text:
    James Dougherty, Resp't, v. Leander Stone, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Statute of frauds—Promise.
    If the person for whose use goods are furnished be liable at all, any promise by a third person to pay for them must be in writing; otherwise it is void by the statute of frauds.
    3. Same.
    Plaintiff, at the request of the father of the owner of a building, made estimates and furnished materials to be used therein, made out the bill to the son and filed a lien against him as owner. He claimed that defendant, who was the custodian of moneys advanced by another to aid in the building, told him he would pay him if he did the work. Held, that such promise, if made, was a collateral one and void under the statute.
    3.' Same—Charge.
    The court, in the charge, referred to the law in relation to joint contracts, which was not involved in the case, and on his attention being called thereto, stated that the proposition was an abstract one, and that if on all the evidence the jury should find that there was no joint contract the proposition would amount to nothing. Held, error; that the question should have been entirely eliminated from the case.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict had at circuit, and also from an order denying the defendant’s motion for a new trial.

      Gecrge S. Hamlin, for app’lt;

      William W Niles, for resp’t.
   Barrett, J.

The sole question here is whether the defendant’s promise was original or collateral.

There are certain undisputed facts which seem to be controlling upon this question, facts testified to by the plaintiff Dougherty himself.

It appears from this testimony that Dougherty knew that the title to the houses in which the materials were to be used was in one Louis M. Mowbray. Anthony Mowbray, Louis’ father, told Dougherty that a mortgage upon the houses had been foreclosed, and that as he, Anthony (who was formerly the owner), could not take the title in his own name (he being insolvent), they had been put in his son Louis’ name. Dougherty negotiated with Anthony Mowbray about estimates and price before he saw the defendant. His testimony on this head is as follows:

“ I undertook the work at this place in this way: Mr. Mow-bray asked me to go in and measure the houses. I asked him about what he calculated to spend on glass for the- houses, the same as 1 have been doing work for him for years. He said he thought he ought to get it done for $1,500; $300 a house. I went and measured all the work in the houses at the time, and I told him I would do it for $1,500.”

He was also asked whether there was an agreement between himself and Anthony Mowbray, “ a talk as to limiting the cost to $1,500,” to which inquiry he answered as follows :

“A. He said about $1.500. We had a conversation about it. He told me he thought he ought to get glass enough for $300 a house, and asked me to go in and measure it up and see if I could do it for that, all that was there.”

Subsequently the following questions were put to him and the following answers given:

“ Q. Had any agreement been made at that time (the time here Teferred to was that of the defendant’s alleged promise)? A. He only said he was satisfied with the estimate, and he was in a hurry for the work; that there were people there looking at the houses.

“ Q. And you said you would do it for that estimate ? A. Yes, sir.”

He also stated, on cross-examination, that he was employed by Anthony Mowbray on his son’s behalf.

Dougherty made the estimates in Louis Mowbray’s name, and he also arranged with Anthony Mowbray that the bill for his work and materials should also be made out to Louis.

Accordingly, he did the work upon the houses, furnished the materials, charged the goods upon his books, and made out the bill therefor to Louis. When the work was finished he took the bill himself to Anthony, who gave him an order on the defendant for $350, which was paid. Subsequently he filed a mechanic’s lien against the property, in which he stated under oath that the name of the person by whom he was employed, and to whom he had furnished the materials, was Louis M. Mowbray.

The defendant came into the matter as a mere custodian of certain moneys which were put into his hands to be disbursed. It appears that prior to the time of the alleged promise Louis Mow-bray had given a mortgage to one Tiffany with the understanding that the latter was to make advances thereon for the completion of the houses. Tiffany made these advances directly to Louis, who turned the money over to the defendant to be disbursed upon Anthony Mowbray’s orders. Dougherty understood all this, and when the alleged promise was made he knew just what Stone’s position in the matter was. He testified that Anthony Mowbray told him that “ Mr. Tiffany had agreed to loan money, enough to finish the houses, and that it was in Mr. Stone’s possession,” and that he must see Mr. Stone about his pay.

And agaii'i, we quote questions and answers:

“Q. Have not you just said that he (Anthony), told you' that Mr. Tiffany had advanced money for the completion of the houses which were in Mr. Mowbray, and that that money was in Mr. Stone’s hands ? A. Yes, sir.

“ Q, And that you were to be paid out of the moneys in Mr. Stones hands, advanced by Mr. Tiffany? A. Yes, sir.”

Dougherty’s testimony as to the promise itself was brief: “ I asked him Anthony Mowbray, who was to pay me. He said Leander Stone.” Shortly afterwards Stone arrived. Dougherty was introduced to him by Anthony as the man who was going to do the stained glass work, and the promise is said to have been then made. This is the plaintiff’s entire testimony with respect to it:

“ I then asked Stone, if I done this work if he would pay me ? He said yes, he would pay anything put in these houses which was ordered by Anthony Mowbray.” It is impossible, upon all the facts, to treat this promise as original. It was clearly collateral to the original liability of Louis M. Mowbray, and the facts overwhelmingly show that the plaintiff so understood it, and so relied upon it. If Louis Mowbray was liable to the plaintiff, then the promise was necessarily collateral, there being no question of a joint liability. And the rule is well settled that if the person for whose use the goods are furnished be liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute of frauds. Brady v. Sackrider, 1 Sand., 514; Dixon v. Frazee, 1 E. D. Smith, 32; Allen v. Scarff, 1 Hilton, 212; Matson v. Wharam, 2 T. R., 80; Bugbee v. Kendricken, 130 Mass., 437; Cahill v. Bigelow, 18 Pick., 369. How can it be seriously contended, upon the facts above stated, that it was not contemplated that Louis Mowbray should be liable at all ? The estimates were made out in his name, the goods were charged to him, the bill was rendered to him, and the plaintiff under oath asserted that he was employed by and furnished the goods to him.

The charging of the goods and rendering of the bill to Louis are facts which may not of themselves be conclusive. All the facts to which we have adverted are undoubtedly susceptible of explanation. But the trouble is that no sufficient explanation was given. There was no mistake or inadvertence about what was done. The plaintiff says that he charged the goods and made out the bill as he did because Anthony Mowbray told him to do so. This may explain why he did not charge them to Anthony Mow-bray, but it does not explain why, if the sole credit was given to the defendant, they should have been charged to either of the Mowbrays. As to the mechanic’s lien, there was no attempt at explanation, and it is indeed difficult to see how such an affidavit could be explained away. Instead of weakening the force of the affidavit, the plaintiff strengthened it by showing that it was deliberately made. He testified that when he filed the mechanic’s lien he supposed the statement was true, and that he would not have sworn to it if he had not thought so; that he went to the county clerk’s office and got a young man there to draw it up, and that he furnished all the information upon which the young man acted in preparing the paper. And he also admits that he made this affidavit after he had received the $350 from the defendant on Anthony Mowbray’s written order.

These facts are much stronger against the claim of ah original promise than the facts in many of the cases where, notwithstanding absolute expressions of the promisor, the engagement was held to be collateral. Matson v. Wharam, supra; Anderson v. Hayman, 1 H. Bl., 120; Dixon v. Frazee, supra; Langdon v. Richardson, 58 Iowa, 610; and see Browne on Statute of Frauds, 4th ed., 229; Wood on Statute of Frauds, § 98, and 2 Parsons on Contracts, 7th ed., p. 11.

We think, therefore, that the complaint should have been dismissed at the close of the plaintiff’s case.

We think, also, that a verdict should have been directed for the defendant when the testimony was all in. Even if there was enough in the terms of the promise, notwithstanding the interpretation placed upon it by the plaintiff’s own acts, to justify the denial of the nonsuit, it is quite clear that the plaintiff’s testimony, weakened as it was by his acts, could not stand for a moment against the defendant’s denial, corroborated as it was, with regard to the surrounding circumstances, by the Mowbrays. The plaintiff’s testimony as to the expression used by the defendant when the promise was made does not harmonize with his subsequent acts and statements. And this testimony should not have been submitted to the jury as against positive denials, denials, too, which were corroborated with regard to important circumstances, without at least some plausible or rational explanation of these subsequent acts and statements. For all such acts and statements plainly indicated that the plaintiff must have understood the defendant’s promise to be collateral to the original liability of Louis M. Mowbray.

It was also error to instruct the jury, as the learned judge did, in substance, that the effect of charging the goods and rendering the bill to Louis Mowbray was sought to be neutralized by testimony on the plaintiff’s part that these acts were done under the direction of the agent of the defendant. The learned judge here referred to Anthony Mowbray, who was the agent of his son Louis, but not of the defendant. We presume this was an inadvertence, but what was said tended to confuse the jury, and it is not improbable that their strange verdict resulted from some idea that the defendant was himself responsible for the very acts which foreclosed the plaintiff.

There is still another point which should be adverted to. What was said about a joint contract was inapplicable to the undisputed facts, and, consequently, a false issue was submitted to the jury. When the learned judge’s attention was called, by the defendant’s exception to what he had said as to the law governing a joint obligation, he stated that the proposition already charged was an abstract one. He added that if, on all the evidence, the jury should find that there was no joint contract, then the proposition would amount to nothing. Thus, it was left to the jury to decide whether, as matter of fact, there was a joint contract, and if there was, to apply the proposition already stated.

This question of a joint contract was not in the case at all, and should not have been submitted to the jury in any form. It should rather have been eliminated from the case entirely, if the jury were to be kept from wandering from the real issue.

