text:
    Ida Niggli, App’lt, v. Frank X. Foehry et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Pleading—Answer—Accord and satisfaction.
    The defense of accord and satisfaction cannot be proved unless pleaded,
    Appeal from a judgment entered on a verdict in favor of de fendants, and from an order denying a motion for a° new trial,, made on the minutes of the court.

      Richard E. White, for app’lt; P. Chamberlain, for resp’ts.
   Lewis, J.

This action was brought to recover the value of a quantity of building stone, which it was alleged in the complaint the defendants had quarried and taken from the plaintiff’s premises in the city of Rochester, without her consent. It was a disputed question of fact upon the trial whether the defendants had taken any stone from the plaintiff’s premises. The defendants owned lands adjoining the plaintiff’s lot, upon which there was a. stone quarry, which they were engaged in working. It was the claim of the plaintiff that, in quarrying stone, they trespassed upon and took stone from her premises. The plaintiff’s evidence left the question as to the quantity of stone taken, if any, in very much doubt. The evidence of the defendants tended to negative the plaintiff’s evidence as to their having taken stone from her premises. It was,a question of fact for the jury, and they found for the defendants.

It was not competent for the defendants to prove an accord and satisfaction, for no such defense was pleaded. There was evidence admitted tending to prove an accord and satisfaction. It does not appear from the case that there was any objection made to the admission of this evidence. The plaintiff introduced evidence tending to prove that the removal of the stone by the defendants ..lessened the market value of her premises. There was no allegation in the complaint which justified the litigation of that question, but, the plaintiff having introduced such evidence, it was competent for the defendants to prove the value of the stone in .the quarry before it was quarried, as bearing upon the question whether the market value of the premises had been lessened by the removal of the stone.

The error in the charge to the jury as to the measure of damages was fully corrected by -the subsequent charge of the court at the request of the plaintiff’s counsel. The true rule of damages was finally presented to the jury, so plainly that it is not at all likely that they were misled by the error in the charge.

The judgment and order appealed from should be affirmed.

All concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    George W. Crouch, Resp’t, v. Trimby and Brewster Shoe Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Lease—Renewal.
    The tenant, under a lease for a term, with privilege of renewal for a like term on notice, was held, upon the facts and circumstances of this case, not to have elected to extend the original lease for such additional period.
    Appeal from a judment entered oñ a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
    The defendant was a corporation engaged in manufacturing boots and shoes in the city of Rochester. The plaintiff leased to the defendant by written lease dated on the 1st day of April, 1890, the third floor of a building in the city of Rochester for the term of two years from its date, at an annual rental of $800, to be paid in equal monthly installments. The lease gave to the defendant the privilege of renewal thereof for an additional term of two years from March 31, 1892, upon the same terms and conditions, by notifying the landlord to that effect on or before Februuary 1, 1892. The defendant entered into possession of the demised premises, and, its business having increased so that it needed more room, it entered into negotiations with the plaintiff at the close of the first year of the lease for the second floor of the building. It was agreed between the parties that the plaintiff should make such changes in the rooms that they could be occupied together. The changes agreed upon were the connecting of the two rooms by a .stairway, and the changing of some partitions. It was agreed that the lease of the two floors should be for the term of three years from the 1st day of April, 1891, at an annual rental of $1,600, payable in monthly installments, and that a written lease should be prepared and executed by the parties. The plaintiff caused one to be prepared for both floors, according to the terms of the agreement, and delivered the same to the defendant. It was, however, never executed ; but the required changes were made, and the defendant entered into occupation of the second floor, and continued .to occupy and pay rent for the two floors until the 1st day of March, 1893. It then vacated the premises. No notice was ever given by the defendant of its election to exercise the privilege of continuing the first lease for the additional two years. The reason assigned by the defendant for leaving the premises was that the plaintiff had leased the first floor of the building for a business which the defendant considered to be hazardous, and which it was claimed increased the danger of the building being destroyed by fire, and increased the cost of insurance. The plaintiff claimed to recover under the first lease for the use of the third floor for the. months of April, May, June and July, in the year 1893, the sum of $265.68 ; and for a second cause of action a like amount for the use of the second floor of the building. ■ At the close of the plaintiff’s evidence the court directed a nonsuit as to the second cause of action, and denied the defendant’s motion for a nonsuit as to the first cause of action. The defendant duly excepted, and at the close of the evidence renewed its motion for a direction of a verdict upon the ground that there was no evidence of a renewal of the first lease. The motion was denied, and the defendant thereupon asked to go to the jury upon the questions whether there was a surrender of the lease of the third floor upon the 1st of April, 1891, and whether the defendant ever elected to continue in occupation of the third floor after the expiration of the two years mentioned in the written lease, and whether there was an eviction of the defendant from the premises.. The motions were denied, and the defendant duly excepted, and the court thereupon directed a verdict for the plaintiff for the sum of $208, and the defendant duly excepted.

      J. B, M. Stevens, for app’lt; E. F. Turk, for resp’t.
   Lewis, J.

The only question presented by this appeal that merits consideration is whether the defendant, by continuing in the occupation of the third floor in the manner stated, after the expiration of the two years provided for in the written lease, must be held to have waived the necessity of giving the formal notice provided for by the terms of the written lease, and thereby extended the term for two years after the 1st of April, 1892. The general rule contended for by the plaintiff is that a tenant occupying premises under a lease containing the provision as to extension of the term like the one in suit, who continues to occupy the premises after the expiration of the term with the consent of the landlord, paying the rent as it accrues, is held to have waived the necessity for giving the notice, and is bound for the additional time. But has that rule any application in this case ? Here the tenant, before the time fixed foi\giving the notice had arrived, determined that the one floor would not accommodate its business, and so informed the plaintiff. Had it'not been able to obtain the additional room, there is nothing in the case justifying the conclusion that it would have availed itself of the privilege of continuing the term of the first lease. The evidence negatives any such claim. The premises first leased had been altered by changing the partitions and connecting-the two rooms by a' stairway, and thereafter both floors were occupied under the new arrangement for the increased rental, which happened to be just twice the amount called for by the first lease. We fail to find any evidence justifying the inference that the defendant ever elected to avail itself of the right to extend the term of the first lease, or that the landlord supposed it was to be extended. By continuing in the possession of both floors after the termination of the first lease, the defendant became a tenant at will. The first lease, by its terms, expired with the month of March in the year 1892, and unless it was extended -by the parties thereto for the additional two years the defendant was not liable under its provisions. The question is not whether the conditions of the first lease were changed or modified by the verbal contract for the two rooms; that is not the claim of the defendant; but the question is, was the lease renewed for an additional term of two years ? The court, we think, erred in directing a verdict for the plaintiff, and the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.


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    Percy P. McPhail, Resp’t, v. Leander Ridout et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Venue—Convenience oe witnesses.
    An affidavit, to change the venue for the convenience of witnesses, must state the reasons for affiant’s belief that the witnesses named are material and necessary.
    Appeal from on order denying a motion for a change of the place o£ trial for the convenience of witnesses.

      E. A. Nash, for app’lts; William A Sutherland, for resp’t.
   Lewis, J.

The action was brought upon two promissory notes made by the defendants, payable to the order of E. Bennett & Son. It was alleged in the complaint that the notes were transferred by the payees before maturity to one John P. Johnson, a banker at Highland, Kan., for a valuable consideration and without notice, and by Johnson transferred to the plaintiff for value. The place of trial was laid in the county of Monroe. The answer óf the defendants denied the execution and delivery of the notes, and alleged that they were without consideration, and were obtained from them by fraud and misrepresentation, and that Johnson did not purchase the notes before maturity, and did not pay value for them, and took them with notice of the fraud, and that the plaintiff obtained possession of the notes after they became due and payable. All the transactions relative to the alleged making and delivery of the notes took place in the county of Cattaraugus. The defendants, upon the pleadings and affidavit of the defendants, moved to change the place of trial to Cattaraugus county. The motion was denied, with §10 costs, to be paid by the defendants to the plaintiff, but with leave to the defendants to renew the motion upon new affidavits. We are not advised by the record upon what ground the motion was denied, but assume that it was for the reason that the moving papers were defective in not stating the reasons for the belief of the affiants that the persons named were necessary and material witnesses for the defendants. The plaintiff, with a view of defeating the defendants’ motion, made and filed a written stipulation admitting the truthfulness of .the allegations of the defendants’ answer as to the notes having been procured by means of false and fraudulent representations, and that they were signed by the defendants in reliance upon the truth of such representations. It is the defendants’ contention that the stipulation was not sufficiently broad; that it did not admit some material facts which they could prove by the Cattaraugus witnesses, and they call attention to the failure of the stipulation to admit that C. W. Leggett and E. C. Mobles were the duly-authorized agents of E. Bennett & Son,—the payees named in the-notes; and also to the allegation in the defendants’ answer wherein it is alleged upon information and belief that during the moaths of April and May, 1890, C. W. Leggett and E. C. Nobles, the duly-authorized agents of E. Bennett & Son, made certain false representations to the defendants, and to the clause in the moving affidavit “that Fred Smith, Charles 0. Boutelle, Stephen M. Herrick, Eichard C. Dunn, and Milton E. Childs are necessary and material witnesses, because they heard the statements and representations of said Leggett and Nobles, because they know that said Leggett and Nobles were the duly-authorized agents of said Bennett & Son.’’ It is nowhere stated in said affidavit upon what facts the affiants base their allegation that said witnesses heard the representations mentioned, or knew of the agency of Leggett and Nobles. At most,- the statement in the affidavit amounted to the expression of an opinion of the affiants as to the knowledge possessed by the witnesses. Had it been stated that the affiants had conversed with the persons named, and had been informed by them that they would testify to facts showing or establishing the agency, or had the affidavits of the alleged witnesses been produced, showing the facts upon which their knowledge was based, a better ground for the motion would have been shown. Like defects appear in every part of the affidavit where the affiants assume to state the reason why the persons named would be necessary witnesses. Our particular attention is called by the appellants’ counsel to the statement in the affidavit as to the witness Fred E. Johnson, as follows:

“The said Fred E. Johnson, that at the time the said notes are alleged in the complaint herein to have belonged to and been owned by this plaintiff or the said John P. Johnson, they were owned by the said E. Bennett & Sons, and were not in possession of either the said plaintiff or the said John P. Johnson.”

