author: O’BRIEN, J.

text:
    Bendheim v. Morrow.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Trust mortgage—Satisfaction by trustees—Proof of fraud.
    Trustees in a trust mortgage given for the benefit of the mortgagor’s-creditors are not chargeable with fraud in satisfying the mortgage on receipt of the surplus over prior mortgages of the price for which the owner had sold the mortgaged premises at auction, where there is no evidence that the premises were worth more than they were sold for, though the trustees were also creditors'of the mortgagor, and were preferred by the terms of the mortgage.
    Appeal from special term, Mew York County.
    Action by Adolph M. Bendheim against James B. Morrow for specific performance. There was a judgment in favor of defendant, and plaintiff appeals.
    Sol. Kohn, for appellant; Sidney H. Stuart, for respondent,
   O’BRIEN, J.

—This action, which has been twice tried, was-brought for specific performance, or, in the alternative, for the-recovery of damages ; and the defendant interposed a counterclaim, demanding specific performance or damages.' From the facts agreed upon by the parties, it appears that the defendant sold certain premises at public auction, subject to incumbrances mentioned in the terms of sale, aggregating over $100,000; and the plaintiff became the purchaser, bidding $6,000 over and above incumbrances. He paid 25 per cent, of this amount to the auctioneer, together with the exchange fees. An examination of the title disclosed the existence of a mortgage on the premises, unsatisfied of record. This mortgage was not specified in the terms of sale, and was made to trustees for the benefit of creditors of the mortgagor, one McManus. The creditors were named in schedules attached to the mortgage, the trustees being included among the creditors, and being first preferred in payment. At the time fixed for the closing of the title, nothing had been paid on this mortgage, and upward of $30,000 had been advanced by the creditors, the mortgage thus being security for that amount. It was arranged, however, that the sum of $6,000, which was to be paid by the plaintiff, would have been applicable to the payment of this mortgage. The satisfaction piece executed by the trustees, which was tendered to the purchaser at the time fixed for closing the title, was refused by him, unless the creditors named, in the mortgage either assented to the satisfaction or joined in its execution.

The general term, in reversing the judgment obtained by the plaintiff upon the first trial, said (73 Hun, 90, 95, 56 S. B. 105):

As the record stands, "therefore, the only questions presented are two : (1) Did the trustees have authority to satisfy the mortgage in the course of the due execution of the duties devolved upon them by the trust ? (2) Does the presumption arise, from the fact that they did execute the satisfaction piece, that it was a step taken in the proper discharge of the duties assumed by them? The discussion already had requires an affirmative answer to both of these questions.”

In another part of the opinion, the court said (page 94, 73 Hun,):

“ The conduct of the parties leads us to suspect that at the time of the execution of the satisfaction piece, the trustees had not been paid in full, and possibly that they had consented to an arrangement which they understood would prevent them from receiving all that the mortgaged interest was fairly worth; so that their conduct operated to wrong their cestuis que trustent, and was in the nature of a fraud upon them, of ■which facts the purchaser had knowledge. If such was the case, an entirely different question Avould be presented than Ave have so far considered; for the presumption arising from the execution of the instrument satisfying the mortgage, to the effect that the trustees had proceeded in conformity Avith the duties imposed by the trust, would have been overcome.”

It will thus be seen that the law relating to the validity of the satisfaction piece tendered was passed upon adversely to-the plaintiff, and that the only question reserved was one of fact as to whether or not the trustees were acting fraudulently. Upon this question of the consideration moving to the trustees, for the satisfaction piece, it appears that the property was put. up at public auction, and sold to the plaintiff, ancl that all that was realized upon, such sale was to be paid over to such trustees; and no proof was offered by plaintiff that the-trustees were not to receive other mortgages, or a new one, as. provided in the mortgage for which they gave a satisfaction piece. But, if we assume that but $6,000 was to be received by the trustees as a consideration for the satisfaction piece, the question is, was this fraudulent ? It appears that the property was incumbered by a first and second mortgage, amounting in all to $101,143. It was sold at public auction, for the best price that could be obtained, subject to these mortgages, and was purchased by the plaintiff; and not only was no proof offered to show that the property was worth more, but it is made to appear that subsequently, upon a resale, it brought, much less. But, if we disregard this testimony as to the resale, it yet appears that the trustees received a price equivalent to the value of the lien which they held ; and, if they had any discretion in the matter, they were bound to use it, and in the manner that they did, because the delivery of a satisfaction piece under the circumstances was a wise exercise of their discretion.

The appellant relies mainly upon the legal position that the trustees nad no discretion, but that their powers were limited by the express terms of the mortgage. This, as we have seen, however, was directly passed upon adversely to the plaintiff by the general term. At the time of the tender of the satisfaction piece, the objection taken 'was that the trustees could not satisfy the mortgage without the creditors joining therein or consenting thereto ; and no objection was made that they were only to receive $6,000, because that fact was not then known to the plaintiff. If, however, we agree with the appellant that this objection is now available, we think it was correctly disposed of by the learned trial judge, who was bound by the law as laid down by the general term, which, upon the facts disclosed in this record, led Mm to direct a judgment for the defendant.

We think'that the judgment should be affirmed, with costs..

All concur.


source: Caselaw Access Project

author: BARRETT, J.

license: Public Domain

text:
    Fritz C. Bischoff v. Jacob Engel et al.