The judgment and order denying the motion for a new trial should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., concurs.


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    Ernest De Bavier et al., Resp'ts, v. Hugo Funke, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Principal and agent—-Existence op relation.
    . In action for breach of a contract of sale by failure to accept, plaintiffs claimed that they acted as agents for defendant in procuring the goods; while defendant claimed that they were principals in the sale and warranted the quality. The negotiation was by means of letters and telegrams. Held, that the question as to the nature of their relation was properly submitted to the jury.
    2. Sale—Refusal to accept.
    Where the order for goods requires them to he equal to that of a certain grade or quality, the vendee cannot capriciously refuse to accept them when tendered if in fact equal to those of the specified grade, even though they are bought subject to approval.
    3. Same—Estoppel.
    An acceptance of goods after full opportunity to inspect and examine them, estops the vendee from subsequently claiming damages.
    4. Same.
    Five days is a reasonable time to allow for inspection and examination.
    5. Same—Damages—Evidence.
    Evidence of the amount brought on a sale of the goods at auction is admissible to" show the damages sustained by a capricious or unreasonable refusal to accept.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs, and from an order denying the motion of the defendant for a new trial.
    Lamed, Warren & Knapp (Ira D. Warren, of counsel), for app’lt;

      Lachman, Morgenthau & Goldsmith (Samson Lachmun, of counsel), for resp’ts.
   Lawrence, J.

The action was brought to recover damages in the sum of $987.70, and interest, sustained by reason of the refusal of the defendant to accept ten bales of silk purchased for and on his behalf by the plaintiffs. The complaint sets forth that the plaintiffs, commission merchants in New York and Milan, were. employed by the defendant, a silk manufacturer of College Point, to purchase on his account fifteen bales of raw silk, under an agreement whereby the plaintiffs were to import said silk under their own credits, and to receive payment therefor, and for their commission, in four months notes; a purchase of fifteen bales; the expenditure of large sums therefor; the acceptance by defendant of five bales, and the refusal to accept the balance ; notice by plaintiffs of their intention to sell these ten bales on a specified date; the sale and consequent loss of the amount claimed. The answer alleges a contract to purchase the fifteen bales of the plaintiffs; admits the acceptance of five bales, and settlement therefor; also the tender of five additional bales, and refusal to accept them on the ground, as claimed, of the inferiority in quality ; denies tender of the last five bales, and alleges their inferiority, likewise; and contains, further, a counterclaim for $438.12 damages alleged to have been sustained by the defendant on the five bales admitted to have been accepted and used, and five bales of a prior purchase on the ground that the silk was “guaranteed” by plaintiffs “to be of cornaredo filature, strictly classical in quality,” and that it was in reality inferior. The averments of the counterclaim were put in issue by the reply.

The facts in this case are somewhat complicated, the rights and interests of the parties depending upon various letters and telegrams, which were put in evidence on the trial; and, without a .thorough examination of these letters and telegrams it is impossible to arrive at a correct determination of the issues involved in ¡the action. From an examination of the evidence, both documentary and oral, we are of the opinion that the contract between the plaintiffs and the defendant is to be deduced from exhibits A, B, 0, D, E, F, Gr and H, and that they establish that the defendant agreed to purchase, through the plaintiffs, fifteen bales of silk, deliverable during the months of October, November and December, 1888, and fifteen more bales between December, 1888, and February, 1889. In the order for the first fifteen bales, under ■date of July 25, 1888, the defendant said : “ Of course, I expect the same cornaredo as previously received, and terms, four months from delivery here.” In fulfillment of the first order, the plaintiffs notified the defendant that they had bought, “ subject to approval, gold ticket quality, guaranteed equal to cornaredo, which is now unobtainable at any price.” In the order for the .second lot, the defendant stated that he “ expected ■ the silks to be equal to cornaredo, and not of the woolly character.” There was, therefore, no warranty that the goods should be of •cornaredo filature. They were guaranteed to be equal to cornaredo, which was unobtainable. The defendant, under this contract, ■or under these contracts, if the transactions are to be regarded as two separate transactions, accepted fifteen bales, which were delivered under the first order, and five bales, which were delivered under the second.order. His counterclaim is in respect to five bales delivered under the first, and five other bales delivered under the second, order. He had a right to demand, in the first instance, that the silk should be equal to the cornaredo filature; but it seems to us that after acceptance and payment for certain bales, when he had had a full opportunity for inspecting and examining them, he is estopped from now alleging that they were inferior to the cornaredo filature, and from claiming damages therefor. However that may be, the defendant gave evidence tending to show the inferiority of nine, not ten, bales of silk to the cornaredo filature; and the question of the counterclaim was fully submitted to the jury by the justice before whom the cause was tried, and was found adversely to the defendant.

In respect to ten other bales deliverable on the second order, which the defendant refused to accept, different questions are presented. _ It is claimed by the appellant, in the first place, that the plaintiffs are principals, and not agents, in the transaction, and that they were, therefore, guarantors that the silk was equal in quality to the cornaredo filature; and, secondly, that the goods were purchased subject to approval, and that he had the right to Tejeet any of the silk, if, in his opinion, it did not suit him, or was not available for his business, or was not equal to the cornaredo filature for any reason. If this be granted to be a correct interpretation of the contract between the parties, the defendant claims that the court below erred in denying the motion which was made by the defendant to dismiss the complaint at the close of the case. We are of the opinion that this view of the defendant’s rights cannot be maintained. He had not the right capriciously to refuse to approve the goods, if in point of fact they were equal to cornaredo filature ; and there was evidence to the effect that the goods delivered were equal to cornaredo filature. Such evidence being before the court, it had no right to take the question from the jury by a dismissal of the complaint. The question as to whether the goods were equal to those of cornaredo filature was fairly presented by the learned justice who tried the cause to the jury; and, the evidence being conflicting, their determination of the question of fact is final.

It is contended that the justice erred in the comments which he made upon the testimony of two of the expert witnesses; but, referring to the charge, we find no error in that respect. The justice said:

“ If you believe the testimony of Mr. Moll and Bourdis, then the goods furnished by the plaintiffs to the defendant were equal to cornaredo filature, and were classical in quality, and complied with the agreement made by the plaintiffs.”

The justice did not affirm that the whole agreement between the parties had been complied with, in the event of their believing those witnesses, but merely that the plaintiffs had made out that the goods complied with the agreement between the parties; and a perusal of the testimony of those witnesses substantiates the statement. The defendant had a right to a fair and reasonable opportunity to approve the ten bales tendered under the second order; and, if he was not afforded that opportunity, plaintiffs cannot recover in this action. It is strenuously insisted by his counsel that he did not have such an opportunity. This position cannot be sustained. On the 27th of February, 1889, the defendant positively declined to accept any more silk from the plaintiffs, and requested them not to send him any “ further correspondence regarding this matter, as they will find no attention.”

On the 18th of March, 1889, he abandoned this position, and stated in a letter sent to the plaintiffs that on further consideration he would receive the further shipments under the contract, if the quality of the silk was satisfactory as per- agreement, but notified them that he should hold them for damages for defective quality in the shipment of the four bales. These four bales were all part of the first lot, and had been already accepted and paid for ; and, as already stated, it was too late for the defendant to counterclaim in respect to them. As to the remaining ten bales, it appears that the defendant had refused to accept five of them. And, as to the other five, it appears that the condition papers had been sent to him as early as April 10, 1889. The sale did not take place until the 15th of April, or five days later than the papers were sent to him. On the 18th the defendant was informed by letter that he could examine the goods at the warehouse of the auctioneers on Monday, the 15th inst., the day of sale. According to the evidence of Grand, the examination would not have taken over half an hour. We do not think that it can be asserted, in the face of the correspondence and the oral testimony, that the defendant did not have an opportunity to examine the goods as fully as it was necessary to enable him to determine as to their condition and quality. The plaintiffs were not obliged to wait for an indefinite time for him to make up his mind as to whether he would accept or reject the goods ; and, having waited an appropriate time, they were entitled, after notifying him, to sell the same, to save expense and loss.

Various exceptions were taken on the trial to the rulings of the court upon the admission and rejection of evidence, also to the charge as delivered, and to the refusal of the justice to charge certain of the requests made by the defendant, some of which .should be considered. The defendant requested the court to charge that the plaintiffs were not the agents of the defendant, but were commission merchants, and the sellers of this silk, as between themselves and the defendant, and were themselves liable on the guaranty to furnish silk equal to cornaredo. This was refused, and the defendant’s counsel excepted. Standing alone, this refusal might have availed the defendant on this appeal; but, upon reference to the charge as delivered, it will be seen that the court had already instructed the jury that, if the goods were purchased from the plaintiffs, “ the plaintiffs guaranteed that they were equal to cornaredo filature.” He also charged:

“ They have done their duty, they have complied with the law, if they have furnished' to the defendant a quality of goods classical, and equal to cornaredo filature; and it is for you to say, from the evidence in the case, whether or not they did in fact furnish to the defendant this quality of goods.”

And the jury had also been previously instructed as follows :

“ The plaintiffs say that they were employed by the defendant as agents. The defendant denies that, and alleges that he purchased from the plaintiffs. So you will determine, in the first instance, whether the plaintiffs were acting as agents of the defendant, or whether they were acting as principals. These facts are to be determined from the evidence in the case. If the plaintiffs were acting as agents of the defendant, then they were bound to use a reasonable degree of care in carrying out his commands ; and if they used such degree of care, even if they failed in carrying out his command, they would not be liable for the failure. They were bound, as agents, to act in good faith towards the defendant ; and if they have so acted in good faith, and with a reasonable degree of care and skill, such skill as you would expect from men in their business, they are not liable, although there was a mistake on their part.”