The counsel claims that Johnson is certainly shown to bé a highly necessary and important witness for the defense. There is nothing that precedes or follows the clause above quoted which adds any strength to it. It wholly fails to show that he is a necessary witness. The motion was undoubtedly denied because of these radical defects in the moving papers. The defendants should have availed themselves of the clause in the order permitting a renewal of the motion upon new affidavits.

The appellants complain of the clause in the order imposing upon them $10 costs of the motion. (The costs upon such motions are sometimes made to abide the event of the action.) But the motion being denied for the reason that the moving papers were radically defective, the defendants were properly required to pay costs of the motion ; especially so, as they were permitted to renew the motion upon new affidavits. The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


author: Haight, J.

text:
    Herbert Beattie, as Executor, etc., Resp’t, v. Henry C. Beattie et al., as Administrators, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Principal and agent—Presumption.
    It -will be presumed, that an agent, who collects money for his principal, has duly paid it over and accounted for it.
    Appeal from a judgment in favor of plaintiff.

      Frank Rice, for app’lts ; J. H. Metcalf, for resp’t.
   Haight, J.

It appears that in the month of January, 1888; the defendants’ intestate, Jane Beattie, entered into a contract with the plaintiff’s testator,-William Beattie, wherein she agreed that if he would supply her with a home in his family, and would furnish her with board, care, and attendance, he should be well paid for the same by her; that pursuant to such agreement she went to reside in his family in the forepart of January, 1888, and thereafter made her home with him until her death, on the 28th day of May, 1892 ; that during that time she was supplied with a comfortable room, and with such board, care, and attendance, including her washing, as was necessary and suitable for a person in her condition and circumstances; that at the time she took up her residence with the plaintiff’s testator she was about 88 years of age, and somewhat infirm, but for a period of about 18 months thereafter did not require any exceptional care or attendance other than that ordinarily .required by a person of her advanced years ; that thereafter she became feeble in mind and body, and during the last years of her life required and received from the plaintiff’s testator and his family care and attention, of an exacting and disagreeable kind. The referee has found the value of the services so rendered, and that there is still a balance due from her estate of $850.72. Some question has been made in reference to the value of the services found by the referee, and it is claimed that a greater sum has been allowed than should have been, but we are not disposed to interfere with these findings; for, although liberal, we think they are sustained by the evidence.

It further appears tbat'the claim against the estate was presented by William Beattie in his lifetime, but that he, shortly thereafter and before the trial of this action was completed, died ; that prior to the year 1888, and before Jane Beattie went to reside with him, he had as her agent, collected for her use the interest accruing upon a mortgage owned by her during the years 1885, 1886, and 1887, amounting to $1,025.60. It is claimed that this sum should be charged to him and credited upon his account. The circumstances disclosed under which these collections were made are somewhat meager. If appears that William Beattie was the nephew of Jane Beattie, and that they lived in the same town, near each other ; that Jane Beattie’s property chiefly consisted of a mortgage for $4,815 upon real estate in the same town; that she •collected the interest accruing thereon herself, until the spring of 1885, after which the interest was paid to William Beattie; that she was then 85 years of age, and when payments were made to-her she said that William Beattie would make the indorsementsfor her; that this manner of payments to her and the' indorsing of the interest by William commenced as early as 1883, and continued up to the time that the interest was paid to William. She then appears to have delivered the mortgage to William, who made-the collections for her thereafter. After she went to live with William, in 1888, he still continued to make the collections of the interest paid upon the mortgage, but has charged himself therefor, and accounted for such collections. As to what was done with the-money collected by him prior to that time the case is silent; but the referee has found that the legal presumption, under the circumstances, is that he had performed his legal duty, and paid over and accounted to her for the moneys so received by him, and that his estate is not chargeable therefor. We are inclined to the view that the conclusion of the referee should be sustained. It appeals-that Jane Beattie, up to the year 1885, chiefly transacted her own business; that she made her own collections, paid her taxes, etc., without assistance, except as she had William make the indorsements for her upon her mortgage ; that her mind remained reasonably clear for 18 months after she went to live with William. She therefore must have known when the payments became due upon the mortgage, the amount thereof, and of the sum that should be turned over to her by her agent. At the time she went to live with William she agreed to pay him well for the services that he should thereafter render, making no demand nor claim that he held in his possession any funds belonging to her.. We are aware that in the case of Andrews v. Moller, 37 Hun, 480, it was held that it was only necessary for the plaintiff to show that money belonging to him as receiver had passed into the possession of the defendants for his benefit, in order to be entitled to recover, and that it was not necessary for him to prove that the defendants had failed to-pay over the money ; but in that case it did not appear that the defendants were the agents of the plaintiff. They were, in fact, commissioners licensed by the secretary of state under section - 4,. c. 611, Laws 1875, and the relation existing between them and the plaintiff, or the corporation he represented, was quite different from that existing between the parties in' this action; If William collected the interest accruing upon the mortgage as the agent of Jane Beattie, it became his duty to account therefor and pay over to her the amount so received by him; and if he failed in this, and converted the same to his own use, he became liable criminally therefor. This the law will not presume, but, instead thereof, will presume that he has performed his duty until it is made to appear otherwise. Pardee v. Kanady, 100 N. Y. 121-127 ; People v. Pease, 29 N. Y. 45-74. Green leaf in his work on Evidence (volume Í, § 80) says : “ Where a -negative allegation involves a charge of criminal neglect of duty, whether official or otherwise,, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged.”' The question as to whether the judgment was properly entered, without an order of the court, was waived by the parties upon the argument of this appeal.

The judgment appealed from should be affirmed, with costs.

All concur.


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    Ella Terwilliger, Resp’t, v. Industrial Benefit Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Evidence—Declarations—Insurance.
    In order to prove that the statement in the application for the certificate, made by the insured as to his age, is false, in an action thereon by the beneficiary, the company may show that he previously made a different statement, as to his age, in an application, under oath, for admission into a soldier’s home.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Walter S. MacGregor, for app’lt; Frank S. Colborn, for resp’t.
   Haight, J.

This action was brought to recover the amount due upon two certificates of membership issued by the defendant to Michael Daly, in his lifetime, in which the plaintiff was named as the beneficiary. The answer, among other things, alleged that the application for said certificates made by Daly contained false answers with reference to his bodily condition arid health, and as to his age. The only question which we here feel called upon to consider is that pertaining to his age. In his first application for membership, made in March, 1891, he stated the date of his birth to have been January 12, 1826, and his age at his next birthday as 65. In his second application, made on the 6th day of January, 1892, he gave the date of his birth as February 8, 1827, and his age at the next birthday as 65. He died December 5, 1892. Hpon the trial, Thomas J. Bell was sworn as a witness for the defendant, and testified that he knew Daly, who applied to him to-make out an application for his admission to the soldiers’ home in Bath, A paper was shown to witness, which he identified as the one made out by him on the 18th day of May, 1881; that witness put the questions to Daly which were set down in the paper; that he answered them, and that the witness set down the answers correctly, as he gave them; that, after the paper had been completed, Daly signed the same by making his mark, and swore to the truth of the paper, before witness. The paper was then offered in evidence. It was objected to by the plaintiff as too remote, and as immaterial and incompetent. The counsel for the defendant then offered to show that on the 18th day of May, 1881, Daly made application for admission to the soldiers’ home, under oath, in which he stated his age at that time to be 67 years. The evidence was excluded, and an exception was taken by the defendant. We think this evidence was The declarations of a testator or intestate, binding him, or impairing his estate, may be given in evidence against his personal representatives in all cases where they would have been competent against himself, if he had been living and a party to the action. Hurlburt v. Hurlburt, 128 N. Y. 420; 40 St. Rep. 436; Steinhausen v. Mutual Accident Association, 59 Hun, 336 ; 36 St. Rep. 70.