    (Supreme Court, Appellate Division, First Department.
    November 20, 1896.)
    1. Pleading—Complaint—Failure to explain nonjoinder of parties.
    Failure of a complaint to allege a reason why a certain person should not be joined as a party plaintiff does not affect the sufficiency of the cause of action alleged.
    2. Necessary parties—Interest in controversy.
    The widow of an administrator is not a necessary party to an action for an accounting against the sureties on the administrator’s bond, where the estate represented by such administrator was that of his first wife.
    3. Executors and administrators—Action on bond—When lies.
    The general rule that sureties on an administrator’s bond are not liable until the default of their principal has been established before the surrogate does not apply where the administrator left the state immediately on obtaining possession of the assets, and died in another state, insolvent.
    Appeal from special term, New York County.
    Action by Fritz C. Bischoff against Jacob Engel and another. From an interlocutory judgment in favor of plaintiff, defendants appeal.
    The action was brought by Fritz C. Bischoff, in his own behalf and for the benefit of all other heirs at law and next of kin of Theresa Bischoff, deceased, who shall see fit to come in, against the sureties upon an administrator’s bond given by Fritz’s father, who was also named Fritz O. Bischoff. The plaintiff is the son of Theresa Bischoff by this Fritz C. Bischoff, Sr. Theresa died in May, 1887, in the city of New York, where she had resided for some 11 years. Her husband thereupon obtained from the surrogate' of the county letters of administration upon bis wife’s estate. Upon the receipt of these letters, Fritz C. Bischoff, Sr., gave the bond in suit. At that time Theresa had on deposit in the German Savings Bank upwards of $3,700, and shortly after the receipt by him of ‘the letters of administration, namely, in the month of July, 1887, Fritz O. Bischoff, Sr., withdrew this money from the bank, and duly receipted for it as bis wife’s administrator. Thereupon this administrator departed from this state, taking with him all his property, and settled in the state of New Jersey, where he resided continuously until the time of his death, which occurred on the 17th day of July, 1894. The court at special term found these facts upon undisputed evidence. The court also found upon sufficient evidence that the administrator, in his lifetime, converted all the goods, chattels, and credits of Theresa Bischoff to his own use; that he died leaving no assets or property of any kind in this state; that his estate in New Jersey was of no greater value than $40, consisting only of a watch and some clothing ; that the plaintiff has not been paid any part of the money received by the administrator; that the administrator never filed any account, inventory, or report of Ms proceedings ; and that no orders or decrees in the matter of his administration have ever been made by the surrogate subsequent to the granting of the letters. Upon these facts the court at special term held that the sureties were liable, and directed an accounting, to ascertain for what part of the sum received by the administrator he was liable, after allowing all just credits and such amounts as may ha.ve been advanced or paid out for the use and benefit of the plaintiff. For Ms share of the balance found to be chargeable against the administrator upon such accounting the plaintiff is then to have final judgment. From this interlocutory judgment, the defendants appeal.
    John A. Kamping, for appellants; Frank H. Hardenbrook, for respondent.
   BARRETT, J.

—The defendants make a preliminary point that the complaint does not state facts sufficient to constitute a cause of action in failing to allege a reason why plaintiff’s sister was not joined as co-plaintiff. The failure to make such an allegation might have had a bearing upon another question, viz. whether there was a defect of parties plaintiff. But it does not affect the sufficiency of the cause of action as alleged. The objection that the plaintiff’s sister was not joined as co-plaintiff should have been taken by demurrer; and, not having been so taken, it was waived. The objection appeared plainly upon the face of the complaint, where the relationship and interest of this sister are distinctly averred. No objection was taken upon this head during the trial, nor was any suggestion made to the learned trial judge that a complete determination of the matters in controversy required the bringing in of this sister as a party to the action. The case was evidently tried upon the theory that the plaintiff was authorized to bring the action upon his own behalf, and for the benefit of all other heirs as law and next of kin who might come in. Whether this was a correct theory, we need not consider. It is sufficient upon this appeal to determine that the point now made by the appellants is untenable.

The defendants also claim that there is a misjoinder of parties, in that the representative of the deceased administrator should have been a party defendant; also his widow (he having married a second time). The widow, as such, had no possible interest in this controversy. She certainly can take no part of the first wife’s estate. But it appears that she is also the legal representative of her husband, having been appointed his administratrix by a probate court in New Jersey long aftfer the commencement of this action, and in fact shortly before the trial under review. Even if the trial court had suspended the proceedings, and required the plaintiff to bring the foreign administrator in, it is difficult to see how this could have been done. This court can exercise no jurisdiction over a foreign administrator, who is a nonresident of this state, and who is personally absent therefrom. Neither the representative nor the individual is subject to our judicial power. Again, the point that the action would not lie until a legal representative of the deceased administrator had been appointed and made a party defendant was not raised by the answer. The only defect of parties defendant set up in the answer is the omission of the widow individually.

The main point raised by the defendants is undoubtedly this: that no action can be maintained against the sureties until an accounting has been had against the deceased administrator or his personal representative, nor until that administrator or his personal representative has disobeyed some order or decree of the surrogate’s court of this county touching the administration of the estate committed to his charge. This point is supported by the cases of Hood v. Hood, 85 N. Y. 561; Haight v. Brisbin, 100 N. Y. 219 ; Perkins v. Stimmel, 114 N. Y. 359, 23 S. It. 657; and French v. Bauchy, 134 N. Y. 543, 47 S. R. 900. The general, rule is now undoubtedly well settled that the sureties upon the bond of an executor or administrator are not liable until the default of their principal has been established before the surrogate. But exceptional circumstances may exist sufficient to warrant the interposition of a court of equity (without the juior establishment of this default), and to secure there the establishment of such default with—as a sequence—an appropriate judgment against the sureties. This was assumed in Hood v. Hood, supra, where Judge Rapallo said :

“Assuming that in a case where the statutory remedies upon the bond cannot be pursued a court of equity can interpose and establish a breach in some other manner, and give a remedy against the sureties without any order for the prosecution of the bond, all the authorities which have been cited agree that special circumstances must be shown establishing the necessity for the interposition of a court of equity; and that, if the legal remedies can be pursued, they alone can be resorted to.”