The question whether the plaintiffs were acting as principals or agents was on the evidence, as we think, properly left to the jury; and, as they had been fully charged by the court as to the law applicable to either of those relations, it was not error to refuse to state over again a proposition which had already been correctly presented by the court.

The defendant submitted eleven requests to the justice to charge certain propositions. The 1st, 2d, 4th, 8th, and 10th of those requests had been fully covered by the charge. The 5th, 6th, and 7th requests were properly refused, for the reason that the defendant had, by his own acts, precluded the plaintiffs from giving him other and further opportunity to examine the goods, as has been already stated in the previous portion of this opinion. As to all the other requests which were refused, we deem it only necessary to say that the questions which they were designed to present had been already fully presented to the jury in the charge; and it was, therefore, not erroneous to refuse to repeat them.

The exception taken, at folio 54 of the case, to the admission of testimony as to the price obtained upon the sale of the silk, cannot avail the defendant, for the reason that if it should be found by the jury that the defendant had capriciously or unreasonably neglected or refused to accept the goods, regarding the plaintiffs either as principals or agents in the transaction, that testimony was proper to show precisely what damages had been sustained by the plaintiffs by that refusal.

Finally, our review of this case satisfies us that the questions which it involves were fully covered by the judge’s charge; that no error, in substance, was committed during the trial; and that, therefore, the order and judgment below should be affirmed, with costs and disbursements.

O’Brien, J., concurs; Van Brunt, P. J., concurs in result.


author: O’Brien, J.

text:
    John Nelson, App'lt, v. Laura Nelson et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Ysnub—Pabtition .
    Where an action of partition which involves the question of the validity of a will is brought in a county in which but one of the parcels in question is situated, it is proper to change the place of trial to the county in which the testator resided at the time of his death, and in which the witnesses for the defense, who largely outnumber those of the plaintiff, reside.
    Appeal from order changing the place of trial for the convenience of witnesses.

      G. A. G. Barrett, for app’lt;

      Frank B. Lown, for resp’ts.
   O’Brien, J.

This action was brought by plaintiff, as an heir at law and next of kin of Homer A. Nelson, for a partition or sale of the real estate of which deceased died seized, upon the ground of the intestacy of the said deceased. The defendant moved to change the place of trial from New York to Dutchess county, on the ground of the convenience of witnesses. By the affidavits it was made to appear that the testator at the time of his death resided in Dutchess county, owned several parcels of land, only one of which was situate in the city of New York, and that all these, by the terms of the will, which, after a contest, was probated, were bequeathed and devised to his wife and sister. In this action the question at issue is the validity of the testator’s will, which, it is claimed, is void by reason or the testator’s mental incapacity and a failure to execute the same in conformity to the statute.

It would appear that two contests over this will have already been had before the surrogate of Dutchess county, one initiated by Charles Nelson, and subsequently another by the plaintiff, both brothers of the testator, and that in both these proceedings the contestants were unsuccessful; the former having been finally disposed of by the court of appeals in defendants’ favor, and the latter, initiated by this plaintiff, being now pending upon appeal to the general term of the supreme court from the surrogate’s refusal to revoke probate of the will. It was also shown that the testator, at the time of his death, and at the time the will was executed, resided in Dutchess county, and that the witnesses required to establish the defense, who outnumbered those the plaintiff intended to produce upon the trial, were also residents of that county. Upon this ground, of the convenience of witnesses, we think that the learned judge correctly disposed of the motion.

It is insisted, however, that, in addition to this ground, the place of trial should not have been changed, for the reason that, as plaintiff claims, there exists a prejudice and a feeling in the community against his position as plaintiff in this action which would render it impossible to have a fair and impartial trial, and, therefore, under the discretionary power conferred by the Code, § 987, to change the place of trial in order to secure an impartial trial, the convenience of witnesses, or the ends of justice, that the court may send the cause to another county, even though, under the provisions of the statute, it would not be the proper county. We think, however, that the suggestion that an impartial trial cannot be had in Dutchess county is, upon the showing here made, without merit. In this case, as was said in the case of Lane v. Town of Hancock, 29 St. Rep., 635, “ unless there has been a plain and evident misuse of such discretion, the decision of the special term must stand.” Upon an examination of the facts here presented, we do not think that there was any such misuse, but that the motion to change the place of trial was properly granted.

The order appealed from should, therefore, be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


author: Van Brunt, P. J.

text:
    The Metropolitan Savings Bank, Resp't, v. The New York Elevated Railway Co. et al, Appl'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Railroad—Elevated—Damages—Evidence.
    In an action by a corporation against an elevated railroad where the damages claimed consisted in part of a loss of rent from another corporation, a tenant, it is not error to exclude evidence as to the ownership of stock in the tenant corporation, as the mere fact of identity of stockholders of that corporation and the officers of the plaintiff would not necessarily show that the tenant obtained any undue or improper advantage in the matter of renting of the premises occupied by it.
    Appeal from j udgment in favor of plaintiff entered upon decision of the court.

      Davies & Bapallo, (Julien T. Davies and B. Tolies, of counsel)) for appl’ts;

      Hutchins & Platt (A. S. Hutchins, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to procure an injunction against the violation by the defendants of the property rights of the plaintiff in certain premises owned by it at the corner of Seventh street and Third avenue, in the city of Hew York. The court, upon the trial, awarded a certain sum as past damages to the rental value of the property, and also fixed another sum to be paid by the defendants in lieu of the issuing of an injunction against them. It is claimed upon the part of the defendants that the past damages were excessive, unwarranted by the evidence, and in conflict with the other findings of the court. An examination of the testimony in this case shows that the conclusion of the court seems to have been entirely justified by the evidence introduced in respect to the loss of rents which had accrued subsequently to the erection of the defendants’ structures and the operation of their road.

The claim of the defendants that it "was error to exclude the testimony as to whom the stock of the Stuyvesant Safe Deposit Company, the occupant of the basement of the building, belonged, does not seem to be well founded. It would appear that it was claimed that such stock was held by the officers of the Metropolitan Savings Bank, the plaintiff, the owner of the building in question ; and it seems to be urged that that fact necessarily weakened the evidence as to the amount of rent paid by the safe deposit company. We cannot see the force of this position. If it was claimed that there were any circumstances connected with the making of the lease which affected its integrity, undoubtedly the defendants would be entitled to prove the same; but the evidence offered did not tend in that direction, as the mere fact of the identity of the stockholders of the Stuyvesant Safe Deposit Company and the oificers of the plaintiff did not necessarily tend to show that the safe deposit company had obtained any undue or improper advantage in respect to the renting of the premises occupied by it. The defendants should have gone further, so as to have shown some connection between the question asked and the object of the testimony which is now first disclosed.

The judgment should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.


author: Yah Brunt, P. J.

text:
    Adolfo Hegewisch, Rec'r, Resp't, v. John S. Silver, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Appeal—Dismissal of complaint.
    Where a motion for dismissal of the complaint on several grounds is denied, but upon a new ground being added and the motion reargued generally it is granted, Held, that the order not being limited or founded upon the last ground alone, it should be upheld if any of the grounds stated were well taken.
    3. Receiver—Action by—Bond.
    Where the order appointing a receiver contains a condition precedent to his taking possession of the property that he should file a bond, proof of his giving such bond is necessary to the maintenance of an action by him.
    Appeal from an order granting a new trial after dismissing complaint in an action upon a promissory note.

      Seed & McKewan (J. H. McKewan, of counsel), for app’lt;
    Seward, Guthrie & Moraweiz {Ohos. Steele and W. I). Guthrie, of counsel), for resp’t.
   Yah Brunt, P. J.

In consequence of the manner in which this case was tried and the appeal book came up, it is somewhat difficult to determine what questions are before the court upon this appeal; but we do not think there is any doubt as to the authority of the court to entertain the motion for a new trial, as it seems to be authorized by § 999 of the Code of Civil Procedure, upon the exceptions taken at the trial. That section provides that the judge presiding at a trial by a jury may, in his discretion, entertain a motion made upon his minutes at the same term to set aside a verdict or a direction dismissing the complaint, and granting a new trial upon exceptions. The granting of a new trial necessarily includes the setting aside of a verdict, if one has been rendered, or the setting aside of a direction dismissing the complaint, if that has been the result of the trial; and, therefore, the motion for new trial embraces all that the section authorizes. It is claimed, however, by the counsel for the respondent that the only question before this court is whether or not the court erred in dismissing the complaint upon the last ground specified by the counsel for the defendant at the close of the plaintiff’s case. It is true that the record shows that various grounds for dismissal were stated, and that the ruling of the court then was that the motion be denied. The counsel then added an additional ground for dismissal, and it appears that the counsel for the plaintiff argued in opposition to the motion to dismiss generally, without any limitation, and the motion to dismiss was finally granted, and an exception taken by plaintiff. We cannot see from this record that the motion was necessarily founded upon or limited to the last-mentioned ground. The court evidently reconsidered its previous ruling, and decided to dismiss the complaint Therefore, any of the grounds stated, if well taken, were sufficient to justify the ruling.