It is contended on behalf of the respondent that this rule has no application, for the reason that her interest in the certificates had become vested, and that it could not be impeached by the declarations of the deceased. The evidence upon this subject is very meager. The plaintiff, in her testimony, tells of having a conversation with an agent of the defendant, in th.e presence of her father, in reference to the second application for membership ; that the agent had advised her father to take out another policy, and that her father spoke to her and said, “If I would pay the premium on the second, as I did on the first, he would allow me to have another policy, and I agreed to it.” She further testified that she paid all the premiums on each of the certificates, and had possession of both, from the time they were delivered to her. There may be some question as to whether this evidence is sufficient to establish a vested interest in her; but, assuming that it is, we are still inclined to the opinion that the evidence rejected was competent. The plaintiff herself, in sustaining the correctness of the statements of her father in the application for membership, resorted to his declarations as to his age. She stated that he was born in Ireland, and that there was no record of his birth that she had been able to find ; that she had corresponded with the parish priest where he had lived,' and was unable to find any register of the date of his birth; that she knew of his age by repute, and that he was born on the 12th of January, 1826. She then called her brother William Daly, and he.testified that his father was born in 1826, as near as he could recollect from what his father had told him. If the declarations of the deceased were competent as evidence for the plaintiff, we fail to see why they were not also competent for the defendant. The paper in which it is claimed the deceased had given his age, we think, may be regarded as an official document. It appears to have been under oath, and was an application for his admission to a public institution. As we have seen, there was no record of his birth known to his family. Green-leaf, in his work on Evidence (volume 1, § 104), says, in reference to birth, death, and marriage, that:

“ The term ‘ pedigree,’ however, embraces not only descent and relationship, but also facts of birth, marriage, and death, and the time when these events happened. The facts, therefore,- may be proved in the manner above mentiofied in all cases where they occur incidentally, and in relation to pedigree. Thus, an entry by a deceased parent or other relative, made in a Bible, family missal, or any other book, or in any document or paper, stating the fact and date of the birth, marriage, or death of a child or other relative, is regarded as a declaration of such parent or relative in the matter of pedigree. So, also, the correspondence of deceased members of the family, recitals in family deeds, such as marriage settlements, descriptions in wills and other solemn acts, are original evidence in all cases where the oral declarations of the parties are admissible.”

See, also, sections 103 and 105.

In Hurst v. Jones, 1 Wall. Jr. Append, iii., Fed. Gas. No. 6,934, it was held that the contents of affidavits made ex parte several years before, to prove pedigree, are admissible. See, also Swift v. Mass. M. L. Insurance Co., 63 N. Y. 186—193.

The plaintiff’s interest did not vest until the delivery of the certificates to her, and the payment by her of the premiums due thereon. She had no interest at the time the applications were signed by her father, or at the time the certificates were issued by the association, and its rights could not be changed by the subsequent vesting of her interest.

As to the declarations thereafter made by her father, the rule may be different. Rawls v. American L. Insurance Co., 27 N. Y. 282-290 ; Fitch v. American P. L. lusurance Co., 59 N. Y. 557— 573; Smith v. National Ben. Society, 123 N. Y. 85-88; 33 St. Rep. 67; Grossman v. Supreme Lodge, 25 St. Rep. 843. Where the prior statements have reference to health, they should not be remote. A person afflicted with disease may recover, and his prior statements in reference thereto pass from his mind. But we think declarations in reference to age are different. A person can never change the date of his birth. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P.J., and Lewis, J., concur; Bradley, J., not voting.


author: Bradley, J.

text:
    Mary Henning, Resp’t, v. Libbie Miller, as Administratrix, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 06, 1894.)

    1. Contract—Statute op frauds.
    Where land is conveyed under an agreement void by the statute of frauds the grantor may recover its value on an implied promise to pay.
    2. Costs—Executors.
    Where a reference of a disputed claim is ordered after the amendment of 1893 to § 2718 of the Code, the costs are awarded as in an action.
    Appeal from a judgment in favor of plaintiff, and from an order awarding costs to him.

      Philip A. Laing, for app’lt; C. W. Sickmon, for resp’t.
   Bradley, J.

The trial was of a disputed claim made by the plaintiff against the estate of the defendant’s testatrix. The referee found that the plaintiff/ being the owner of an undivided one-third, part of certain lands, entered into an agreement with the defendant’s testatrix whereby it was verbally agreed between them that, in consideration of a conveyance by the- plaintiff to her of her interest in such lands, the defendant’s testatrix would devise and bequeath an equal undivided one-third part of all the estate, real and personal, of which she should die seized and possessed, to the plaintiff; that the plaintiff, in performance of the agreement, made such coveyance by deed, in which the consideration expressed was $1,100, and that the value of the plaintiff’s interest in the premises was then $366.66 ; that nothing has been paid to. her on account of the conveyance, and that the testatrix, by her will, devised and bequeathed to Libbie Miller all her estate, real and personal, except $100 conditionally bequeathed to the plaintiff ; and that at the time of her death she owned real estate valued at $500, and personal property of the value of $1,000. And as conclusion of law the referee determined that the plaintiff was entitled to recover $366.66, with costs and disbursements, and that if she receive the $100 legacy it be applied as payment upon the judgment. There is no serious controversy about any "of the facts so found by the referee, except that of the agreement between the plaintiff and the defendant’s testatrix, and there is evidence tending to support that fact.

On the review of a former trial (66 Hun, 558; 50 St. Rep. 559)r the paroi agreement was treated as one for the reversion to the plaintiff of the real estate conveyed to the grantee on the death of the latter; and the court held that the agreement, being within the statute of frauds, was void, and therefore ineffectual to cut down the estate which the deed purported to convey to a lesser estate. The evidence upon the trial, now the subject of review, tended to prove that the agreement of the grantee was to pay' the consideration for the conveyance in the manner as found by the referee, and that the conveyance was made to her by the plaintiff pursuant to such an agreement. In that view, as she failed to make payment in that manner, the plaintiff is not without remedy, although the agreement is void. While, for that reason, it will not support an action founded upon it, the plaintiff may recover the value of the property conveyed. Robinson v. Raynor, 28 N. Y. 494; Day v. N. Y. C. Railroad Co., 51 N. Y. 583 ; Reed v. McConnell, 133 N. Y. 425, 435 ; 45 St. Rep. 227 ; Id., 62 Hun, 153 ; 41 St. Rep. 815 ; Quackenbush v. Ehle, 5 Barb. 469 ; Lisk v. Sherman, 25 Barb. 433; Rosepaugh v. Vredenburgh, 16 Hun, 60; Bonesteel v. Van Etten, 20 Hun, 468. The action, in such case, does not rest upon contract, other than that implied, to pay the value of that which the party sought to be charged, or he whom he represents, has received upon the faith of his repudiated void promise from the claimant, when it can be done without the support of such agreement. None of the cases cited by the defendant’s counsel hold to the contrary of that proposition. In Morse v. Inhabitants of Wellesley, 156 Mass. 95, the oral promise of the grantee of certain premises conveyed by the plaintiff, to grant back to the latter certain privileges in them, was held ineffectual to support an action. As no such reservation was contained in the deed, or by any written contract, the promise sought to be enforced was within the statute of frauds, and was not available to qualify the estate which the deed, by its terms, purported to convey. In the present case the conveyance of. the entire estate of the plaintiff to the defendant’s testatrix is not questioned. The plaintiff seeks her remedy as a creditor of the estate represented by the defendant as such administratrix. It is suggested on the part of the defendant that the change in the state of facts from those on the first trial, permitted by the evidence on the last trial, is inapplicable to the plaintiff’s disputed claim, as presented to the defendant, and upon which this action is founded. If that were so, a serious difficulty would have been encountered by the plaintiff. Eldred v. Eames, 115 N. Y. 401 ; 26 St. Rep. 277. But such is not the fact. The claim, as made, and rejected by the administratrix, was that of an indebtedness of the estate of her testatrix for an undivided third part of the real estate conveyed by the plaintiff to her. This is the claim to which the evidence was directed on the trial. The referee certified that the plaintiff’s demand was duly and in due time presented, was wholly rejected, and the payment of the demand unnecessarily resisted by the defendant, and that the plaintiff was entitled to costs. Thereupon, after hearing the parties, the court ordered that the plaintiff recover her costs and disbursements against the defendant. It is now insisted that costs were improperly allowed to the plaintiff. By reason of the amendment to section 2718, Code Oiv. Proc., made in 1893, and which had taken effect at the time of the reference to the referee who made the report in question, this became an action, and must be treated as such. Adams v. Olin, 78 Hun, 309 ; 60 St. Rep. 695. The right of the plaintiff to recover costs was therefore dependent upon the statute (Code Civ. Proc. § 1836). The action was brought within he provisions of that section by the certificate of the referee. Nothing appears in the record to justify the conclusion that the referee’s certificate was not permitted by the facts disclosed at the trial. Ely v. Taylor, 42 Hun, 205; 5 St. Rep. 127; Field v. Field, 77 N. Y. 294; Garter v. Beckwith, 104 N. Y. 236; 5 St. Rep. 617 ; Matson v. Abbey, 141 N. Y. 179 ; 56 St. Rep. 690. In the special proceeding of Vaughn v. Strong, 66 Hun, 278 ; 49 St. Rep. 319; the facts upon which the court that the claim was hot unnecessarily resisted were mainly presented by the uncontroverted affidavit of the defendant. In the present case, nothing essentially bearing upon the question of costs appears outside of the evidence taken at the trial. The judgment and order should be affirmed. All concur.


text:
    Isaac Altman et al., as Administrators, etc., Resp’t, v. Eli Hofeller et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894.)

