwise, there will be no accord and satisfaction of a liquidated claim.
    Appeal from a j udgment in favor of defendants.
    Wood & Gibbons, for app’lts;
    Platt & Sanger, for resp’ts.
   TITUS, C. J.

The plaintiff’s cause of action is for goods sold to the defendants. In their complaint they allege that on the 18th day of December, 1898, they sold and delivered to the defendants/ whisky of the value of $110.25; that $74.45 has been paid, leaving a balance due the plaintiff’s of $35.80. The answer denies the indebtedness, and alleges payment. It appears from the evidence that the goods were sold to the defendants, as alleged in the complaint, by one Slater, acting for the plaintiff’s on commission; that Slater was owing the defendants $35.80, for liquor bought at defendants’ place from time to time. It is claimed that Mr. Elkan, one of the plaintiffs, told defendants that if Slater got a little hard up, and wanted anything, to let him have it, and they would see that it was paid. At this time Slater was owing the defendants, for liquor bought at their bar, about eighteen dollars. After that the whisky was ordered by the defendants from the plaintiffs’ house in Philadelphia, and, at the time the defendants claim to have paid the bill, Slater was owing them $35.80, for liquor bought from time to time at the defendants’ saloon. The defendants sent to the plaintiffs their check for $74.45, together with the bill of Slater’s account, making the sum $110.25. The plaintiffs applied this sum on their account, and wrote the defendants that they had credited their account with the sum of $74.45, and claimed a balance of thirty-five dollars still due. It also appears that the defendants trusted Slater individually, thinking he would pay it.

This statement of facts is made up from the evidence offered by the defendants, and the judgment must be affirmed or reversed on this testimony, as the plaintiffs’ counsel now claims there was no evidence upon which a judgment for the defendants can be predicated. It is not claimed that the judgment can be sustained against the plaintiffs unless the transaction amounted to an accord and satisfaction. The agreement to pay Slater’s bill was void by the statute of frauds, and, under the excise law, no action can be maintained upon the bar bill of Slater either against himself or against these plaintiffs. Laws 1892, ch. 401, § 40. The only question, therefore, is, was there an accord and satisfaction? The doctrine of accord and satisfaction is well defined by the older cases. An accord is an agreement, consent, or concurrence of the minds and intentions of two or more individuals. It is an agreement between a party injuring and a party injured to make satisfaction-for the injury, which, when performed, is a bar to a recovery for the original claim. If A. is indebted to B. for an unliquidated amount, or is liable to him for any cause, and agrees to pay B. a specified sum, or to deliver to him some ascertained thing which B. agrees to accept in satisfaction of his demand, this is an accord; and, if the promise is performed by delivering and accepting of the thing agreed, this is a satisfaction, and bars action for the original cause. There must be an agreement between the parties, and acceptance by the one in whose favor the cause of action exists of the thing agreed to be delivered. The principle is that the party who has a legal right of action against another may accept of some other thing in discharge of his claim or demand ; and the agreement to deliver is the accord, and the acceptance thereof is a satisfaction. I have stated this rule in the language of various legal writers, for the purpose of showing the uniform understanding of it by the courts,—that there must not only be a tender of the thing agreed upon, but an acceptance; otherwise, there will be no accord and satisfaction. Anderson v. Turnpike Co., 16 Johns. 86; Booth v. Smith, 3 Wend. 66; Russell v. Lytle, 6 id. 390; Hawley v. Foote, 19 id. 516; Bank v. De-Grauw, 23 id. 342; Tilton v. Alcott, 16 Barb. 598; Nassoiy v. Tomlinson, 65 Hun, 491; 48 St. Rep. 182. In the latter case the . action was for a balance of commissions alleged to be due on the sale of real estate for the defendant. The defendant sent a check for $300, being at the rate of one per cent, on the sale, which plaintiff kept and credited on the account, but notified the defendant that he claimed five per cent. The court held it was no satisfaction of the claim, and, without the consent of the plaintiff, there was no accord and satisfaction; citing Fuller v. Kemp, 40 St. Rep. 672, and other cases.