This action was brought by a receiver appointed by the United States court. The order appointing the receiver provided, as a condition precedent of his taking and holding possession of the property of which he was appointed receiver, that he should file a bond. There was no evidence in the case whatever that the receiver, plaintiff, ever filed any bond; and that was one of the grounds for the dismissal. It was expressly held by the court of appeals in Matter of Christian Jensen Co., 128 N. Y., 550; 40 St. Rep., 621, that a receiver cannot interfere with the property of which he is appointed receiver until after he has filed his bond. A large number of cases are cited for the purpose of showing that this failure of proof was not fatal to the plaintiff’s right to recover; but in each of these cases it will appear upon examination that there was an attempt to comply with the law, but, because of some irregularity in the bond, it was claimed that no sufficient bond had been filed to comply with the law. In the case at bar there is no proof whatever of any attempt to comply with the requirements of the order appointing the receiver in respect to the filing of a bond, which was a prerequisite to his having any authority whatever to assume the office of receiver, by the very terms of the order appointing him.

Reference is made to sojne statement contained in the case in regard to what the plaintiff’s counsel stated, upon the argument of this motion, had occurred during the trial, and what he understood and assumed at the trial; but this memorandum cannot be considered by the court, as it rightfully forms no part of the record. We are of opinion, therefore, that the plaintiff failed to make out a case, and that the court was right in dismissing the complaint, and that the order appealed from should be reversed, with costs.

O’Brien and Barrett, JJ., concur.


author: Yan Brunt, P. J.

text:
    Julius Chesebrough, Resp't, v. Daniel D. Conover, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    New trial—Improper remarks op counsel.
    A new trial will not be granted on account of improper remarks by counsel appearing in tbe notes of the stenographer, who makes affidavit that such notes as to said remarks are not full, were not taken at the time, and. were made from the dictation of counsel on the opposite side.
    Appeal from an order denying a motion to set aside a verdict for plaintiff in an action to recover the value of personal services.

      Thomas M Stewart (A. Gr. Fox, of counsel), for app’lt;

      Calvin D. Van Name {L. Sanders, of counsel), for resp’t.
   Yan Brunt, P. J.

This was a motion to set aside the verdict upon the ground of alléged improper conduct upon the part of the counsel for the plaintiff at the opening of the case, it being claimed that he unnecessarily stated the result of a previous trial. The record upon this appeal presents some rather curious features. We first have the affidavit of the stenographer who was present at the trial and took the notes therefrom, made on behalf of the moving party, to the effect that, annexed to said affidavit, was a true and correct statement of what transpired upon the trial after the impaneling of the jury, and prior to the taking of the testimony in said action, the statement thereto annexed being a full and accurate transcript of the stenographic minutes of deponent taken by him while reporting said proceedings. On behalf of the plaintiff, this same intelligent stenographer makes another affidavit that he took stenographic notes of the proceedings upon the trial of the above entitled action; that he thereafter made an affidavit in this action, and attached thereto a statement of what transpired upon said trial after the impaneling of the jury; that such minutes as to plaintiff’s counsel's words were not full, because the same was not a motion, but an argument upon a motion made by defendant’s counsel; that the words that appear were not taken when spoken by Mr. Sanders (plaintiff’s counsel); that the words were not taken down until deponent was specially requested to do so by defendant’s counsel, and ■ that what appears as having been spoken by Sanders was dictated to deponent by defendant’s counsel; and that all that was said by Sanders did not appear upon the minutes. Here we have the case of a stenographer presiding at a trial at one of our circuits swearing that his minutes are a true and correct statement of what transpired upon the trial, and then subsequently swearing that not only his previous affidavit was false, but that his minutes are entitled to no greater credit than his oath.

It is very evident that this stenographer knew nothing of the business pertaining to his position, as he seems, instead of taking down what transpired at the trial, at the private request of one of the counsel, to have taken down the statement of the counsel of what had transpired, without either the knowledge of the court or of his opponent. A more flagrant breach of the duty of a stenographer upon a trial has never been called to the court’s notice. Upon such a record it was impossible for the court to take any action. It was impossible to determine whether the statement was necessarily or unnecessarily made, or whether it was made at all. If the defendant’s counsel had desired to have anything upon the minutes which had been omitted therefrom, it was his duty to have called the attention of the court thereto, and the court could have determined what should have been placed upon the minutes. The counsel was not justified in dictating to the stenographer without the knowledge of the court; and the stenographer seems to have had so little notion of what his duties were that he takes the defendant’s counsel’s statement of what transpired upon the trial, and reports it as being taken by himself at the time of the alleged occurrence.

The order should be affirmed, with costs.

O’Brien, J., concurs.


author: Barrett, J.

text:
    Erwin Strickland, Resp't, v. Richard L. Leggett, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

      1. Stock—Bona fide purchaser—Burden of proof.
    In an action on a note given by defendant to one M., defendant counterclaimed for certain stock given to M. as collateral for said note. Plaintiff claimed to have purchased said stock as an independent transaction, without knowledge that it was collateral. Held, that the burden of proof was upon defendant to establish his allegation that plaintiff took and held them as collateral.
    2. Same.
    Where the only evidence on the question of good faith in the transfer was that oí M., who testified that nothing was said _ on the subject of collateral, Held,, that it was not necessary for plaintiff'to take the stand ana deny notice.
    Appeal from the judgment entered upon the verdict of a jury-in favor of the plaintiff, dismissing appellant's counterclaim, and from an order denying defendant’s motion for a new trial in an action against the indorser of a promissory note.

      Charles D. Ridgway, for app’It;

      Freling H. Smith, for resp’t.
   Barrett, J.

This action was upon a promissory note made by the defendant, payable to the order of N. Gr. Miller & Co., and indorsed to the plaintiff. Miller & Co. received from the defendant 100 shares of a certain railroad company’s stock, as collateral security for the payment of the note. These shares were also transferred by Miller & Co. to the plaintiff, and the question which was litigated at circuit was with regard to this latter transfer. There was no defense to the note, but the defendant interposed a counterclaim for the value of the shares. He alleged that the shares were transferred with the note, and that the plaintiff took them just as Miller & Co. held them, namely, as collateral to the note. The plaintiff, on the other hand, claimed that the purchase of the shares was independent of the note, and that he knew nothing at that time about their being collateral. The burden wasmpon the defendant of establishing his averment; for, previous to the sale to plaintiff, he had transferred the stock into Nathan Gr. Miller’s name upon the books of the company, and thus enabled Miller to give a good title to a purchaser for value. Thg main question, therefore, was whether the plaintiff, when he purchased these shares, had notice of the fact that Miller & Co. held them as collateral to the note, or whether he was put upon inquiry. We have examined the record and find no evidence to support the defendant’s contention on this head. On the contrary, the only witness who gave any testimony about the transfer (Nathan Gr. Miller) stated distinctly that when he sold the stock to the plaintiff nothing whatever was said “ upon the subject of collateral.”

It seems that, after the sale to plaintiff, Miller signed a paper in which he stated that he had sold these securities, and described them as “ the notes and collateral of R. L. Leggettbut this paper was not exhibited to the plaintiff, and his counsel’s possession of it upon the trial was fully explained by Miller. It seems that this paper was also produced in obedience to an order for its inspection. That proved that the plaintiff had the paper in his possession when the order was made, but not that he had it at the time of the purchase of the shares. It was clearly shown that Miller had possession of the paper long after the purchase, and that he subsequently delivered it to the plaintiff’s attorney. When the plaintiff made the purchase he had no knowledge of this paper, or notice, direct or indirect, that the stock was collateral. There was no reason why the plaintiff should take the witness stand and deny notice. There was nothing to deny until something was proved, and the defendant rested, not only without proof of notice, but with affirmative proof to the contrary. ' The judgment and order denying the motion for a new trial should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


text:
    Mary Monteith, Adm'rx, Resp't, v. John Finkbeiner, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Landlord and tenant—Tenement house—Neuligence.
    Plaintiff’s intestate, while calling upon a tenant of the defendant in a tenement house, caught his foot in a rubber covering at the head of the stairs and fell down the flight, receiving injuries from which he died. It appeared that the rubber covering had been loose for eight months and that the attention of the housekeeper had been called to it. Held, that a motion to dismiss the complaint was properly denied, and the question of negligence left to the jury.
    Appeal from an order denying a motion for a new trial and from a judgment entered in favor of plaintiff for dámages resulting from the death of her husband in falling down a staircase on premises owned by defendant

      Charles G. F. Wahle, Jr., for app’lt;

      A. G. Vanderpoel, for resp’t.
   O’Brien, J.

The grounds relied upon by the appellant for a reversal of the judgment are that the court erred in denying the motion to dismiss the complaint, and in refusing a new trial upon the ground that the verdict was contrary to evidence and to law. With respect to the latter, there is no statement in the case that it contains all the evidence, and we cannot pass upon the question as to whether or not the verdict was contrary to the evidence. There being no exceptions relating to the admissibility or exclusion of evidence, the only question of law presented is upon the exception to defendant’s motion to dismiss the complaint. Upon examining the record, it will be found that the witnesses for the plaintiff testified that the injuries which resulted in the death of plaintiff’s intestate were caused by falling down the second flight of stairs, his foot having caught in a rubber which was placed as a covering on the top of the staircase. One of these wituessés testified as follows:

* “ That rubber was clean across the step. From the first time I went in the house I noticed that India rubber loose. It would be about eight months. From the time I first saw it until the date of the accident my attention was called to it frequently while scrubbing. The condition remained the • same. I also spoke to the housekeeper, and told her it ought to be fixed. Mrs. Bichards is her name. I was not there more than four weeks when I called her attention to it. I lived there about eleven months. I had a mishap on that step. I tripped on that step, and caught the banister.”