The language of Judge Finch in Haight v. Brisbin, supra, is more direct and decisive:

“ The plaintiff,” said the learned judge, “ insists that for this injury the surrogate can give no redress, and, therefore, to require his preliminary adjudication, would involve an impossible condition, and leave the injury inflicted without a remedy. If such a case should occur, equity would be quite sure to furnish a remedy.”

The possibility of these exceptional circumstances was also recognized in French v. Bauchy, supra, where Judge Bradly said:

“No reason appears why such accounting could not and should not have been had preliminarily to the action against the sureties. And for that reason the order should be affirmed.”

The present case furnishes an extreme example of the special circumstances which justify the interposition of a court of equity. Indeed, it is perfectly evident that, unless this action can be maintained, the sureties will permanently escape, and the persons for whose benefit and security the bond was given will be wholly remediless. It is clear that the surrogate has no jurisdiction to require any preliminary accounting. The administrator is dead, and his personal representative is without the jurisdiction. The administrator died in a foreign state, wholly insolvent. He left a watch and some clothing, worth perhaps $10 ; not enough probably to bury him decently. There is a suggestion that he left some real estate in New Jersey, but that suggestion is idle. He held some property there jointly with his second wife,—that is, in their joint names,—- and upon his death the title vested in the survivor. Thus we have a case where the administrator has converted-the entire estate to his own use, has squandered the proceeds of his conversion in a foreign state, has died there penniless, and has no personal representative subject to our jurisdiction. To require a preliminary accounting under such circumstances would be a mockery of justice. The surrogate of this county can neither appoint a personal representative of the deceased here, nor can he compel the personal representative, who has been appointed in the state of New Jersey, and who remains Avithin that state, to come here and account before him. Our surrogate might appoint an administrator of Theresa Bischoff’s estate in place of the deceased administrator. But such administrator would only be liable to account for what came into his hands. He Avould not, like the administrator of the deceased administrator, be liable to account for Avhat came into the latter’s hands. We think, therefore, that the action in equity Avas properly brought, and that the relief granted Avas appropriate under the special circumstances disclosed. There Avas no error in the ruling as to the allowance of interest, non do Ave find any substantial error in the record.

The interlocutory judgment appealed from should be affirmed Avith costs.

All concur.


author: O’BBIEH, J.

text:
    Abraham White v. Edward B. Cuthbert et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Equity—Relief from one’s own fraud.
    Neither law nor equity will relieve a plaintiff who states in his complaint that he gave his note without consideration to defendants, and had them issue an attachment thereon' to prevent a suit by his bank, though he alleges the bank had no valid claim against him.
    2. Cancellation of instruments—Remedy at laav.
    An action will not lie to cancel a note, or for any relief which the parties could have obtained in a former action on the same note.

      Appeal from special term, New York County.
    Action by Abraham White against Edward B. Cuthbert and others to recover the sum of $1,000 paid by plaintiff under an agreement- by defendants to sell to plaintiff certain premises in New York City, and also to recover the expense to which plaintiff was put in the examination of the title. From an order granting plaintiff’s motion for judgment on the demurrer of defendants, as frivolous, and directing judgment for the relief demanded, in the complaint, defendants appeal.
    E. H. Ball, for appellants ; Franklin Bien, for respondent.
   O’BBIEH, J.

—The complaint, in substance, alleges that on March 10, 1896, the plaintiff, at the request of the defendants, made and delivered a note under an agreement as therein set forth, which note was without consideration; that plaintiff had certain controversies with the Hancock Hational Bank, and plaintiff being in business here, and fearing that trouble would arise by the bringing of an action by said bank (although plaintiff claimed that the bank had no claim against him), consulted with defendants, and at their request the note was made and delivered, and an attachment procured, so as to prevent anything being done, and under the further agreement that, after protecting plaintiff, defendants would return the note on demand, and in no event enter judgment thereon; that accordingly the note was made and delivered, and an attachment was issued, and served on a bank where plaintiff had certain securities; that thereafter the Hancock Hational Bank brought an action against the plaintiff and others, in which an injunction was issued; that the injunction was vacated and set aside, and thereafter the plaintiff demanded of the defendants the return of the note under the agreement, which they refused to do, and that this plaintiff (who was the defendant in the action brought by these defendants against him on such note) interposed an answer; that the action was duly tried, and a jury rendered a verdict in favor of this plaintiff, to the effect that these defendants had - no claim to said note and that the same was utterly null and void; that a judgment was entered accordingly, and a copy served in the manner required by law, and that the time to appeal has expired,_ and no appeal has been taken ; that plaintiff demanded a return of the note, but they refused to return it, and are still in the unlawful possession thereof, and have converted the same to their own use, to the damage of this plaintiff in the sum of $10,000; that plaintiff is entitled to the immediate possession of the note. And plaintiff demands that the defendants be compelled to surrender it for cancellation and other relief. A demurrer was interposed upon the ground that, upon the face of the complaint, it did not state facts sufñciént to constitute a cause of action. A motion was made on the pleadings for judgment on the demurrer as frivolous was granted, and from this order the appeal is taken.

To support the demurrer, three grounds were urged: First, it appearing from the complaint that the parties entered into an alleged fraudulent transaction to injure the Hancock National Bank, neither law nor equity will interfere to relieve the plaintiff, as against the defendants, from the consequences of his misconduct; second, that in the action between the same parties the identical note sought to be be canceled was sued upon, and judgment having been rendered in favor of the plaintiff, the court will not entertain another suit between the same parties, upon the same cause of action, for any relief which the plaintiff might have obtained in the former action; and third, that suit' cannot be entertained in equity for the cancellation of an overdue note, to which there is a -perfect defense at law. We think this position was well taken, and that the demurrer was not frivolous.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.


author: RUMSEY, J.

text:
    Adelaide Thompson v. Charles Welde.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Payment—Evidence.
    In an action by an administratrix to recover money deposited by her intestate with defendant, it is a question for the jury if payment was made, where defendant files as ordered, a bill of particulars of payment, and items in such bill are contradicted by witnesses.
    Appeal from trial term, New York County.
    Action by Adelaide Thompson, as administratrix of Henry Thompson, against Charles Welde.“ From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.
    Abram Kling, for appellant; Bernard Tinney, for respondent.
   RUMSEY, J.