There-could be no question in the case if the plaintiffs had accepted the account against Slater in payment of the defendant’s debt, but, as a matter of fact, there never was any agreement that the plaintiffs would pay the bill which Slater owed the defendants at the time the bill of goods was sold them, and never any acceptance of his bill in part payment of the defendants’ indebtedness. The facts here do not present the case of an unliquidated claim,. where the .debtor is permitted to pay the same, with, a condition that it is in fall payment of demand, and, if accepted by the-creditor, is held to be an acceptance of the lesser sum in full payment and satisfaction of the amount claimed. In the case before us the plaintiff’s claim was liquidated at $110.75. The case of Looby v. Village of West Troy, 24 Hun, 78, cited by defendants’ counsel in his brief, is of the same class as Fuller v. Kemp. The warrant drawn by the city and given to the plaintiff was in terms in full satisfaction of his claim ; and the court held, if he was not willing to take it in settlement of his claim, he should have returned it. The same may be said of Hills v. Sommer, 53 Hun,; 892; 25 St. Rep. 1003. The defendant sent the plaintiff a draft for an invoice of lemons, with the statement that it was “in payment of invoice as below ” ; and the court held that the plaintiff was properly nonsuited on the trial, that the claim was disputed, and if the plaintiff accepted a less sum than his claim, with the notice that it was in full payment, it constituted a valid accord and satisfaction. So in Brown v. Symes, 83 Hun, 159; 64 St. Rep. 266, the plaintiff made a claim against the defendant for $110, money loaned, and interest. The claim was disputed by the defendant, but the plaintiff insisted on payment. Finally, the defendant wrote to the plaintiff that he did not concede the claim to be a just one, but, rather than have further trouble, he “decided to send the inclosed check for $110, and will expect in return a receipt in full.” The check was drawn to the order of the plaintiff, “as full settlement of claim against me,” which the plaintiff retained, and collected the money. This was held to be an accord and satisfaction. It is not necessary to accumulate authorities on this subject. Much has been written, and from the earliest times the books are full of cases, upon this question, and the rule first above stated is still the law of this state. There is no accord and satisfaction of a liquidated claim without the consent of the creditor, and only in that class of cases where there is a dispute of the amount or justness of the claim, or one which falls within that class know as “ unliquidated claims,” have the courts held any other way. It follows, therefore, that the judgment below is erroneous, and should be set aside, and a new trial granted, with $1(> costs and disbursements to abide the event of the action there.

HATCH, J., concurs; WHITE, J., dissents.


author: TITUS, J.

text:
    Isaac Davis, Pl’ff, v. Grand Rapids Fire Insurance Company, Def’t.

      (Buffalo Superior Court, Special Term,

      Filed December, 1895.)

    Costs—Motion for new trial.
    Where the moving papers asked for a new trial on the ground of newly-discovered evidence and for “ such other or further relief that may be just,” the motion for anew trial is one on a case within section 3251 of the Code.
    Motion to tax the costs as on appeal under section 3251, relat-. ing to costs on a case and exceptions.
    M. Shire, for pl’ff;
    Sprague, Moot, Sprague & Brownell, for def’t
   TITUS, J.

This action was brought upon a fire insurance policy, and resulted in a verdict for tho plaintiff. After the verdict the derendant moved for a new trial on the minutes of the judge, which was denied. A motion was then made at the special "term upon affidavits and “upon a case containing exceptions as settled herein” for a new trial upon the ground of newly-discovered evidence, * * * and for such other or further relief as may be just.” The plaintiff insists that he is entitled to the same costs as upon an appeal under the provisions of section 3251 of the Code of Civil Procedure, while the defendant contends that he is entitled to but $10, costs of the motion. Cases involving facts very similar are cited by the respective counsel. In Perkins v. Brainard Quarry Co., 11 Misc. Rep. 337; 65 St. Rep. 417, the general term of the court of common pleas held that, where a motion was made at special term for a new trial on the ground of newly-discovered evidence based upon affidavits and a case made and settled, “ it must be regarded as having been made oh a case within the purview of the above-cited provisions of the Code.” In the case of Hosley v. Colerick, in the special term of the supreme court, reported in 9 Civ. Proc. R. 43, it was held, upon a state of facts precisely the same as in. Perkins v. Quarry Co., that the plaintiff was not entitled to costs under this section of the Code; Judge Childs, in his opinion saying: “ The whole office of the case on such a motion is to enable the court, by' an-inspection of the same, to ascertain whether the newly-discovered, evidence, as disclosed by the affidavit, is cumulative.” These two cases cannot very well be reconciled. Upon the same state of facts the two decisions are wholly at variance. If the defendant’s motion for a new trial upon a case, then it is conceded that he would be entitled to costs. But the defendant claims that his motion for a new trial was simply on the ground of newly-discovered evidence, and that the case was presented to the court to determine that question alone. I think it unnecessary to decide which of the above cases expresses the true rule where the moving papers ask for a new trial on the ground of newly-discovered evidence alone, because in the case before me the defendant in its moving papers, in addition to asking that a new trial be granted it on the ground of newly-discovered evidence, asks for such other or further relief as may be just; thus putting upon the plaintiff and the court the burden of an examination of the case, to see whether there was not some error committed on the trial which would warrant the court in reversing the judgment and granting a new trial upon that ground. I think the cases above cited are clearly distinguishable from the facts presented on the application. Here the defendant asks for further relief, and the court would be authorized to grant it if there was any error is the record warranting it. It seems to me, therefore, that the plaintiff is entitled to costs as on a motion for a new trial on a case, and the clerk is instructed to tax the plaintiff’s costs accordingly.