    1. Appeal—Severance.
    The rule of. severance, upon reversal on appeal, is only so qualified as not to permit a reversal as to some only of the parties plaintiff or defendant, when their relation in respect to the subject matter is necessarily joint with their associate parties, and cannot be treated as several, nor "to permit a new trial to be properly granted as to a portion of the gross sum recovered, and affirmed as to the residue of it.
    3. Former adjudication—Parties.
    The fact that the administrators and the general guardian are, as to the representatives of a deceased surety on the administrators’ bond, concluded by the judgment upon a judicial settlement, does not render it also conclusive upon the ward, after a reversal of it as to him.

      3. Same.
    When the judgment as against the ward was reversed, it ceased to be an estoppel as to him, and the reversal, in its practical effect, for the purpose of an inquiry by him upon the new trial into the state of the accounts of the administrators of the estate of his deceased father, and into the state of the accounts legitimately as such between them and the general guardian, is substantially the same, except for the purposes of a new trial therein, as though he had not been a party to the action.
    Appeal from a judgment in favor of the plaintiffs.

      William F. Cogswell, for app’lt; Norris Morey, for resp’ts.
   Bradley, J.

This action was originally brought against Gabriel Wile, as general guardian of Eli Hofeller, an infant; Gabriel Wile, as administrator, etc., of Lilly Hofeller, deceased; Lehman Hofeller, and Schanette Wile. The purpose of the action was the exoneration of the estate of the plaintiffs’ intestate from liability in the relation which he had assumed as surety for the administrators, etc., of Sigmund Hofeller, deceased ; and, with a view to that relief, the prayer of the complaint was that a judicial settlement be had of the accounts of Lehman Hofeller and Schanette Wile, as administrators of the estate of Sigmund Hofeller, deceased ; that Schanette pay to Gabriel Wile, as such guardian and administrator, the amounts due from such estate to Eli Hofeller and the representative of Lilly Hofeller, deceased; and that Gabriel Yrile be enjoined from prosecuting certain actions against the plaintiffs, etc. Afterwards, in December, 1886, Lehman Hofeller died, leaving his last will and testament, in which he nominated Levi Adler as executor, to whom letters testamentary were duly issued ; and on February 10,1888, Eli Hofeller became 21 years of age. Thereupon, in September, 1888, by supplemental complaint, Eli Hofeller, and Levi Adler as such' executor, were made additional defendants. All the defendants answered separately except the executor, Adler, who did not answer. The issues were tried before a referee, who upon the facts found by him, determined that the plaintiffs were entitled by judgment to a judicial settlement of the accounts of Schanette Wile as administratrix, etc., of Sigmund Hofeller, deceased, and of the accounts of Gabriel Wile as general guardian of Eli Hofeller, and that Schanette Wile was liable, on such accounting, to account for the whole estate of her intestate. The referee stated the account of her as such administratrix, and the account of Gabriel Wile as such general guardian, the result of which was that he was charged with the amount of the estate of Sigmund Hofeller, deceased, to which Eli Hofeller and the personal representatives of Lilly Hofeller were entitled. The referee further determined that the -plaintiffs were entitled to judgment to the effect that they, as administrators, etc., of Jacob Altman, deceased, and his estate, were discharged and released from liability upon the bond executed by their intestate with Lehman Hofeller and Schanette Wile (then Schanette Ho-feller), such administrators, and as one of their sureties, and directed judgment, which was entered, for such- and other relief. Appeals from the judgment were taken separately by the defendants Eli Hofeller, Gabriel Wile and Schanette Wile to the general term, and there it was ordered that the judgment appealed from be, and it was, reversed as to the appellant Eli Hofeller, and a new trial ordered as to him, with costs to that appellant to abide the final award of costs, and as to the other appellants affirmed, with costs; “ but that the settlement of the accounts of Schanette Wile and Lehman Hofeller, as administratrix and administrator of Sigmund Hofeller, deceased, by the referee in this action, and the judgment therein, shall be of no force and effect as against said Eli Hofeller in the further proceedings in this action.” The issues between the plaintiffs and Hofeller afterwards came on to trial before another referee,' who determined that the judgment before mentioned, settling the accounts of the administrators, etc., of Sigmund Hofeller, deceased, and of the general guardian of the defendant Eli Hofeller, was binding on the latter, and conclusive evidence of the payment of that defendant of his entire distributive share in the estate of Sigmund Hofeller, deceased, and that no portion of it remained in the hands of such administrators; and the referee directed judgment for the plaintiffs, which was entered accordingly. Exceptions were taken by the defendant.

The view of the learned referee on the last trial was .that, as the judicial accounting of the administrators was had in an action to which Eli Hofeller and his previous general guardian were parties, the accounting was conclusive upon the appellant, and that, as the judgment as to the administrators and general guardian was affirmed, it was rendered no less conclusive against the appellant by the reversal as to him, and therefore the granting of the new trial was futile to serve any substantial purpose in his behalf. Upon principle, as well as by the statute, a judicial settlement of the accounts of an executor or administrator by decree of a court of competent jurisdiction is'conclusive evidence against the parties who are duly cited or appear. Code Civ. Proc. § 2472. This was the effect of the first judgment as to all the parties when it was entered. But upon an appeal from a judgment the general term may reverse or affirm, wholly or partly, as to any or all of the parties, and may, if necessary or proper, grant a new trial. Id. § 1317. The rule of severance is only so qualified as- not to permit a reversal as to some, only, of the parties plaintiff or defendant, when their relation in respect to the subject-matter is necessarily joint with their associate parties, and cannot be traced as several; nor can a new trial be properly granted as to a portion of a gross sum recovered, and affirmed as to the residue of it. Story v. N. Y. & H. Railroad Co., 6 N. Y. 85; Goodsell v. W. U. Telegraph Co., 109 N. Y. 147; 15 St. Rep. 73. The present case is one in equity, and there was nothing in the relation of the parties to prevent the reversal and new trial as to the defendant Eli Ho-feller. The question is whether the reconsideration of the judicial settlement of the accounts of the administrators on the merits was open to him upon the new trial directed on the reversal of the judgment as to him alone. True, the accounting as between the plaintiffs and the administrators remained effectual, and the general guardian was conclusively charged by the judgment. But no person having an interest in the subject of an action is concluded by its determination unless he is a party to it or may be treated as such. Although the appellant was a party to the action, the court, on review, determined that the judgment as against him was erroneous, while it was otherwise as against the other defendants. If the case was susceptible of that situation, the appellant was entitled to the benefit of a new trial upon the merits.

The question is presented whether or not the fact that the administrators and general guardian were, as to the plaintiffs, concluded by the judicial settlement declared by the judgment, rendered it also conclusive upon the appellant, notwithstanding the reversal of it as to him. The view taken by the general term was that although, as between the plaintiffs and the administrators and the guardian, the latter was, by the judgment, charged with having received of or from the estate of Sigmund Hofeller, deceased, an amount sufficient to pay the distributive share to which Eli Hofeller was entitled, the latter, upon the facts as they appeared, was not required to treat such liability of guardian as having been created in such manner as to discharge the administrators, to that extent, from liability to him, the appellant. Upon that subject, in the opinion of the court delivered by Mr. Justice Dwight, it, with other things, was said :

“It is very apparent that the property may have come into the hands of the general guardian under such circumstances as to render both the guardian and the administratrix liable therefor to the infant beneficiary of the estate. * * * It is very clear that there is nothing in the fact that the guardian had become charged," which of itself discharges the administratrix ; and the assumption to the contrary is, as we have already said, the fundamental error of the conclusions of law of the referee in this respect. He finds as a fact ‘that from the date of the marriage of Gabriel to Schanette, in January, 1880, Gabriel took possession of the property of Eli Hofeller, the son of his wife, Schanette, and who from that time was a member of his family, and acted and assumed to act as the guardian of Eli’s property ; and that between January, 1880 and September014, 1881, the following sums of money from the estate of Sigmund Hofeller, deceased, were paid to him by Schanette Wile, or collected and received by him with her knowledge and consent, as follows, to wit;’ and here follows a statement of moneys received by Gabriel before his appointment either as guardian of Eli or as administrator of Lilly, aggregating the sum of nearly $12,000. It is very clear that for no part of this money was Schanette discharged from liability as ‘administratrix, albeit Gabriel did become charged with liability therefor as guardian upon his subsequent appointment as such. And the same is equally true of other funds and equitable assets of the estate which came into his hands after his appointment as guardian, if and so far as they came into his hands as the husband or agent of his wife, and not as guardian of his ward, or were either collusively or negligently permitted by the administratrix to be received and disposed of by him for his own benefit.” And it was there further said that “effect was given to the erroneous principle adopted by the referee, by crediting to the administratrix in her account all the funds and assets, legal or equitable, of the estate, with which the guardian had become by any means chargeable.” Altman v. Wile, 46 St. Rep. 517.