—Mrs. Thompson, as the administratrix of her husband, brought this action to recover from the defendant a sum of money which she alleged had been deposited with the defendant, upon the agreement that he should return it to her husband upon demand. The fact of the deposit was admitted by the answer, and the sole defense was that the money had been entirely paid back to the husband in his lifetime. The pleadings were verified. Hpon a motion, thé defendant was required to serve a bill of particulars of the payments made by him to the intestate upon the said dejiosit, giving the dates and amounts of each payment. This he did, by a bill of particulars which appears in the case, from which it seems that the payments ay ere made in various amounts, from a time the date of which is not given, down to and including the 29th day of December, 1891,Avhen the seventeenth and last payment is said to have been made, of $100. Of course, the plaintiff being an administrator, Welde could not testify. He attempted to make out his case by proof of the admissions of the intestate, and he put upon the stand, for that purpose, íavo witnesses, Avho testified to certain admissions of Henry Thompson, thatWelde had paid him the whole amount of this $3,700. These Avitnesses, as it appeared upon their cross-examination, were on terms of great intimacy with Welde, and the cross-examination disclosed some discrepancies between the statements made b.y the Avitnesses and facts conceded in the case or alleged in the plaintiff’s bill of particulars, Avhich might Avell throw some doubt upon the accuracy of the statements. For instance, one of the witnesses testified that he had a talk with Thompson in-August, 1890, in which Thompson said to him that the whole amount of this deposit had been paid back to him. The witness was positive that this talk Avas in 1890. So positive was he that he was able to state the place and almost the precise time of day at Avhich it occurred. Upon looking at the bill of particulars verified by the defendant, giving the dates and time of payment, it appears that from the 11th of October, 1891, down to the 29th of December, in the same year, over $500 was paid by him to apply Upon this deposit; so that it is perfectly evident that Thompson could not have said in August, 1890, that this deposit had all been repaid to him, because the defendant’s oavu admission -is that a very considerable part of it Avas repaid to him more than a year after that time. So, the other Avitness testified to the payment of a sum of $75 which he says Welde had made to him for Thompson, at Thompson’s order. But, upon looking at the bill of particulars again, it appears that the defendant, in his verified statement, makes no claim that he ever paid the sum of $75 at any time. There Avere various other discrepancies in the testimony of the witnesses, of Avhich the foregoing are simply illustrations.

Upon the close of the testimony, a motion was made by the defendant that the court order a verdict, upon the ground that the payment had been proved by the testimony of unimpeached Avitnesses; and the court, upon that ground, ordered a verdict, against the protest and exception of the plaintiff’s counsel. In this action, Ave think, the court erred. While it is quite true that both court and jury are bound by the testimony of unimpeached and credible witnesses, which is uncontradicted, yet, to raise a question for the jury, it is not necessary that the testimony should be contradicted by the affirmative testimony of other Avitnesses. The circumstances under Avhich the evidence is given, the relation of the Avitnesses to the party in whose behalf they testify, and the nature of the facts to which they testify, may be such as to not only warrant, but require, the court to send the case to the jury, although there may be no witnesses testifying upon the other side. Especially is-this likely to be the case where the evidence given is evidence of declarations and admissions alleged to have been made by one who is dead, and who therefore cannot contradict them. Oral admissions are, at the best, but an unsatisfactory kind of evidence, and the case is a rare one in which such admissions should be adopted by the court as representing the precise, truth of the case. The case at bar is not one of those cases.. The questions presented here should have -been sent to the jury, and for the error of the court in refusing to do that, the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: BARRETT, J. RUMSEY, J.

text:
    Augusta Feier v. Third Avenue Railroad Co.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Costs—Suits by pauper infants.
    The right of an infant to sue as a poor person (Code Civ. Proc. § 458) cannot be denied because the guardian ad litem is a responsible person. Van Brunt, P. J., and Rumsey, J., dissenting.
    Appeal from special term, New York County.
    Action by Augusta Feier, an infant, by Tiarry Levy, her guardian ad litem, against the Third Avenue Railroad Company, for personal injuries. From an order denying a motion. for leave to prosecute as a poor person, plaintiff appeals.
    Charles G. F. Wahle, for appellant; F. H. Knight, for respondent. .
   BARRETT, J.

—The plaintiff’s papers are in strict accordance with the provisions of sections 458 and 459 of the Code of Civil Procedure. She could say no more to invoke judicial action than she has said in these papers. No more could well be said. The defendants filed no affidavits in opposition. If, therefore, her motion ivas properly denied, it is difficult to conceive of a case where an infant pauper may avail herself of the law Avhich was expressly enacted for the benefit of her class. Prior to the amendment of 1891 there Avas a conflict of judicial opinion Avith regard to the right of infant paupers to-sue as poor persons. In some cases it Avas held that, Avhere an infant sues by guardian ad litem, security for costs being a. statutory right, the court had no power to destroy it by allowing the guardian to sue as a poor person. These cases were-subsequently overruled. But it was to settle these and all other questions upon the subject that the amendment of 1891 was enacted. That amendment consisted of the insertion in section 458 of the words, “whether an adult or infant,” and of the provision in section 459 that, where the applicant is an infant under the age of 14 years, the petition must be verified by his guardian appointed in the action. Now,'as an infant, whether under or over 14 years of age, cannot apply until a guardian ad litem is appointed (In re Byrne, 1 Edw. Ch. 41; Glasberg v. Railroad Co., 12 Civ. Proc. R. 50, per Patterson, J.), and as such guardian ad litem must, under the general rules of practice, be a competent and responsible person, the statute is practically abrogated if the competency and responsibility of the guardian constitute a complete answer to the application. The infant here says, without a word of denial, that she has no means whatever, that she has a good cause of action against the defendant, and that she is a hired domestic in her guardian’s service. What ivas the court’s answer ? It was this: “ Though you are an infant pauper, you shall not have the benefit of the statute, because you have a responsible guardian. This responsible guardian you had to secure before you commenced your action. Having secured him, you are no longer within the statute, or, rather, it is no abuse of discretion to deny your petition.” This reasoning seems to me practically to nullify the amendment, and to leave infant paupers in quite as unfortunate a position as they were in before the legislature sought to help them.