The other witness testified'as follows:

“ The condition of the edge of the platform of the first step on the third floor ; it is a rubber, and there is iron on the edge of it, and the rubber was caught on the two sides with tacks and in the centre was loose. I remember it well, for five weeks before that I came nearly killing myself with a basket of clothes.”

This witness’ testimony is entirely consistent with that given by the other witness, that this defect in the rubber which caused the injuries complained of had existed for a period of about eight months. She testified that she had lived in the premises for nine years; and while she did not state how long before the accident she first noticed it, she does state that, five weeks before, she herself tripped over the same rubber. Upon this evidence we think the court was right in refusing to dismiss the complaint. As was said by Mr. Justice Barrett in Alperin v. Earle, 55 Hun, 212; 27 St. Rep., 806:

“The landlord is responsible for injuries to his tenants resulting from the dangerous condition of those parts of the building which he reserves for the common use, and over which he retains control, but only when he has been guilty of actual negligence with regard thereto. ■ To bring him within this rule, 1 it must appear,' as was said in Henkel v. Murr, 31 Hun, 30, ‘ that with some notice of the condition of things, or under some circumstances equivalent to notice, such as an unreasonable omission to .ascertain the condition, he had failed to make the necessary repairs or changes called for by the condition or exigency.’ ”

This case cited of Henkel v. Murr is also authority for the proposition “ that the same measure of liability for injuries sustained by negligence of the landlord extends to one socially visiting or calling upon a tenant as protects the tenant himself, because the use of the hall and staircase for the purpose of enjoying such visits and calls is by necessary implication, where not expressly provided for, within the reasonable intent of the demise of the rooms.” The plaintiff’s intestate here was visiting one of the tenants, and was injured by reason of the defective condition of a portion of the premises with respect to which the obligation of keeping it in a safe condition was imposed upon the landlord. While there was no evidence of actual notice brought home to the landlord, there was evidence showing that the housekeeper went up and down the stfirs, and that her attention was called to the defect; and, in addition, it appears that the step was allowed to remain in this imperfect and dangerous condition for a period of eight months, if the testimony of plaintiff’s witnesses was tobe believed. What weight or credibility was to be attached to their testimony was a question for the jury. If credited, it tended to establish “ such an unreasonable omission to ascertain the condition” of the premises as to make it equivalent to notice. We think that the court was correct in refusing to dismiss the complaint, and, as there is no other question presented for our consideration, the judgment should be affirmed, with costs.

Yak Brunt, P. J., and Barrett, J. concur.


text:
    The People, App'lts, v. The New York City Central Underground Railway Co. et al, Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. COKPOBATIONS—ACTION TO DISSOLVE—PASTIES.
    In an action to dissolve a corporation for failure to carry on its business for over a year, a corporation from which the one in question claims to have acquired its rights, and which is alleged to have ceased to exist before the transfer of such rights, is a proper party.
    2. Same—Pleading. .
    A complaint in such an action alleging that the defendant has never assumed the performance of what is claimed to be its lawful business; that it has not commenced the construction of its tunnel or railway, and that no proceedings to condemn the right of way have been taken, is sufficient.
    3. Same.
    The bringing of proceedings for a mandamus to compel the commissioner of public works to permit a removal of pavements to allow the corporation to construct a tunnel and road not authorized by the charter under which it acts, is not the pursuit of the lawful business of the corporation contemplated by the statute.
    Appeal from an interlocutory judgment entered upon an order sustaining the demurrer to the amended complaint in an action to dissolve the corporation.

      Simon W. Rosendale, att’y-gen. (Theo. Gonnoly, of counsel), for app’lts;

      K W. Page, for resp’ts.
   Van Brunt, P. J.

There are two demurrers in this case, one by the New York City Central Underground Railway Company, and the other by the New York Underground Railway Company, each upon the ground that the complaint does not state facts sufficient to constitute a. cause of action; and that causes of action have been improperly united in said complaint. It is urged that the demurrer of the New York City Central Underground Railway Company is well taken, because no judgment is asked against this defendant, and because it is alleged in the complaint that said corporation, before the commencement of this action, had ceased to exist. It is to be observed that the rights, if any, which the New York Underground Railway Company possesses, are claimed to have been acquired from and through the New York City Central Underground Railway Company; and it is alleged in the complaint that no such right could pass, because the New York City Central Underground Railway Company had then ceased to exist, because of failure to comply with legal requirements. Under these circumstances, although, perhaps, the New York City Central Underground Railway Company was not a necessary party to this action, it clqarly was a proper party, in order that it might be judicially determined that it had died prior to the alleged transfer of its rights, which question would not then, thereafter, be left open to future debate or discussion.

As to the demurrer of the New York Underground Railway Company, another question is presented, and that is as to the sufficiency of the allegations contained in the complaint. It is conceded that the right of action, if any, is derived from the third subdivision of § 1785 of the Code, which authorizes an action to procure a judgment dissolving a corporation created by and under the laws of this state, and forfeiting its corporate rights, privileges, and franchises where it has suspended its ordinary or lawful business for at least one year. The allegations of the complaint are that the New York Underground Railway Company has never assumed the performance of what it claimed to be its lawful business; that it has constructed no part or portion of said tunnel or railway (referring to a supposed right of said defendant), and has not commenced the construction of the same; and no legal proceedings for the condemnation of the right of way, referring in any way to the said defendant, have been taken or have ever been pending. This allegation, it is claimed, is insufficient to bring it within the provisions of the subdivision of the Code referred to; and that it is not an allegation that it suspended its ordinary business, and that, therefore, the allegation was not sufficient.

We think this criticism of the allegation cannot prevail. If this company suspended its lawful or ordinary business for at least one year, it was liable to an action to declare forfeited its rights, privileges and franchises; and when it is alleged in the complaint that the defendant has never assumed the performance of what it claims to be its lawful business, and designated things as not done which in other parts of the complaint are shown to be things which the corporation claimed to be incorporated to do, it seems to us that the only construction to be put upon the allegation is that the defendant has failed to exercise its corporate franchises and privileges.

It certainly is not to be presumed that this company has been exercising privileges which it admits to have been illegal and unlawful ; and there is no presumption that it has conducted any business whatever, in view of the broad nature of the allegation contained in the complaint. It is true that there is an allegation in the complaint that the defendant, the New York Underground Railway Company, has commenced proceedings in the superior court for a writ'of mandamus to compel the commissioner of public works to grant his permit to remove the pavements, in order that it might proceed to construct a tunnel and railway not authorized by the amended charter of the New York City Central Underground Railway Company, of which it claims to be the successor. If the demand to compel a license to do any unauthorized act is the pursuit of the lawful business of the corporation, then, perhaps, after a long period of years, this corporation has attempted to do some business. But we hardly think that business of this character is that which is contemplated by the provisions of the statute. Upon the whole case, therefore, we are of opinion that the demurrers should have been overruled, and the judgment should be reversed, with leave to defendants to answer upon payment of the costs of the court below and of this appeal.

O’Brien and Barrett, JJ., concur.


author: O’Briem, J.

text:
    The Roosevelt Hospital, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Railroad—Elevated —Evidence.
    An error, if it be such, in allowing an expert to testify as to the_ increase in values of adjoining property in streets contiguous to plaintiff’s premises in percentages, is cured by his statement, on cross-examination, of the fee values of said lots in dollars.
    2. Evidence—Photographs.
    A photograph is admissible in evidence, although its correctness is not proved by the photographer who made it, where a person familiar with the premises, after examining it, testifies that it correctly describes the same and is correct.
    Appeal from a judgment entered at special term, restraining the defendants from operating their elevated railroad in front of plaintiff’s premises, 314, 316 and 318 Pearl street, unless and until the defendants shall make compensation therefor by paying $7,000._

      Davies & Rapalb (Julien T. Davies and /Samuel B. Rogers, of counsel), for app’lts ;

      Bwrrill, ZabrisJcie & Burrill (O. ZabrisJcie, of counsel), for resp’t.
   O’Briem, J.

This, like many similar actions, was brought to restrain the maintenance and operation of defendants’ railroad in front of plaintiff’s premises, and for damages. But three questions are brought to our attention upon this appeal. The first is the claim that it was error to admit estimates in percentages of the comparative increase in fee value of property in the Bowery and other streets. The basis of the objection is that this method of comparison by percentages is wrong.

We fail, however, where the question as to the values of adjoining property was limited to streets contiguous and adjacent to the plaintiff’s property, to see any difference, when a comparison is endeavored to be shown, between the opinion of an expert expressed in dollars and one expressed in percentages. The former class of testimony has been allowed, and we regard the latter as equally unobjectionable. Here, the expert, having his limits of comparison circumscribed, was asked whether there has been any general percentage of increase or decrease in the fee value of real estate between 1877 and the present time. Upon cross-examinatian, this same expert was required to state with respect to the same property the value in dollars of the lots on these adjacent streets; and, whatever error there may have been in the method pursued by plaintiff in framing a question which required the expert to give the percentage of increase or decrease in the fee value, this was cured upon cross-examination by specific questions calling for a statement in dollars of the fee values of lots on the same streets cover! ng the same periods.