Thus are presented some of the facts and some of the reasons by which the general term was led to the conclusion that the appellant was entitled to a new trial, notwithstanding, as between the plaintiffs and the other defendants, Gabriel Wile was charged with liability to an amount adequate to discharge his qbligation as guardian and administrator; and upon those facts', and for those reasons, Sohanette Wile, as administratrix, remained liable to Eli Hofeller. The law of the case, for the purposes of the new trial of the issues between the plaintiffs and the defendant Hofeller, is that declared by the general term, and therefore, on the new trial to which he is entitled upon the merits, he is not concluded by the judicial settlement of the accounts as between the plaintiffs and the other defendants determined by the judgment. When the judgment as against the appellant was reversed, it ceased to be an estopped as to him, and the reversal, in its practical effect, for the purposes of inquiry by him upon the new trial into the state of the accounts of the administrators of the estate of his father, deceased, and into the state of the accounts legitimately as such between them and the general guardian, is substantially the same (except for the purposes of a new trial therein) as if he had not been a party to the action; and if there be established any liability of the administrators, or of either of them, to him, he may eventually have his remedy upon their bond. Code, § 2607; Nanz v. Oakley, 122 N. Y. 631; 33 St. Rep. 330. The judgment should be reversed, and a new trial granted ; costs of this appeal to the appellant to abide the final award of costs.

All concur.


author: Dwight, P. J.

text:
    Margaretta F. Johnson, as Executrix, etc., Resp’t, v. William B. Sirret et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term,, Fifth Department,

      Filed December 27, 1894.)

    Contract—Construction.
    The word ‘‘parcels," in an agreement to pay commissions for procuring the purchase of land when it should be resold, either entire or in parcels, means “portions,” whether several or undivided.
    Appeal from a judgment, entered on the decision and findings of the court in favor of plaintiff.

      T. C. Becker, for app’lts; C. H. Timmerman, for resp’t.
   Dwight, P. J.

This action was to recover commissions on the sale of land under a contract in writing of the three defendants with the plaintiff’s testator, of which the following is a copy :

“ For a valuable consideration to us in hand paid, the receipt whereof -is hereby acknowledged, we, the undersigned, hereby agree to pay Thomas Connaroe the sum of thirty dollars ($30.00) acre on the sale of . the tract of land this day Mary A. Johnson and Margaretta F. Johnson to us, containing about one hundred and twenty-five (125) acres, whenever a sale of said land shall be effected, or the same shall be taken by legal proceedings or the exercise of the right of eminent domain. If the same shall be sold or taken in parcels, a proportionate part shall be paid to said Oonnaroe at the time each parcel is taken or sold, as aforesaid. [Dated September 9, 1887.]”

The purchase of the land had been negotiated by Oonnaroe, for the defendants Sirret and Morganstern, from the grantors named in the above contract; and the commissions of $30 per acre on all of such lands thereafter to be sold or parted with by the purchasers was fixed as his compensation for negotiating the purchase. By direction of the purchasers, Sirret and Morganstern, the conveyance by the vendors was made to the defendants Sirret and Scheu and one Mart’ll a Millet, in the undivided shares of one-fourth to Sirret, one-half to Scheu, and one fourth to Mrs. Millet, and upon the agreement between Scheu and Morganstern that the former should hold one undivided fourth in trust for the latter, making all such payments as should be required on such share, and accounting to Morganstern for all sums received on the sale or transfer of the same, over and above what Scheu had paid thereon. Subsequently, Morganstern negotiated a sale of his undivided one-fourth of the property, held in trust for him by Scheu, to one Williams, and Scheu made the conveyance accordingly. Williams paid Scheu all he had advanced on the share so conveyed, and was, to all intents and purposes, the purchaser and absolute owner of the share of the property theretofore held by Scheu in trust for Morganstern. All these facts appear by undisputed evidence. The assumption in argument of counsel that Williams merely took the place of Scheu, as trustee for Morgan-stern, is negatived by the evidence of all the parties to the transaction. On these facts, the judge at the circuit held and found that Oonnaroe, the plaintiff’s testator, was entitled to his commismissions on the sale so made, viz. at the rate of $30 an acre on one fourth of the entire purchase made by him. We have no doubt of the correctness of this finding. We know of no reason why it should not be so. It is a narrow construction of the contract which would confine the meaning of the word “parcels” to portions of the land held in severalty. The word “ parcels” as here employed, must be held to intend portions, whether several or undivided; otherwise, the plain intent of the agreement with Oonnaroe was liable to be entirely defeated. Sirret and Scheu and Mrs. Millet might each severally and successively convey his and her undivided share to Mr. Williams, as Morganstern, by his trustee, had done; and there is the entire title, to the whole tract of land, aliened and conveyed, and nobody responsible to Connaroe for the commissions earned by him in the original purchase, and stipulated to be paid to him on a sale of the land, or any portion of it. The judgment is right, and must be affirmed.'

All concur.

Judgment appealed from affirmed.


author: Finch, J.

text:
    Annie Goldsmith et al., Resp’ts, v. Leopold Goldsmith, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Trust—Equity.
    When a person, through the influence of a confidential relation, acquires title to property or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief.
    2. Same.
    Where the transaction is one between parent and child and involves the greatest confidence on one and the greatest influence on the other side, the case is one in which equity may properly intervene.
    3. Same.
    Equity, in such case, will raise out of the situation an implied trust to prevent and redress a frond, which trust will be unaffected by the statute of frauds and may properly be enforced.
    Appeal from judgment of the general term of the city court of Brooklyn, entered upon an order which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term.
    This action was brought by plaintiffs, who were four of the children of Barbara Goldsmith, deceased, against defendant, their brother, and the only other child of the deceased. Their complaint set forth the transfer by said Barbara Goldsmith to defendant of certain real property described, without consideration, to be held by him in trust for the benefit of all the children, the sale of said premises by defendant, and subsequent purchase by him with the avails of other real estate. The relief asked was that defendant be directed to transfer to each of the plaintiffs an undivided one-fifth interest in said last-mentioned real estate, and that he be directed to account for and pay to plaintiffs their share of the proceeds of the sale of said first-mentioned real estate, and for such other and further relief as might be just.

      Hays & Greenbaum, for app’lt; Jerry A. Wemberg, for resp’ts.

       Affirming 56 St. Rep. 904.

   Finch, J.

The findings in this case show a situation which permits the application of an equitable remedy. They establish that Mrs. Goldsmith, while the owner and in possession of a house and lot known as the Myrtle avenue property, met with an accident which incapacitated her for its further care and management, and induced her to commit it to her son, the defendant, Leopold. That son was of age but unmarried and lived with the family, which further consisted of four children, three daughters and one son, all of them, with perhaps a single exception, minors, and two of them under ten years of age. The Myrtle avenue property furnished a home for the family which was supported partly by the rental of a portion of the house, partly by the husband and father, and to some extent by the labor of Annie, the eldest daughter, upon whom the household management devolved after the disability of the mother. The means of the family were narrow and limited. The home which they occupied was very essential to their comfort and support, but even that was incumbered by a mortgage, the annual interest of which was a charge upon their resources. In this state of affairs the findings show that the mother conveyed the house and lot to her son, Leopold, upon a promise on his part to hold it for the benefit of the other four children in common with himself, and give to them their shares in it. He paid no consideration for it beyond the promise thus made. It was a further part of the arrangement that he ■should have all the accruing rents, but should pay the interest on the mortgage and the taxes on the property, and was to have his board in the family without charge. In pursuance of this arrangement the deed was executed and delivered, and Annie herself took it to the clerk’s office for record. It is quite evident that this was an arrangement founded upon the relation of mother and son, and brothers and sisters, involving the trust and confidence growing out of that relation, and intended as a settlement of the family affairs. It furnished a home for all in which they were to have a common right, and which was to be for their joint benefit. The deed was made in February, 1887. The mother died in March of the next year. The plan originally adopted was carried out during her life and for some considerable time after her death. The daughters furnished Leopold his board without compensation or charge, as was arranged, and occasionally paid out small sums for ordinary repairs of the house. A time came when Leopold sold the Myrtle avenue property, and with a portion of the proceeds bought a house and lot on De Kalb avenue. There is evidence that on this occasion he was asked to take the deed in the name of all the children interested, but objected on the ground that it would be troublesome and inconvenient, and promised to execute a separate paper acknowledging and securing their rights in the property. Soon after he totally repudiated the agreement, and claimed to be the sole and absolute owner of the property, and now defends against the children, insisting that the agreement, if made, was void for uncertainty, and because it rested solely in paroi.