The order appealed from should be reversed, with $10 costs and the disbursements of the appeal, and the motion for leave to sue in forma pauperis granted.

WILLIAMS and PATTERSON, JJ., concur.

RUMSEY, J.

(dissenting)"—Motions of this kind are addressed entirely to the discretion of the court, and they are not to be granted unless a state of affairs is shown to exist in Avhich justice requires it. They are not to be encouraged. A person asking for them seeks to get a privilege and exemption from the common rule, and, unless good reason is shoAvn why he should have it, his application should be denied. Moore v. Cooley, 2 Hill, 412; Isnard v. Cazeauz, 1 Paige, 39. One is authorized to prosecute as a poor person to aAToid a failure of justice, because he makes it appear to the court that, if he Avere not so authorized, he Avould be unable to maintain his action. Nothing of that sort has been made to appear. The plaintiff’s papers show that she has already commenced the action, and that she has procured a competent person, responsible for costs, to act as her guardian ad litem. There is no danger of any failure of justice because of a denial of this motion. The guardian, having accepted his trust, Avill be compelled to perform it.

The court properly exercised its discretion in denying the motion, and the order should be affirmed, with $10 costs and disbursements.

VAN BRUNT, P. J., concurs.


text:
    Commercial Nat. Bank of Chicago v. Hand.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    1. Pleading—Bill ok particulars.
    A claim against a bank for injury to a depositor’s credit by improperly refusing- to honor his checks is a matter of general damage, and therefore a bill of particulars showing the items of such damage cannot be required.
    2. Same—Loss ok profits.
    A bill of particulars cannot be required as to loss of profits or loss of business by reason of injury to one’s credit.
    Appeal from special term, New York County.
    Action by the Commercial National Bank of Chicago against Elwood S. Hand on a judgment. Erom an order directing defendant to serve a bill of particulars, defendant appeals.
    Charles De Hart Brower, for appellant; John Henry Hull, for respondent.
   O’BRIEN, J.

—The action is brought by a foreign corporation upon a judgment, and the defense consists of a counterclaim for damages resulting from the nonpayment of checks drawn by defendant upon the plaintiff, and the protest of such checks ; 'defendant having on deposit with the plaintiff, at the time, funds in an amount more than sufficient to meet the checks. The answer contains a list of parties with whom defendant had dealt, and who curtailed his credit after dishonor of the checks. The allegation of damage is :

“ That, by reason of the refusal of the plaintiff to honor and pay said checks, the credit and reputation of the defendant was injured, and the individuals and firms mentioned in the schedule thereto annexed * * * curtailed the credit theretofore extended by them to him; and the defendant ivas thereby subjected to expense, and deprived of the profits which he would otherwise have made by a continuance of such dealing, and was otherwise injured in his credit and reputation, to his damage in the sum of $25,000.”

The order appealed from required the defendant to give—

“ The items and- particulars of the damages claimed in the answer to have been suffered by the defendant in his credit by reason of the alleged dishonor of the checks set forth in said answer, and that said defendant also give the items of any alleged expenses he may have been put to by such dishonor, and also the amounts which defendant claims to have lost by reason of persons refusing to do business with him in consequence of such alleged dishonor.”

• As to the first, viz. the items and particulars of the damages to the defendant’s credit,—these being general damages,—“ It is no part of the office of a bill of particulars to state the elements which may enter into the general damage which may be recovered in such an action.” Stokes v. Stokes, 12 Hun, 312; 55 S. R. 111.

2. As to the item of any expenses to which defendant may have been put by the dishonor of his checks: As there was no such allegation in the answer, and the defendant did not claim them, it was unnecessary to give them; there being a clear distinction between an allegation of expense connected with dishonor of checks, and that in the answer, which relates to expense by reason of the curtailment of credit. If particulars of the latter had been asked, they might properly have been ordered.

3. As to the amounts which the defendant claims to have lost by reason of parties refusing to do business with him: Here, again, we find a misapprehension as to the allegation in the answer, which was not of any amouitt lost, but of profits of which the defendant was deprived, and which he could have made by a continuance of his dealings with the" parties named in the schedule. But, even if we regard it as equivalent to an allegation of loss of business, “ it does not thereby become the subject of a bill of particulars.” Lane v. Williams, 31 Hun, 389. The claim of defendant is for injury to his credit and Teputation, and the items of damage are diyided into three 'divisions,—general damage, loss of business, and loss or ■expense occasioned by curtailment of credit. What items in respect to such damages might be claimed are pointed out in Peabody v. Cortada (Sup.), 18 N. Y. Supp. 622.

We think the order appealed from is erroneous, and should be reversed, with $10 costs and disbursements.

All concur.


text:
    James H. Rooks v. Houston, W. S. & P. F. R. Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Street railroads—Injury to person on track.
    The question as to whether an injury to plaintiff was caused by a car should be submitted to the jury, when he testifies that he was on the track, and heard a car behind him, just as he was struck.