The second ground presented relates to an alleged error in considering the running of trains in fixing fee damage. Eeliance is placed in the law as settled in the case of Sperb v. Railway Co., 41 St. Rep., 155. As said in Kiep v. Railway Co., 44 St. Rep., 699, where a similar objection was urged: “We fail, however, to discover * * * that in estimating the amount the plaintiff

should, receive as damage to the fee the referee included such damages as arose from the incidental use and operation of the roads.” There, as here, the exceptions related to the refusal to find certain proposed conclusions of law asked for by the defendants.

The third error assigned relates to the admission of a photograph without there having been, as claimed, proper proof of correctness by the man who made it. The cases relied upon by appellants of Cowley v. People, 83 N. Y., 477, 478; People v. Buddensieck, 103 N. Y., 500; 3 St. Rep., 664, and Ruloff v. People, 45 N. Y., 214, are direct authorities for allowing the admission of photographs in evidence, and do not go to the extent of holding that because the correctness of the photograph is not proved by the man who made it, therefore it is to be excluded. Here, before its admission in evidence, a person entirely familiar with the premises and the location of the defendants’ structures testified, after examining the photograph, that it correctly described the same, and that it was in all respects a correct photograph. Upon such foundation being laid, we do not think that the fact that the photographer himself was not produced was fatal to its competency. We think the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


text:
    The Roosevelt Hospital, Resp't, v. The New York El. R. R. Co. et al., Appl'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Appeal from judgment of special term, restraining the operation of defendants’ road, and for damages.

      Davies & Rapadlo (Julien T. Davies and Samuel B. Rogers, of counsel), for appl’ts ;
    Burrill, Zabriskie & Burrill ( G. Zabriskie, of counsel), for resp’t
   O’Brien, J.

The questions presented upon this appeal are similar to those disposed of in the action between the same parties submitted herewith, and the disposition therein made is controlling here.

Judgment affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


text:
    Amelia White, Resp't, v. Antonio Rasines et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Duress—Mortgage.
    In an action to set aside a note and mortgage on the ground of duress, it appeared that plaintiff was unable to read or write, and understood English but little; that defendants, who represented a bank, procured her to sign the papers on the representation that it was necessary to prevent her son-in-law being sent to prison for forgery, and also that they were sham papers and would be returned to her. It also appeared that they were not read over or explained to her. Held, that the court properly refused to dismiss the complaint.
    Appeal from a judgment entered at special term in an action to set aside a mortgage on the ground of duress and fraud.

      Aslibel P. Fitch (Charles J. Fislce, of counsel), for app’lts;

      W. A. Copp, for resp’t
   O’Brien, J.

This action was brought to declare void a promissory note for $2,103.42, and also to declare void a certain indenture of mortgage given to secure the payment of said note, and also to declare void an assignment of said mortgage, upon the ground that the execution and delivery of such instruments were obtained through the false and fraudulent representations of defendants, and through threats and intimidation, and upon the further ground that the plaintiff was not aware of the nature of the instruments executed by her. As to whether or not these grounds were sustained were questions of fact, and in the record before us there is no statement that it contains all the evidence. Two exceptions, however, were taken by the defendants on the trial; one relating to a question asked as to the condition of plaintiff’s health just prior to the occurrence, which has not been urged upon this appeal, and the other, to the denial of the motion to dismiss the complaint. This last exception presents a question of law as to whether, upon the evidence presented by the plaintiff, the complaint should have been dismissed. According to the evidence of plaintiff’s witnesses, certain of the defendants, who were connected with or acting in the interest of the Canal Street Bank, came to plaintiff’s house, and, after making her aware that Dawson, her son-in-law, had discounted in their bank a note which they claimed was forged, procured from her the note and the mortgage which are sought to be set aside in this action. The plaintiff at that time was the owner of the premises known as “ 354 First Avenue,” and was an old lady, who could neither read nor write, and who but imperfectly understood the English language, the testimony upon the trial being procured with the aid of an interpreter. This visit to plaintiff’s house, it would appear, was the result of interviews between certain of the defendants and the husband and son of the plaintiff, who had on the same afternoon gone to the bank for the purpose of making some arrangement to prevent the prosecution of Dawson, the plaintiff’s son-in-law.

What was done and said between those parties at the bank is entirely immaterial. The question presented was whether or not the note and mortgage were the free and voluntary act of the plaintiff, made with the knowledge of what she was signing, and intending to obligate herself thereby. The solution of this must depend upon what took place when all the parties, in the afternoon of the same day, visited the plaintiff, and procured from her the note and the mortgage. It would appear that little was said by any of the other parties to her, but that most of the conversation conducted in English between them was not understood by the plaintiff, and that the portion which she did understand was conversation between herself and her son in the German language. She testified and he testified that it was represented to her that it was necessary that she should sign the papers, which were not read to her, and which she claimed she did not understand, in order to prevent her son-in-law being sent for twenty years to prison, and. that as an inducement it was represented that the papers were sham papers, which were to be returned to her in a few days. This testimony of the plaintiff and her son, supplemented as it was by that of her husband and her daughters as to what took place in plaintiff’s house, all to the same effect, that the character of the papers was not explained, and that the plaintiff did not execute the same voluntarily, made out a prima facie case, and the learned trial judge correctly ruled in refusing to dismiss the complaint. The cases of Sistare v. Hecksher, 45 St. Rep., 699, and Barry v. Society, 59 N. Y., 587, state the principles applicable to cases involving facts similar to those presented in this case. We see no reason for disturbing the rulings made by the learned trial judge, and are, therefore, of opinion that the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concur.


text:
    In the Matter of The Orient Mutual Insurance Co.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Receivers—Compensation.
    The court has no power to allow a receiver extra compensation in addition to the five per cent, on the sums passing through his hands, allowed by statute.
    Appeal from an order fixing the compensation of the receiver of the Orient Mutual Insurance Company and granting him an additional allowance.

      S. W. Bosendale, atty. gen. (William J. Lardner, dcp. atty. gen., of counsel), for app’lt;

      E. Wells, for resp’t.
   Yan Brunt, P. J.

By § 3320 of the Code, a receiver, except as otherwise provided, is entitled, in addition to his lawful expenses, to such commission, not exceeding five per cent, upon the sums received and disbursed by him as the court by which or the judge by whom he is appointed allows; and by chapter 378 of the Laws of 1883, it was provided that receivers should be allowed to receive as compensation for their services as such receivers five per cent for the first $100,000 actually received and disbursed, and 2% per cent for all sums received and paid out in excess. It seems to be certain that either one or the other of these statutes covers the question of compensation of receivers, and that, where such compensation is fixed by statute, the court has no power to exceed the amount therein allowed under the guise of extra compensation. By § 3320 the receiver had no claim whatever, as a matter of right, to any fixed sum as a compensation, but was limited to five per cent upon the sums received and disbursed by him. By § 2, chap. 378, of the Laws of 1883, the receiver was entitled to claim the commissions therein mentioned. But simply because no prohibition was contained in the section it did not give the court power to make such allowance as it might see fit. The very language of the section shows that the receiver is to have five per cent on the first $100;000 and 2^- per cent on the excess; the legislature clearly intending a limitation in the amount which might be paid to the receiver. This construction has been placed upon this act by this court in Matter of Security Life Ins. Co., 31 Hun, 36; affirmed, 95 N. Y., 654. The learned court below seems to have followed a previous decision of the court upon this question, which, however, was clearly erroneous. The order • appealed from should be modified by deducting therefrom the excess allowed the receiver, with costs of this appeal.

O’Brien and Barrett, JJ., concur.


text:
    John Craig, App'lt, v. Maria Craig, Resp't.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    • Reference—Report.
    When the report of the referee is signed, and the parties notified thereof, although the same is not filed, the decision is rendered within the meaning of § 1023 of the Code, and the referee has no power to alter or amend the report, and the same will not he recommitted to him to hear reargument on questions already passed upon.
    Appeal from order recommitting report to referee.

      P. & D. Mitchell (A. J. Skinner, of counsel), for app’lt;

      Peck & Field (Edward S. Peck, of counsel), for resp’t.
   Barrett, J.

This case differs from Fairman v. Brush, 39 St. Rep., 231, and Schultheis v. McInerny, 37 id., 537, in the fact that here the referee has decided the question sought to be reconsidered, and the object of recommitting the report is to induce him to change his decision. In Fairman v. Brush we held, following Schultheis v. McInerny, that the court had power to require a referee to make his findings sufficiently definite to raise the question presented upon the appeal. But this was all we decided. We did not question the well-settled rule that a referee had no power to alter his report after he has signed and delivered it The real question here is whether the referee had such power after signing his report, and notifying the parties thereof, but before ■delivering or filing it We think not In Ayrault v. Sackett, 17 How. Pr., 509, it was held that “signing the report, together with notice of the fact to the party entitled to it, are the definite acts which close his, the referee’s, judicial authority in the case ; or, rather, they are the acts which preclude his opening the case for further evidence or consideration.” The court there added that the controlling circumstance was “ that the case remains in his, the referee’s, hands until the report is made and signed, and the parties, or the one entitled to the report, is duly notified of it” This case was followed in Kissam v. Hamilton, 20 How. Pr., 376, where the court held that “ the case is not decided until the report is signed. Until then they, the referees, may open it for further evidence, reconsider and change their conclusions.” The same rule was laid down in Quackenbush v. Johnson, 55 How. Pr., 96, and in Waters v. Shepherd, 14 Hun, 223. In Quackenbush v. Johnson it was held that after the referee has made and signed his report, and notified the party entitled to it, his duty as a referee is ended. He had no power thereafter,” said Noxon, J., “to amend or alter his report.” In Waters v. Shepherd, the report was made, and the parties notified of its terms. Upon this the court observed: “ It was a completed thing and beyond the power of the referee to withhold or change it, after the service of the notice.” The question as to when, the case is actually decided should not be confused with questions relating to the termination of the reference for failure to deliver or file the report within sixty days after the cause is finally submitted: It is now settled that, to prevent the termination of a reference by notice under § 1019 of the Code of Civil Procedure, the report must be actually delivered to the attorney of one of the parties, or filed with the clerk within the limited period. Little v. Lynch, 99 N. Y., 112. But this has nothing to do with the question as to when the judicial function ceases. That occurs when the referee has actually decided the case, signed the report embodying such decision, and notified the parties thereof. It is thus that the decision is rendered,” within the meaning of § 1023 of the Code of Civil Procedure. If the “ decision ” is not “ rendered ” until the report is actually taken up, that is, delivered, or filed, what becomes of the provision contained in § 1023, that findings must be submitted before the decision or report is rendered ? It surely was not the intention to permit such findings to be submitted after the referee has announced his judgment. We think the decision is rendered when such judgment, embodied in a report duly signed, is announced. Certain consequences flow from the failure to deliver or file the report, but neglect in that respect does not, while it continues, keep the judicial function in abeyance.