There was enough of evidence to warrant the finding that Leopold at the time of the conveyance promised his mother that he would hold the property in trust for the plaintiffs herein. What he said on that occasion was expressed in somewhat different terms by different witnesses, but the substance of all of it concurred in the promise that he would hold the legal title for the benefit of the plaintiffs. That agreement was reflected in the action of both parties for some years after it was made, and induced the plaintiffs to do what otherwise they would not have done, and furnish Leopold his board without charge. The conduct of the latter in now denying the rights of the plaintiffs operates as a manifest fraud upon them and upon the purpose of the dead mother in seeking to provide for her children. It would be a reproach to equity if it proved unable to redress such a wrong.

It may be granted that no express trust was created, and that the judgment cannot be sustained on that ground, but we think the case is one in which equity wilfrraise out of the situation, from the grouped and aggregated facts, an implied trust to prevent and redress a fraud, and which trust will be unaffected by the statute. of frauds and may properly be enforced. The general rule was declared, in Wood v. Babe, 96 N. Y. 425, 426, to be, that when a person, through the influence of a confidential relation, acquires title to property or obtains ah advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief. It was added that, while the fraud must be something more than the mere breach of a verbal agreement, yet, where the transaction is one between parent and child, and involves the greatest confidence on one side and the greatest influence on the other, the case is one in which equity may properly intervene. One of the findings in this case is “ that at the time said deed was delivered the defendant understood that his mother reposed confidence in him, and with that understanding accepted the conveyance and the confidence of his mother.” There is no room to doubt the truth of that finding. There was not only involved the relation of mother and son, but that of brothers and sisters, for whose benefit the agreement was made. The absence of a formal writing grew out of that very confidence and trust, and was occasioned by it, as was also the subsequent performance by the children of the condition to furnish board without pay.. Upon the whole transaction, therefore, including the confidential relation of the parties and its nature as a family arrangement very much beyond a mere business relation, we think it was competent for a court of equity to impress upon the property and its proceeds an implied trust for the benefit of the children. It is true that an intended fraud is not explicitly and by the use of that word charged in the complaint, but all the facts are there, fully and clearly stated, showing the fraud attempted to be perpetrated, and all that is omitted is the word or expression characterizing the necessary inference. We have held that such an omission after judgment is not material where the facts themselves have been sufficiently pleaded. Whittlesey v. Delany, 73 N. Y. 575.

We"think, therefore, that there was no error in awarding the relief, and that the judgment and order appealed from should be affirmed, with costs.

All concur. Judgment affrmed.


author: O’Brien, J.

text:
    Gertrude Dean, an Infant, etc., Resp’t, v. Miners Raplee, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Assault—Rape.
    In order, to maintain an action to recover damages for an assault, committed in such manner and under such circumstances as to constitute the offense of rape, plaintiff must establish that the criminal connection with her was acco nplished with the intent on defendant’s part to effect his purpose in defiance of all resistance, that it took place without her consent and against her will, and that she resisted to the best of her ability, under all the circumstances.
    2. Same.
    What that ability is must in many cases depend not only upon her strength and power to defend herself or make herself heard, but also upon the element of fear when it exists.

      3. Same—Disclosure.
    The failure of the girl to make any disclosured, for a long time, of the various assaults, where they extend over the period of a year, tends to cast suspicion upon her testimony on the point of consent and. resistance.
    '4. Same—Under sixteen years op age.
    The consent or non-resistance on the part of a girl under sixteen years of age is not to he understood in the same way as in the case of like acts committed upon a woman of more mature years..
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, Which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      Elmer E. Charles, for app’lt; Eugene W. Bartlett, for resp’t.

       Affirming 57 St. Rep. 690.

   O’Brien, J.

This action was brought to recover damages for an assault by the defendant upon the plaintiff committed in such manner and under such circumstances as to constitute the offense of rape. It was alleged that in the month of March, 1886, and at different times during the following year, the defendant assaulted the plaintiff, and by force and threats of personal violence compelled the plaintiff to have sexual intercourse with him, without her consent and against her will. It appeared that in the month of April, 1885, when the plaintiff was but fourteen years of age, the defendant, who then had no children," took the plaintiff, who was an orphan, without father or mother,- to his house, under an arrangement' with her and some of her relatives that he would board, clothe and educate her; that she should become a member of his family, performing such duties and receiving such care and attention as a girl of her age would be entitled to receive from parents in the same condition in life. The arrangement, as testified to, would j ustify expectations and hopes on the part of the plaintiff to becoming the heir of defendant’s property, and it appears that he was a man of considerable means.

The relations which the parties occupied to each other were not those of master and servant, but rather that of parent and child. The plaintiff was subject to such anthority on the part of the defendant, and was accustomed to render such obedience to his commands as is common and usual where that relation exists. The first assault, it is claimed, was committed about a year after the parties entered into these relations. The fact itself, and all the attending circumstances, depend mainly, if not entirely, upon the testimony of the plaintiff. Her evidence is that she was sent to the horse barn to look for eggs, and shortly after she got there and commenced the search for eggs the defendant appeared in the barn and told her to go up into the loft and look there, which order she obeyed. After being there about five minutes and not finding any eggs, she started to go down, but seeing the defendant coming up the stairs she stepped back, waiting for him to come up until he reached thé landing. He then inquired if she had found any eggs, and she replied that she had not. He then said that she had better put on her spectacles, and, stepping up to her put his arm around her, his hand under her chin, and, after kissing her several times, commenced to push her back upon the hay. She asked what he was going to do and told him to stop, and he told her to keep still, that he would not hurt her, and then pushed her back upon the hay and had connection with her, she all the time begging him to let her go, asking him to desist, and trying to push him away, and, as she says, in general terms, resisting him to the best of her ability. After the outrage she says that he lifted her up, told her to stop crying, go to the house and keep still about it, and that if she told it to anyone it would be the worse for her. She states that on six or seven subsequent occasions, during the year following, assaults of substantially the same character, and under similar circumstances, were repeated. On two of these occasions, after having seized and thrown her down, he desisted from his purpose at one time, as she says, through fear of exposure by some one approaching, and at another on account of her condition, having been suddenly seized at the time of the assault with what is described as some spasmodic nervous affliction as the result The evidence tended to show that the plaintiff was a slight nervous girl, and that after the fourth or fifth occasion, about July or August of the year, she become ill from the effects of the previous assaults. That this illness manifested itself in nervous spasms and in other ways which experts attempted to trace to the treatment she had previously suffered at the hands of the defendant. The description here given of the circumstances of the first assault will apply for all practical purposes to the others. She made no outcry on any occasion, though she swears that the offense was committed against her will and against all the resistance she could make and without her consent The place where these assaults were made was, as she testified, when the parties were alone in the bam where the plaintiff had been sent or had been called on some errand, but on one occasion it took place at a considerable distance from the house in an open field. The fair conclusion from all the evidence is, however, that an outcry if made by the plaintiff would have been heard by some one. This action was commenced some three years after the last assault, and not till about the time of the bringing of the suit did the plaintiff disclose the facts here related. The defendant was a strong, powerful man, and all the circumstances justified the jury in believing that he exercised great influence and control over her will, and it appeared that at the time of each assault he commanded her never to tell what had taken place, threatening her if she did, though none of the threats were of a character to warrant the belief that any bodily harm was intended.

A motion for a non-suit and for a dismissal of the complaint was denied and the case was submitted to the jury and a verdict found for the plaintiff. The general term has affirmed the judgment.

The learned trial judge charged the jury that the plaintiff in order to maintain the action must satisfy them, from all the proofs, that if the defendant had criminal connection with her, that it was accomplished with the intent on his part to effect his purpose in defiance of all resistance, and that it took place without her consent, against her will and that she resisted to the best of her ability, under all the circumstances.

There are cases that seem to bold that a civil action of this kind based upon a charge such as is set forth in the complaint in this action may be maintained upon evidence such as might not besufficient to warrant a conviction upon a criminal charge of rape. Some of these cases are referred to in the opinion of the learned judge in the court below, but it is unnecessary to comment upon them since we are of the opinion that the judgment in this case must be upheld, if at all, upon the view of the law given by the trial judge to the jury. Moreover, we think that this is the correct rule. The principle was necessarily involved in the case of Young v. Johnson, 46 Hun, 164; 11 St. Rep. 590, which was affirmed in this court, 123 N. Y. 226; 33 St. Rep. 486, The point was not discussed in the opinion when that case was here, but the decision covered the question.

Assuming this to be a correct statement of the law applicable to cases of this character, the question now arises whether there was in this case any evidence to submit to the jury. It is not often that such an assault is or can be described by a female with that complete fullness of detail with respect to every word spoken or every fact and circumstance that may enter into the questions of consent or resistance. When the proof is given, as it sometimes is in general terms, the jury must still be satisfied that there was no consent, and that resistance was made to the extent of the woman’s ability. What that ability was must in many cases depend not only upon her strength and power to defend herself or make herself heard, but also upon the element of fear when it exists. The age, strength and physical appearance of the parties, with the manner in which they testify, are elements of some importance which the jury may consider with all the other facts. The relation which the parties bear to each other, as in this case, may also be considered. Where on one side we find extreme youth, inexperience and dependence united with the principle of fear and obedience, and on the other, mature age, great physical power and dominating influence and control' over the movements and will of another, the question of content and resistance must be determined with reference-to these conditions.