      2. Contributory negligence—Failure to look back.
    One riding a bicycle on a street-car track need not look behind him for overtaking cars.
    Appeal from trial term, New York County.
    Action by James H. Rooks, an infant, by Helen Rooks, his guardian ad litem, against the Houston, West Street & Pavonia Ferry Railroad Company, for personal injuries. The complaint was dismissed, and plaintiff appeals.
    Clarence C. Ferris, for appellant; Henry A. Robinson, for respondent.
   BARRETT, J.

—There was evidence sufficient to go to the-jury that the plaintiff was knocked down by a cable car. He-testified that he was upon the cable-car track at the time of the accident. He was riding there upon his bicycle, and was utilizing the aperture between the rails which is provided for the cable, commonly called the “ slot.” “ When I got to Nineteenth street,” he testifies, “ there was a noise, and. suddenly I was knocked down.” He added that he was familiar-with the rumble made by a cable car, that it was a holiday, that the street was quiet at the time, that he did not see or hear any other vehicles, and that he distinctly heard the rumble and noise of a cable car behind him just as he was struck. This, under all the circumstances, was sufficient for the submission to the jury of the question whether the accident was .or was not caused by a cable car.

There was also enough to go1 to the jury upon the main questions. The plaintiff was lawfully upon the track. Laws 1890, c. 668, §§ 162, 163. It is true it was a place of danger,, and" the plaintiff was bound to exercise corresponding care.. Whether he did so was for the jury to determine. The trial court held him to be guilty of contributory negligence, as matter of law, because he failed to look back. No such duty was imposed upon him as matter of law. His primary duty was to look in front of him; indeed, to keep a good lookout all around. But he could not ride upon his bicycle at all,-—certainly not with safety,—and yet keep his head turned so as to observe what was going on behind. Whether his failure to observe the car at the time of, and under the circumstances, surrounding, the aficident, amounted to contributory negligence, was, to say the least, a question for the jury. He certainly had a riglit to expect the usual warning in his rear. Had that been given, he would, of course, have been bound to protect himself by getting off the track, and malting way for the approaching car. Here, however, there was no warning. The gong was not sounded. There was no whistle,cry,or notice-of any kind. The plaintiff was proceeding lawfully, and with a justifiable sense of security. The first he heard was the rumble and noise of the cable car. Immediately thereafter he was struck and knocked down.

The case, upon the facts, should have been submitted to the jury; and the judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event-

All concur.


author: PATTERSON, J. INGRAHAM, J.

text:
    William G. Davies et al. v. Francis A. Clark.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Landlord and tenant—Covenants eor improvements.
    A lessee who covenanted to make certain improvements, and to comply, in making them, with all the requirements of the municipal authorities, cannot justify his failure to make such improvements on the ground that it was the lessor’s duty to submit the plans to the building department, under Laws 1882, c. 410, § 503, providing that plans should be submitted by “ the owner or his agent ” to the building department, and be approved by it, before alterations were commenced. Ingraham and Van Brunt, JJ., dissenting.
    Appeal from judgment on report of referee.
    Action by William G-. Davies and another, as trustees, against Francis A. Clark, for rent due under a lease for unpaid water rates, and for damages for breach of covenants in the lease. There was a judgment in favor of plaintiffs for $3,553.16 damages and costs, and defendant appeals.
    Dennis McMahon, for appellant; Herbert Barry, for respondents.
   PATTERSON, J.

—I am not able to concur in the opinion of Mr. Justice Ingraham. It inverts both the legal and contract relations of the parties, and throws upon the lessors the burden of performance or the consequences of the nonperformence of the covenants of the lessee. There are two elements entering into the consideration upon which the lease was made by the lessors : First, the covenant of the lessee to pay rent as such; and, second, the covenant of the lessee to make permanent improvements or betterments on the demised premises. Time was of the essence of both these elements. The rent was to be paid at fixed periods, and the improvements were to be made and completed within a specified time, viz. 90 days from the 1st day of May, 1894. The third cause of action set forth in the complaint, and the only one now before the court, is for damages for the breach of the covenant relating to the permanent improvements. The proof shows that the parties had adopted prior to the date of the lease a general plan of those improvements, and the covenant contained in the lease is thaj; the lessee shall, within the time specified, make and complete the improvements according to that plan and its specifications. The principal defense is that the improvements could not be made, because the building department of the city of Hew York had not approved of the plan; that the work could not be done under it for the want of such approval, and therefore performance was excused. I cannot concur in the view that that situation constitutes in any manner a defense to this action for the breach of the covenant. I agree that the improvements contemplated by that covenant could not lawfully be made without the assent of the building department, and that is as broad a concession as can be required. But it was in no way incumbent upon the owners, as between them and the lessee, to procure the consent. The lease was not entered into on an implied promise that the landlord would take the burden of getting that consent. It is the lessee’s covenant to build, and that would imply that he assumed the obligation of doing everything necessary to the full perform-anee of his covenant, which would include the submission of the plans to the proper authorities, and the procurement, or the effort to procure, their permission to go on with and complete the work under those plans and specifications. But nothing is left to inference or implication here. The lessee . expressly and in terms assumed, as between him and his lessors, the duty and obligation of procuring the assent, and why that is ignored I cannot understand. Covenants are to be construed according to their plain meaning and obvious intent, and this defendant stipulated that he would “ comply with all the requirements of the board of health, municipal .authorities, police and fire departments, of the city of New York.” That stipulation covers,.the whole of the transaction. It relates not only to the use of the demised premises, but to everything to be done by the lessee that involved compliance with the requirements of the municipal authorities. Therefore he stood bound to get, or try to get, the plans approved. He never did either of those things within the 90 days, The plans and specifications were not presented, nor were they submitted to the proper “municipal authority,” and the covenant was clearly broken by the lessee at the time this action was begun. No plausible excuse'is offered even. That the plans were subsequently rejected by the building department, and modified plans necessitated, does not alter the position of the parties at the time the action was brought. Had the original plans and specifications been presented within a proper time, such modifications as were necessary to meet the requirements of the authorities might have been made, and the covenant have been performed substantially within the agreed time; but no attempt was made at performance. The defendant remained passive, allowed the time -of performance to expire, and, to escape from liability, relies upon events which happened subsequently, and which in no way could have influenced him during the time fixed for performance. He advisedly made his covenant. ■ He was bound io perform it, or at least try to perform it, or show a valid excuse; and, when the time for performance had fully passed, he had no such excuse. He was grossly in default.