In the present case there was no clerical error, technical omission, or inadvertence. The defendant’s counsel, in his brief submitted to the referee, asked for costs, yet the report concludes that the complaint should be dismissed, without costs. When the defendant’s attorney observed this, he paused, as he was about to take up the report, and expressed a desire to be heard on the question of costs. The referee then certified that he desired to hear counsel upon that subject, and to make such change or modification with regard to costs as might seem proper to him after hearing argument. He did not act inadvertently, however; for the defendant’s attorney tells us that the decision disallowing costs was because the referee “ did not think the question one of practical importance.” It appears, also, that the referee furnished the plaintiff’s attorney with a copy of the report, unsigned, and returned the plaintiff’s proposed findings, passed upon as required by law. Upon these facts the case is brought fully within the principle of Bank v. Levy, 41 Hun, 462; 3 St. Rep., 298, where an order was reversed which remitted a report to enable the referee to supply an inadvertent omission to award costs. While it is not necessary for us to go to this extreme length, we think it entirely clear that where the judicial function has once been fully exercised, the referee should not be reinvested with such function for the purpose of more deliberately reconsidering questions already passed upon and decided.

The order appealed from should, therefore, be reversed, with ten dollars costs and the usual disbursements, and the motion to recommit denied.

Tan Brunt, P. J., and O’Brien, J., concur.


text:
    Julius F. Chesebrough, Resp't, v. Daniel D. Conover, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Contract—Validity—Public policy.
    In an action for services under a contract to prepare papers, acts and resolutions to be presented to the legislature, to see certain parties, to go to Albany and use arguments in relation to certain legislation, the question ás to whether such contract is void as against public poney as calling for improper solicitation of members of the legislature is one proper to be determined by the jury.
    2. Evidence—Contradiction of witness.
    Where the defendant, on cross-examination, has stated that he had characterized plaintiff’s claim in conversations as a blackmailing scheme, the plaintiff has a right to show that this did not correctly represent defendant’s attitude when the claim was spoken of and its settlement urged.
    3. Same.
    Where, upon cross-examination of a party, portions of his testimony on a former trial are brought out, which, standing alone, would give an erroneous impression of the nature of his entire former testimony, he may properly be allowed to give the remainder of such testimony.
    4. Services—Time op payment.
    Where the right to payment for services depends on performance of the contract, and not upon a demand, the obligation to pay is complete when the contract is performed.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Thomas K Stewart (A. G. Fox, of counsel), for app’lt;

      Galvin J). • Van Name (L. Sanders, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover for personal services rendered under an alleged contract between the plaintiff and the defendant. The services of the plaintiff were to assist the defendant to obtain the right, privilege, franchise and authority for building the extension of a railroad through Fortyseoond street; to draw papers, acts, and resolutions to be presented to parties, to the legislature, common council, etc. The answer denies the making of the contract in suit, and denies any knowledge sufficient to form a belief as to the rendition of any services by the plaintiff after the alleged making of the contract, and denies positively that they were rendered at the defendant’s request. The plaintiff having given evidence tending to prove the alleged contract, and the services rendered thereunder, and the defendant having given evidence to the contrary, the questions raised were duly submitted to the jury who found a verdict in favor of the plaintiff; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, this appeal is taken.

The first proposition of the appellant upon the present appeal is that the plaintiff cannot maintain this action, upon the ground that the contract upon which it is founded was void as against public policy, the services contemplated by the contract consisting of personal solicitations, addressed to members of the legislature, for the purpose of inducing them to further the passage of bills which he claims to have prepared, and in part of efforts to secure the withdrawal or amendment of a bill which was deemed prejudicial to the defendant’s interests. While we think the proof was capable of a construction which might lead to the conclusion that the contract was of this character, we cannot say that it would not bear another interpretation. If it could be reasonably construed as contemplating no action upon the part of the plaintiff except such as was honest and proper, it was for the jury to say what inference ought to be drawn; and we do not think that the defendant was entitled to anything more than to have the question fairly submitted to the jury. It was thus submitted bj the propositions which the court charged at the request of the defendant’s counsel, which were to the effect that even if the jury find as a fact that there was a contract between the plaintiff and defendant, but that it was a part of such contract that the plaintiff, if requested, would go to Albany and see some member of the railway committee when one of the bills testified to was before such committee, and talk to him privately, to further said bill, so as to have the "bill reported and passed along, or so that the bill could be passed, and that the plaintiff did talk with one or more members of such committee privately for such purpose, then the defendant is entitled to a verdict.

The court also charged, at the request of the defendant, that even if the jurjr find as a fact that there was a contract between the plaintiff and defendant, but that it was a part of such contract that the plaintiff should, if requested, have personal and private interviews with members of the legislature, having in view, as one of their objects, the furthering of any bill - pending in the legislature, or a committee thereof, so that the same could be reported by such committee and passed, then the jury need consider no other question, but must render a verdict for the defend-' ant. These instructions were sufficiently broad and accurate, and certainly were as favorable to the defendant as could possibly be claimed; and, the jury having refused to find that the contract was of such a nature, their verdict, we think, must be deemed conclusive upon that question.

It is further urged that the court erred in allowing the plaintiff to impeach the defendant by contradicting as to what he claims to be collateral matter brought out on cross-examination. The plaintiff had a right to show by the defendant as to how he treated the plaintiff’s claim in conversations in respect to it; and, he having testified that he characterized this claim in conversations in respect to it as a blackmailing claim, it was proper for the plaintiff to show by competent evidence that this did not correctly represent the attitude which the defendant assumed when this claim was spoken of and its settlement urged.

It is also claimed that the court erred in allowing the plaintiff to prove his own declarations upon the former trial; but it will be seen, when the record is examined, that no error was committed in this respect. The defendant’s counsel had cross-examined him as to his testimony upon the former trial, asking whether he did not testify thus and so, which presented only a part of the testimony which he gave, and would produce an erroneous impression as to what the nature of the whole of his testimony was, had it been allowed to stand alone; and, thereupon, the plaintiff’s counsel asked him whether he did not testify to other facts which very materially qualified those to 'which his attention had been called by the defendant’s counsel. It seems to be a familiar principle that a part of a declaration of the plaintiff cannot be offered in evidence by a defendant, and the plaintiff be precluded from giving the remainder.

It is also claimed that there was error in instructing the jury to assess the damages as of October, 1886. We see no error in this. The right of payment did not depend upon demand, as seems to be inferred by the defendant’s counsel. It depended upon the performance of the contract, and, when that was done, the obligation upon the part of the defendant to pay was complete. Then the cause of action arose, and then the plaintiff was entitled to the stock and bonds, and to recover their value as of that time. There are some other exceptions which have been adverted to upon the part of the appellant, but they do not seem to need special mention.

The judgment and order should be affirmed, with costs.

O’Brien, J., concurs.


author: Per Curiam.

text:
    The People ex rel. The St. Nicholas Avenue & Cross-Town Railway Co., App'lt, v. Hugh J. Grant, Mayor, Resp't.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Municipal corporations — Franchise for street railroad—Publication OF NOTICE.
    A failure to properly advertise in more than one newspaper the time and place when an application for a street railway franchise will be presented to the board of aldermen is fatal to the right of the board of aider-men to entertain such application.
    3. Same—Notice of sale of franchise.
    Where the invalidity of a franchise is patent, the mayor is justified in refusing to designate the papers to publish the notice of the time, place and terms of sale thereof, and the court will not compel him to do so.
    Appeal from order denying a motion for a peremptory mandamus to compel the mayor to designate two daily newspapers in which to publish the sale of the franchise for operating a street railway.

      Charles W. West, for app’lt;

      Wm. H. Clark {Charles Blandy, of counsel), for resp’t.
   Per Curiam.

We might content ourselves with affirming the order appealed from upon the opinion of the' court below. Deeming it, however, unnecessary to consider or determine all the questians reviewed by the learned judge at special term, or presented by the appellant upon this appeal, we feel safe in placing our affirmance upon the ground that the failure to properly advertise the time and place when the application made by the relator was first to be considered by the board of aldermen, as required by § 4, chap. 252, Laws 1884, is fatal to relator’s right to a peremptory mandamus. It is conceded that before the consent of the board of aldermen could be given, the law required notice to be published daily “for at least fourteen days, in two daily newspapers of said city, to be designated by the mayor of the city,” of the time and place when application would be first made by a railroad company for a franchise to construct and operate a street railway. It is also conceded that the time and place were only properly advertised in one paper.