When such a case arises who is to determine when, as in this case, the girl, in stating the occurrence, states that she did not consent and did resist to the best of her ability, whether she tells the truth or not? Can this court, after the jury have accepted the plaintiff’s version of the transaction and the general term has approved the verdict, say, as matter of law, that there was no evidence for the consideration of the jury? This, I think, would be to transcend the limits of our jurisdiction as a court of law, without power to review disputed facts. Whatever we might think of this case, if we had the power to determine the facts, I think we cannot say, as matter of law, that it was.impossible for the jury to take the view of the case that they did.

This court said, in the case of People v. Connor, 126 N. Y. 278; 37 St. Rep. 23 : “ When an assault is committed by the sudden and unexpected exercise of overpowering force, upon a timid and inexperienced girl, under circumstances indicating power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for the jury to say whether the fear naturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual resistance to the assault.”

If we should attempt to determine the facts in the case ourselves, it seems to me that we would be obliged to admit, as a first step, that there was some evidence on the part of the plaintiff for our consideration, though we might not be inclined to believe it. But the plaintiff’s credibility was for the jury. If she told the truth there was evidence upon which to base the verdict.

We would have very much less hesitation in affirming this-judgment but for the fact that there appears in the record two letters written by the plaintiff about a month after thedate of the first assault to a female friend, who produced them at the trial. It is impossible to read these gossiping letters, written from the defendant’s house, without being impressed with the fact that this girl had then been corrupted, whether by the defendant or by some other evil influence, it is impossible to say. The defendant’s plan of defense necessarily precluded him from giving any light on that point. On the stand he denied the charge in general and in every particular, and hence he had to satisfy the jury that-the plaintiff’s story in regard to these several outrages upon her person, in which time, place and circumstances were given, were, after all, nothing-but pure invention, and that her testimony from beginning to end did not contain even a single element of truth. If it was our duty to try the facts and declare where the truth lay, instead of reviewing the questions of law, we might hesitate before accepting either version of the case. On the plaintiff’s evidence she never made on her part the slightest advances that would indicate consent. The case, as it stands, resolves itself into a question of resistance on her part to the best of her ability, and that, we think,, was, under the peculiar circumstances of the case, for the jury.

Since the amendment of the Penal Code (§ 278) by eh. 693 of , the Laws of 1887, the acts charged against the defendant, when committed upon a female under sixteen years of age, would amount to rape; and while the present case must stand upon the law as it existed when the alleged assaults were made, yet the reasons which induced the legislature to change the law cannot be ignored in our review of the case. That act eliminated the question of consent or resistance from the case of an assault upon a female under that age on the trial of a criminal charge. The amendment was evidently based upon the principle that consent or non-resistance on the part of a girl of that age was not to be understood in the same way as in the case of like acts committed upon a woman of more mature years. The jury could have taken the same view of this case. The circumstances of the various-assaults extending over the period of a year, and the failure of the girl .to make any disclosures for so long a time, tended to cast. suspicion upon her testimony upon the point of consent and resistance. If this was a criminal case where the prosecution is bound to prove the charge beyond a reasonable doubt, the appeal would be entitled to prevail. But here a preponderance of proof is sufficient. People v. Briggs, 114 N. Y. 56; 22 St. Rep. 317. Whether there was such a preponderance depended to a great extent upon the credibility to be given to the plaintiff’s testimony, and this was a question for the jury. It was also a question that the trial judge could have dealt with after the verdict of the general term upon appeal. The case having passed these stages, this court has no power to set aside the verdict unless it can say either that there is no evidence at all or not more than a scintilla. We.cannot do that without assuming functions that have not been conferred upon the court, and so, we think the judgment must be affirmed.

Andrews, Oh. J., Finch and Gray, JJ., concur; Peckham and Bartlett, JJ., dissent on the ground that there was not sufficient evidence in regard to the girl’s resistance to go to the jury; Haight, J., not sitting.

Judgment affirmed.


author: Gray, J.

text:
    In the Matter of the Claim of Mary L. Van Slooten, Resp’t, v. Edward Dodge, as Administrator, etc., App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Executor—Disputed claim.
    A claim, can only be the subject of an agreement for a reference with an executor, if it existed as such against the deceased, and was one for which his estate had been answerable and which will devolve upon the executor or administrator by virtue of the representative nature of his office.
    2. Same.
    An executor cannot subject the estate in his hands for administration to some new liability, either by his contract or by his wrongful act.
    3. Same.
    The executor cannot, by offering to refer the claim, waive the essential prerequisites of the statute that it must be one against the deceased, which accrued in his life, or which would have accrued against him if he had lived.
    Appeal from judgment of the general term of the supreme court of the second judicial department, entered upon an order which affirmed a judgment in favor of claimant entered upon an order confirming the report of a referee.

      H. B. Hubbard, for app’lt; Merritt E. Haviland, for resp’t.

       Reversing 59 St. Rep. 147.

   Gray, J.

This respondent presented a claim against the executor of the estate of Harry E. Dodge, deceased, for a diamond ring of the value of not less than $500, which, she alleged, the testator had given to her and which, after his death, at the request of the executor, shy had handed to him for inspection. She alleged that he had refused to return it to her, upon the ground that it belonged to the estate of the deceased. The executor disputed the validity of the claim and, upon his offer to refer the same, a reference was consented to and ordered. The referee reported in favor of the claimant. His report was confirmed at the special term and a motion to set it aside and for a new trial was denied. Upon appeal, the general term affirmed the judgment and the order; but by a divided court, Mr. Justice Cullen dissenting from his associates upon the ground, substantially, that, as no claim against the deceased had been established, no recovery could be had in such a proceeding. I think his was quite the correct view of the case. I think that the findings of the referee, that the deceased in his lifetime had given the ring totheclaimant and had delivered it to her with the intention that she should possess it, were in accord with the evidence in the case. There is but litttle evidence from which a contrary inference could be made. That being the case and the claimant having shown that she had lost possession of the ring solely through the act of Mr. Wheeler, who was the executor, it is difficult to understand how such a proceeding as this could be maintained. The finding of the referee, with respect to the claimant’s loss of possession of the ring, was as follows : “That shortly after the death of said Harry E. Dodge, the claimant delivered said diamond ring to said Charles H. Wheeler as executor, at his request, but not intending to, nor did she thereby release or transfer her right and title thereto, as owner.” It seems that upon the occasion of a certain interview between the executor and the claimant, a short time after the testator’s death, he asked for and obtained the ring from her ; either, according to her account, upon the pretext that he wished to inspect it; or according to his account, upon his request that she should give it to him for the purpose of having it inventoried. The conflict of evidence upon the manner in which Mr. Wheeler, the executor, had acquired the ring, is not very material and the referee had settled it by the finding above mentioned. The difficulty with the recovery in this case is, as Mr. Justice Cullen has pointed out, that this is a special proceeding and is maintainable solely by virtue of the provisions of the statute; which, at the time of the agreement to refer, were contained in the Revised Statutes (2 R. S. 2561, 2562). Those provisions prescribe a publication by the executor or administrator of a notice, requiring all personshaving claims against the deceased to exhibit the same, at a place and time specified, and authorize him, if he doubt the justice of any such claim, to enter into an agreement in writing with the claimant to refer the matter in controversy. It is obvious that a claim could only be the subject of an agreement for a reference with an executor, if it existed as such against the deceased, and was one for which his estate had become answerable and which, therefore, would devolve upon his executor or administrator by virtue of the representative nature of his office. If this ring belonged to the claimant by gift from the testator in his lifetime, its subsequent taking by Wheeler, who was his executor, could not create a claim against the deceased. The claimant never had any claim against the deceased and when Wheeler took it, he did so as the individual and, as the individual, could be made responsible in a proper proceeding for the consequences of his act.

It was supposed at the general term, by the learned justices who concurred in affirming the recovery, that authority for the maintenance of such a claim, as against the executor, could be found in the following two cases: Wall v. Kellogg's Executors, 16 N. Y. 385, and De Valengin's Administrators v. Duffy, 14 Peters, U. S. 282. I cannot so read these cases. In Wall v. Kellogg's Executors, the testator, by his will, had given a power of sale to his executors and they, acting under the power of sale, sold certain lands; the title to which was, in fact, only held by the testator as a naked trustee for the plaintiff and another. The plaintiff was always equitably entitled to a conveyance of them, upon the payment of certain moneys. The executors by selling the lands to a third person, who bought in good faith and without notice, had deprived themselves of the power of performing specifically their testator’s agreement to convey the lands to the plaintiff. The action was, therefore, held to be maintainable against the executors, and the-estate having received the benefit of the purchase money paid for the lands, it was equitably chargeable with the sum which the plaintiff had been obliged to pay to protect his interest in them. In the case of De Valengin's Administrators v. Duffy, De Valengin was the bailee of certain goods shipped by Duffy, which were captured by the Brazilian government. De Yalengin prosecuted a claim against that government for remuneration, but died before receiving any thing upon it. After his death the Brazilian government made compensation to De Yalengin’s administrators. Duffy sued the administrators, as such, for the moneys they had so received. The action was held maintainable, because De Yalengin’s administrators had received the moneys as administrators; and the case was likened to that of a factor, who dies after the sale-of his principal’s property and before the receipt of the money. This principle was laid down in the opinion: “Whatever property or money is lawfully recovered or received by the executor or administrator, after the death of the testator or intestate, in virtue of his representative character, he holds as assets of the estate, and he is liable therefor, in such representative character, to the party who has a good title thereto.” In each of those cases the liability of the executors, or of the administrators, as such, existed because-of transactions to which the deceased had been a party and because his estate had become chargeable with a liability which he was under, or would have been under, if he had lived. An executor cannot subject the estate' in his hands for administration to-some new liability, either by his contract, or by his wrongful act. In the present case, whatever claim this claimant had, because of the taking of the ring from her possession by Mr. Wheeler, was against him individually and in no sense against him in his executorial capacity.