It is further claimed by the defendant (appellant) that the action was prematurely brought, and that no cause of action accrued while he remained in possession, paying rent, or until the lease was ended by expiration of the term or re-entry of the lessors. In Ganson v. Tifft, 71 N. Y. 48, the question arose in an action for damages for failure to rebuild, pursuant to a covenant by which the lessor stipulated that, if a certain elevator were destroyed by fire, he would rebuild it within six months. A fire occurred; the elevator was destroyed; the lessor did not rebuild -within the allotted time; and" the court said that the lessee’s remedy for damages was complete upon the failure to rebuild the elevator. Agate v. Lovenbein, 57 N. Y. 604, and Chamberlain v. Parker, 45 N. Y. 569, recognized the right of the lessor to sue for breach of covenant of lessee as soon as the covenant is broken, and without waiting for the expiration of the tenancy, provided injury has happened in consequence of the breach.

The other defenses interposed by the supplemental answer to the third cause of action depend altogether upon controverted matters of fact, in respect of which there was conflicting evidence. With the referee’s conclusions on that evidence I see no reason to interfere. The measure of damages was correctly determined. It is the amount of the decrease in value of the reversion at the time the breach occurred (Chamberlain v. Parker, 45 M. Y. 569, and cases there cited); and there was-enough proof on this subject to authorize the finding of the-referee.

The judgment should be affirmed, with costs.

WILLIAMS and O’BRIEM, JJ., concur.

INGRAHAM, J.

(dissenting).—The sole question in this case arises upon the third cause of action alleged in the complaint, the referee having reported that, after the commencement of the action, the defendant paid to the plaintiffs the-amount demanded by the first cause of action, and paid to the proper authorities the amount of the Croton water tax mentioned and set forth in the second cause of action. These payments by the defendant were proved and allowed under a supplemental answer served by permission of the court by which, the defendant pleaded payment of the amounts claimed in the-first and second cause of action; and, the first and second causes of action thus having been satisfied prior to the decision of the action, no cause of action existed in favor of the plaintiffs against the defendant for these causes of action.

The third cause of action was to recover damages for a breach of a contract made by the defendant, which was contained in a lease executed between the plaintiffs, as trustees, and the defendant, by which the defendant agreed that he would “ within, ninety days after the commencement of said term, at his own proper costs and expense, make and complete the alterations and repairs provided for by the plans and specifications submitted to, and approved by, the parties of the first part on the 18th day of April, 1894.” The supplemental agreement was-executed between the parties on the same day. It was called a “ Memorandum of alterations to be made by Francis. A. Clark in the building situate on the southeast corner of Eighth avenue and 49th St., in the city of Mew York.” By this supplemental agreement, Francis A. Clark agreed to make certain alterations therein specified, the memorandum of specifications and the annexed plans being the specifications and plans referred to in the lease of said premises dated April 18, 1894. This supplemental agreement, after reciting the alterations to-be made, contains the following provision: “ All the above work will be done in accordance with the rules and regulations of the building department.” These two agreements must be read together, and the rights and liabilities of the parties to the agreements must be determined according to .the plain intent and meaning of the lease and the memorandum of alterations, read as one instrument; and it seems quite clear, taking these two agreements together, that the defendant’s obligations were to make the alterations described within 90 days after the commencement of the term demised by the lease, which term was to commence upon the 1st day of Hay, 1894, subject to the rules and regulations of the building department of the city of New York. Under this lease, the defendant was not required to commence such work or to proceed with it in violation of the rules and regulations of such building department.

The regulations as to buildings in the city of New York, and the powers and duties of the building department, are regulated by the consolidation act (chapter 410 of the Laws of 1882). By section 503 of the act it is provided that:

“ Before the erection, construction or alteration of any building or part of any building in the city of New York is commenced, the owner or his agent or architect shall submit to the superintendent of buildings a detailed statement in writing of the specifications and a full and complete copy of the plans of such proposed work; * * * and the erection, construction or alteration of said building, or any part thereof, shall not be commenced or proceeded with until said statements and plans .shall have been so filed, and approved by the superintendent of buildings.”

And by section 505, it is provided that the owner or owners of any buildings or parts thereof, or any architect, builder, carpenter, or mason who may be employed thereon in the commission of any violation of these provisions, shall, for each and every violation and noncompliance, be subject to a penalty.

We think it clear that this contract, subject, as it was, to the rules and regulations of the building department, must have been made subject to these provisions. It is here expressly made the duty of the owner of the building, or his agent or architect, to submit to the superintendent of buildings a detailed statement in writing of the specifications, and a complete copy of the plans of the proposed work; and until this provision had been complied with, and the plans and specifications of the proposed alterations had- been submitted to the building department, and the department had approved thereof, the obligation of the defendant to make alterations did not exist. By section 504 the owner of the building would have been liable for a penalty in case the defendant had proceeded with the alterations, unless these provisions had been complied with, and the consent of the department obtained.