If it can be argued that this was not fatal to the right of the board of aldermen to entertain the application, or that it was a compliance with the provisions of the act, then we see no reason why, if no advertisement at all had been published, it would not have been equally as effective. In other words, if the suggestion against the plain and explicit words of the statute, requiring notice to be published in two newspapers, is to be upheld upon showing publication in one, the argument would be equally as strong in support of the view that no advertisement at all was necessary. The contention that, notwithstanding such invalidity in the franchise granted to the relator, the mayor was bound to comply with the request of the relator to publish the notice of the time, place, and terms of sale of the franchise, is equally without force. We have been referred to no authority, nor do we think any is necessary, in support of the proposition that, however much we may regard the mayor as a ministerial officer, with notice of the invalidity of the franchise, he is not bound to designate the papers which shall fix the time, place, and terms of sale of such franchise, or that, upon his refusal, the court by a peremptory mandamus will compel him to do so. We think that where the invalidity of the franchise, as in this case, is patent, the mayor was justified in his refusal, and that the court was not at liberty to compel him to perform an act which would present for public bidding an invalid franchise. We are of opinion, therefore, that the conclusion reached by the learned judge at special term was correct, and that the order appealed from should be affirmed, with costs.

Yan Brunt, P. J., O’Brien and Barrett, JJ.. concur.


author: Babbett, J. Yaw Beuwt, P. J.

text:
    Charles H. Hyde, Adm'r, App'lt, v. George H. Kitchen et al., Ex'rs, Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Pleading—Sham answer.
    An allegation in an answer by executors who have been interpleaded in an action against a bank to recover a deposit, to the effect that beyond the bank book they deny any knowledge or information sufficient to form a belief as to whether the legal representatives of their testatrix have any interest in the fund or whether the moneys belong to the plaintiff, should not be stricken out as sham, as the defendants have a right to put plaintiff to proof of his interest in the fund.
    3. Same.
    But allegations as to facts which prevented probate of the will of their testatrix and the granting of letters to them, or the reasons why a temporary^ administrator has not been able to qualify, or as to the existence of next of kin of deceased, should be stricken out as irrelevant.
    Appeal from an order denying a motion to strike out the allegations contained in the defendant’s answer.

      L. Karge, for appl’t;

      Thomas H. Cook {Joseph Fettreieh, of counsel), for resp’ts.
   Babbett, J.

The difficulty here antedates the present pleadings. It results from the interpleader order previously made, whereby the present defendants were substituted in place of the savings bank. As these defendants make no claim to the fund in question, it is difficult to preceive upon what principle they were brought into the action; but as they are here, the answer which they have interposed must be considered independently, and as though they had been made parties defendants in the first instance. The plaintiff in his complaint, amended to conform to the interpleader order, claims a certain sum of money deposited in a savings bank by one Maria Yan Yleck, “in trust for John H. Hyde." These defendants are the executors named in the will of Maria Yan Yleck, but that will has not been admitted to probate, and the defendants consequently have not received letters testamentary. In their answer the defendants make the following denial, which the plaintiff seeks to have stricken out as sham or irrelevant, namely:

“ But beyond the bank book referred to in the complaint they deny any knowledge or information sufficient to form a belief as to whether the executors or legal representatives of Maria Yan Yleck, deceased, have any interest in said fund, or whether said money belongs to the plaintiffs, or whether the plaintiffs are the owners thereof and justly entitled thereto.”

The word “book ” in the first line of this denial was omitted by a clerical error, but, as it was a clerical error, the defendants should not be prejudiced thereby. The plaintiff claims that this denial is sham, because of other statements in the answer, from which he asks us to infer that the defendants have knowledge that / the money in question belongs to him, and that he is justly entitled thereto. We do not think, however, that this denial can be stricken out as sham. Before part of an answer can be stricken out as sham, the court must be satisfied that it is false, and that it was interposed in bad faith. We do not think there is anything in the present answer, or in the affidavit upon which the motion was founded, to justify this conclusion. If the defendants are proper parties, and are entitled to defend, they have a right to ignore the allegations of the complaint as to the plaintiff’s interest in the deposit, and to put the plaintiff upon proof thereof. The qualification, “ but beyond the bank book referred to in the complaint,” may affect the sufficiency of the denial, but it does not render it sham or false. It may seem strange that persons who do not assert any right to the deposit should be permitted to question the plaintiff’s title; but that, we must assume, was considered by the court when the order of interpleader was made, and these defendants were brought into the action. Being thus in, they have a right to deny the allegations of the complaint, either specifically or by denying any knowledge .or information thereof sufficient to form a belief. What effect this may have upon the trial need not now be considered. It was sufficient for the court at special term, upon the motion to strike out, to say that, as these defendants had been brought into the action and called upon to plead, their denial of the plaintiff’s title could not be declared to be sham. That is all the court was called upon to decide, and we think its conclusion was correct

As to the other paragraphs of the answer against which the motion was aimed, a different case is made out These paragraphs set up affirmative matter, which is clearly irrelevant for the reason that it does not even tend to show a defense to the plaintiff’s claim. In one of these paragraphs the defendants narrate at some length the facts which have prevented the probate of the will and the issuing to them of letters testamentary. This is all irrelevant The material fact is that the letters have not been issued. They also set forth that proceedings for the appointment of a temporary administrator, pending a contest over the will, have been taken, but that, for certain reasons, the temporary administrator has not as yet been able to qualify. This, too, is wholly irrelevant, and has no bearing on the controversy. ■ It amounts to the defendants saying that they have no legal interest in the fund, and then telling us why, unfortunately, they have no such interest

The same observations apply with even greater force to the remaining paragraph of the answer. In this paragraph the defendants state that Maria Van Yleck left certain next of kin, who are named, and who, they allege, have, or may have, some interest or claim in the determination of the question with regard to this deposit. The defendants aver that there is a defect of parties defendant, in that these next of kin are not made parties to the action. It is quite clear that the next of kin have no legal or direct interest in the controversy, even if the estate of Maria Yan Yleck has such interest Either the plaintiff or the estate of Maria Yan Yleck is entitled to the deposit; and these executors, who have been brought in, as we must assume, to defend the estate, must limit themselves to the question which arises between themselves, as executors, and the plaintiff. It will not do for these defendants to say that they have no interest in these moneys because they have not yet received their letters testamentary, but that other people have, or may have, an interest therein dependent upon the result of the controversy over the will. The paragraph of the answer, therefore, with reference to these next of kin is clearly irrelevant, and should have been stricken out. _ So much of the order appealed from as denies the motion to strike auk as sham and irrelevant, the denial of any knowledge or information sufficient to form a belief 'as to the plaintiff’s interest in the deposit, should be affirmed, and so much of the order as denies the motion to strike out the allegations contained in the second and third paragraphs of the answer as irrelevant should be reversed, and that part of the motion granted, without costs of this appeal to either party.

Yaw Beuwt, P. J.

As the defendants can prove, under their general denial, any facts tending to show that the plaintiff has no interest in the fund, I concur.

O’Bbiew, J., concurs.


author: Babbett, J.

text:
    Louise Meise, Respt., v. John H. Doscher et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Appeal—Facts not on the becobd.
    The defendants were forced to trial at a time when the record shows that plaintiff’s proceedings were stayed- by an order which had been duly served. Reid, that the fact that such stay had been vacated, which fact did not appear on the record, could not be shown on appeal.
    Appeal from judgment in favor of plaintiff.

      John Henry Hull, for app’lts;

      J. George Flammer, for resp’t,
   Babbett, J.

The defendants were forced to trial at a time when the record shows that the plaintiff’s proceedings were stayed by an order which had been duly served. The defendants objected to going to trial because of the existence of this stay. Thereupon the plaintiff’s counsel left the court, and, on returning, stated that he had obtained an order vacating the stay. Upon this mere statement the defendants objected to proceeding, but the objection was overruled, and the defendants duly excepted. For aught that appears in the record, the stay of proceedings was in full force when the defendants were thus compelled to go to trial. No order vacating the stay was served, and there is no evidence in tile case that any such order was obtained or exhibited to the trial court. We were told, upon the argument of the appeal, that such an order was in existence, and the learned counsel for the respondents offered to submit it for our inspection; but it was not claimed that this order had ever been served upon the defendants’ attorney, or filed so as to become a record of the court. Nor would its mere existence have aided the respondent, without proof that it was at least produced at the circuit, and exhibited there ; and that proof we certainly could not. take upon this appeal. If it be true that the order was produced at the trial, it seems strange that the case should be silent on that head. At all events, we have to take the case as it comes to us, settled in the usual way. The trial which followed the overruling of the objection was evidently a hurried one, owing to the necessity of completing it in one hour, the case having been placed upon the special circuit calendar, and we think the ends of justice will be prompted by a new trial at the regular circuit, where the accounts between these parties can be more fully examined, and the amount which is really due accurately ascertained. The judgment should, therefore, be reversed, and a new trial ordered, with costs to abide the event, and the case should be stricken from the special circuit calendar and such new trial had at the ordinary circuit.

Van Brunt, P. J., and O’Brien, J., concur.