It was said, in the opinion of the majority at the general term,, that “no harm can be done by the executor delivering it back to the-plaintiff,” and the argument in support of the proceeding would seem to be that, as it is neither a claim on a contract, nor a claim for damages, but simply a claim for the restoration of the ring to the claimant, the case falls without the ordinary rule. I fail to see-any force in the suggestion. The result has been to impose costs upon this estate, amounting to upwards of $700; and to that extent to unlawfully diminish the assets of the estate. Upon what theory, or upon what authority, shall the estate be made to pay this large sum of costs, which has rolled up in defending the executor’s act? I know of none. The executor could not, by offering to refer the claim, waive the essential prerequisite of the statute that the claim must have been one against the deceased, which had accrued in his life, or which would have accrued against him, had he lived.

The judgment appealed from should be reversed and an order entered dismissing the proceeding, with costs in all the courts to the appellant against the respondent.

All concur.

Judgment accordingly.


text:
    John Morton et al., App’lts, v. Sarah E. Tucker et al., Resp’ts.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Mechanic’s lien—Bond.
    The bond, given under subd. 6, § 34, chap. 343 of 1885, takes the place of the property and becomes the subject of the lien in the same form and manner as is provided for in the case of the payment of money into court, or the deposit of securities under an order of the court after action brought.
    3. Same—Remedy.
    The remedy, in such case, is an action in equity, brought under the statute, in which all of the persons interested, including the sureties upon the bond, are made parties.
    8. Same—Pleading.
    The complaint is in .the usual form, with the exception that it should allege the giving of the bond and the discharging of the lien, so far as the real estate is concerned, and, instead of asking judgment for a sale of the premises, it should demand relief as against the persons executing the . bond for the lien.
    4. Same—Condition precedent.
    It is not a condition precedent to the bringing of the action, that the lienor shall exhaust his remedy against the landowner by recovering a judgment of foreclosure in form against property, described in the notice of lien.
    Appeal from order of the general term of the city court of Brooklyn, which, affirmed a judgment in favor' of defendants, entered upon a decision of the court on trial at special term sustaining a demurrer to the complaint.

      Herman F. Koepke, for app’lts; E. Raymond, for resp’ts.
   Haight, J.

The complaint, in substance, alleges that during the months of July and August, 1894, the plaintiff sold and delivered unto the defendant Sarah E. Tucker lime, bricks and lath with which to erect seven buildings on a lot of land in the city of Brooklyn (describing the premises), and that such property was sold and delivered at the prices agreed upon between the defendant Tucker and the plaintiffs, which amounted in the aggregate to $528.49, no part of which has been paid, and that the same is now due and owing; that on the 13th day of August, 1894, and within ninety days after the furnishing of. the materials as alleged, the plaintiff filed in the office of the clerk of the county of Kings a notice of lien in the form and manner prescribed by law; that on the 29th day of August, 1894, the defendant Tucker filed with the clerk of that county a bond duly executed by her, with the ' defendants O’Keefe and O’Hara as sureties, in the amount fixed by the supreme court, “ conditioned for the payment of any judgment which might be rendered against the said property ” in any action brought by these plaintiffs; that the bond was approved by a justice of the supreme court, and, after filing, an order was duly made by the court discharging the plaintiff’s lien. The complaint then demands judgment against the defendants for the sum of $528.49, with interest, and that the lien be declared a valid lien until its discharge as aforesaid, etc.

The defendants O’Keefe and O’Hara demur upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It is contended on behalf of the respondents that they being sureties upon the bond are not primarily liable, and that they cannot be charged upon the bond until the plaintiffs have exhausted their remedy by action against the defendant Tucker and have recovered a judgment of foreclosure in form against the property described in the notice of lien.

On behalf of the appellants it is insisted that an action at law can be maintained upon the bond without first resorting to an action to foreclose the lien upon the property. Upon these questions the courts below have differed. Sheffield v. Early, 57 St. Rep. 146; Lawson v. Reilly, 13 Civ. Pro. R. 290; Scherrer v. Hopper, 45 St. Rep. 638: Highton v. Dessau, 46 id. 922; Brandt v. Radley, 23 N. Y. Supp. 277 ; Heinlein v. Murphy, 51 St. Rep. 435 ; Kruger v. Braender, 3 Delehanty, 275 ; 51 St. Rep. 906 ; Garland v. Van Rensselaer, 54 Id. 74; Cunningham v. Doyle, 5 Delehanty, 219 ; 54 St. Rep. 784.

We find obstacles which prevent us from indorsing either contention.

After a lien has been discharged it may be difficult to obtain a judgment against the premises, for the owner has but to interpose the order discharging and vacating the lien in order to defeat the recovery of such a judgment'.

An action at law could not well be maintained upon the bond, for the reason that the right of the plaintiffs to maintain the action might depend upon the priority of their lien and of there being a sufficient sum unpaid upon the contract with the owner with which to pay their claim, involving rights • and equities of other persons who could not properly be made parties in • an action at law upon the bond.

It appears to us that the proper remedy' is clearly pointed out by the statute. It provides that a claimant who has filed a notice of lien may enforce his claim against the property by a civil action in the same manner and form of instituting and prosecuting an action for the foreclosing of a mortgage upon real property. That the plaintiff must make the persons who have filed notices of liens against the property, as well as those who have subsequent liens and-claims by judgment, mortgage or conveyance, parties defendants ; and the court in which the action is brought is required to determine the equities of all the parties to the action, the counterclaims or set-offs, and -the priority and amount of each lien chargeable against the land. Laws of 1885, chap. 342, secs. 7, 8 and 17. The action is in equity, in which the rights and equities of all the p%rties interested must be determined. The statute then further provides for the discharging of the liens before and after action has been commenced. 4-t any time after the action has been commenced the owner of the property may make an offer, in writing, to pay into court any amount stated in the offer, or to execute and deposit any securities or papers which he may describe in discharge of the lien. If the offer is accepted the court in which the action is pending may make an order, upon the compliance with the offer, discharging the lien, in which case the money or securities deposited “take the place of the property upon which such lien or liens was or were created, and shall be subject to the same.” (Sec. 18.) It will be observed that here we have an express provision of the statute by which the money paid, or the securities deposited in discharge of a lien, shall take the place of the property and become subject to the lien in the place of the property.

Then follow further provisions for the discharge of the lien either after or before action brought, in which a bond with two or more sureties may be given by the owner in such sum as the court may direct, but not less than the amount claimed in the notice of lien “conditioned for the payment of any judgment which may be rendered against the property.” (Sec. 24, subdiv. 6.) The conflicting views in the courts below arise out of the construction of this provision. But it appears to us that the meaning is apparent. The sureties in the bond intended, and must be understood as undertaking, to pay the amount which it should be adjudged was due and owing to the plaintiffs and which was chargeable against the property by virtue of their notice of lien. In other words, the condition was for the payment of any judgment which might have been rendered against the property had not the bond been given. The bond, as we have seen, is given to discharge the lien. It is one of the proceedings provided for by the statute, and it was evidently intended that the bond should take the place of the property and become the subject of the lien in the same form and manner as is provided for in the case of the payment of money into court, or the deposit of securities under an order of the court after action brought. Ward v. Kilpatrick, 85 N. Y. 413-418.

If this is so the practice is simple. The action is in equity brought under the statute in which all the persons interested, including the surities upon the bond, are made parties. The complaint is in the usual form, with the exception that it should allege the giving of the bond and the discharging of the lien, so far as the real estate is concerned, and instead of asking judgment for a sale of the premises it should demand relief as against the persons executing the bond for the amount that should be determined to be payable upon the lien. The court then upon the trial can determine the rights and equities of all the parties and award the final judgment contemplated by the statute.

The complaint in this action alleges that the material was sold to the owner of the premises. It does not appear that there was any contractor, sub-contractor, or other lienor who should be made parties. So far as the appellants are concerned the complaint states all the essential facts required, and it is not apparent upon the face thereof that other persons have equities which are required to be determined herein. We think the complaint is sufficient and properly states a cause of action.

The judgment of the general term and that of the special term should be reversed, with costs in all the courts ; but with leave to the defendants to withdraw the demurrer and answer over within twenty days, upon payment of the costs of the demurrer and of the appeals in this court and the general term.

All concur.

Judgment reversed.