There is nothing in the contract itself which throws upon the defendant" the burden of obtaining the .approval of the department of buildings of these plans and specifications. His obligation. was to make the alterations within 90 days after the commencement of the term, subject to the rules and regulations of the building department. The law required the owner, before the commencement of such alterations, to submit the plans and specifications to the department, and obtain its approval ; and, while provision is made in the section above referred to for a person other than the owner presenting such plans and specifications to the department, without an express covenant on his part, as between the owner and the contractor, that the contractor will present the plans and specifications to the department for approval, it is difficult to see upon what principle the contractor who has agreed to erect the building is liable for a failure promptly to present such plans and specifications to the department, and obtain its approval. The parties who contracted must be presumed to have understood the provisions of the law relating to the department, and the obligations of the owner, as well as the contractor, to refrain from commencing any alterations until the department had approved the plans and specifications of such alterations. It will be presumed that neither of the parties to this agreement intended to make these alterations in violation of the law; and for the defendant to have commenced the alterations under the agreement without the approval of the department would have been of no possible advantage to the plaintiffs, but, on the contrary, would have exposed them to the penalties prescribed by section 505 of the consolidation act, before cited. It is not necessary to determine whether or not the defendant proceeded with diligence to obtain the approval of the department of the plans and specifications of the alterations proposed. Until the approval of the department of such plans and specifications had been obtained, it "was impossible for the defendant to comply with the terms of the contract to do the work in accordance with the rules and regulations of the building department. "From the very nature of the contract itself, it was impossible to perform it until such approval had been obtained; and, until such approval had been obtained, there was no breach of the contract by the defendant. •

It appeared from the evidence that at the time of the commencement of this action, not only had such approval not been obtained, but neither the plans nor specifications had been submitted to the department; and the evidence seems to have been uncontradicted that the plans and specifications referred to in the agreement itself never were approved by the department, but that subsequently the department refused its approval, and that, in consequence of such refusal, the contract, by its very terms, became impossible of performance.

Ueither of the parties has cited any authority exactly in point. It is, however, a general rule, applicable to all contracts, that if the subject-matter and agreement be such that the performance of it would either consist of doing a forbidden act, or be so connected therewith as to be in substance a part of the same transaction, the law cannot command the parties', to perform that agreement.” See 3 Am. & Eng. Enc. Law, p. 869, and cases cited. To have complied with this contract according to its terms, without the consent of the department, would have been to do an act contrary to the express provisions of a statute of this state; and in such a case the court will give no assistance to either of the parties to the agreement. In the absence of an express covenant on the part of the defendant to obtain the approval of the building department of the plans and specifications upon which the work was to be done, there can be, we think, no breach of such contract until the law has been complied with, and the plans and specifications approved by the proper authorities.

We think, therefore, that no cause of action existed in favor ■ of the plaintiffs against this defendant upon this third cause of action, and the judgment should be reversed, and the complaint dismissed, but, under the circumstances, without costs.

VAN BRUNT, P. J., concurs.


author:
INGRAHAM, J.
      O’BRIEN, J.

text:
    Charles Lingsweiler et al. v. George William Hart et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Wills—Construction—Estate.
    A devise in trust to pay the income to testator’s widow for life, and on her death to divide the estate equally between testator’s children, or the issue of any children who should die leaving issue, gives to each of the children of testator, living at his death, an estate alienable during the lifetime of the widow, but defeasible as to any child on his death during the widow’s lifetime.
    S. Vendor and purchaser—Conveyance of defeasible estate—Rights of vendors inter se.
    Devisees of an estate in remainder, defeasible as to any who should die during the lifetime of the life tenant, conveyed it with joint and several covenants that they were seised of an indefeasible estate of inheritance, and took from the purchaser, for part of the price, a mortgage bond which provided that, if the title of any of the devisees (grantors) should fail, the purchaser might make a reasonable payment to acquire such interest, and that the sum so paid should be a credit on the bond, and that the covenants of warranty should only remain in force for the residue. Held, that where one of the devisees died during the lifetime of the life tenant, and the purchaser acquired her share of the property from her children, to whom, by the terms of the will, it passed, her estate was not entitled to share in the amount due under the bond, since the consideration failed as to her. O’Brien, J., dissenting.
    3. Same—Failure of title of one of several vendors.
    Where the owners of a defeasible estate convey it with a joint and several warranty, and take a bond for the price, stipulating that, if the share of any grantor should fail, the purchaser might acquire such share, and deduct the amount so expended from the amount of the bond, and that the liability of the grantors on their covenants should remain in force only as to the residue, and the defeasance occurred as to one of the grantors, the other grantors are entitled to be subrogated to the rights of the purchaser as to so much of the amount expended by him and deducted from the bond in acquiring the defeated interest as should exceed the interest therein of the grantor whose estate was defeated. O’Brien, J., dissenting.
    Appeal from special term, New York County.
    Action by Charles Lingsweiler and others against George William Hart, as trustee, impleaded with others, to foreclose a mortgage. There was a judgment in favor of plaintiffs, and from portions thereof defendant George William Hart appeals.
    Alexander Thain, for appellant; H. B. Closson, for respondent, Loeb; Arthur R. Robertson, for respondents Lingsweiler and others.
   INGRAHAM, J.

—I agree with Mr. Justice O’Brien that the interests of Mrs. Schoeneman in the real estate in question at the time of the conveyance was dependent upon the precedent life estate in her mother; that, by her death prior to her mother’s, her interest ceased, and her children took a vested estate in remainder under the will; and that this interest of Mrs. Schoeneman was alienable, though liable to be defeated by her death before the death of her mother, although I am of opinion that the remainder was contingent upon her surviving her mother, the intention of the testator clearly being to postpone the vesting of the estate until the death of the life tenant, for, by the will, the direction was that after the death of her mother the whole of said property, both real and personal, was to be divided and paid over equally among the testator’s children then surviving, or the issue of any children if any should die leaving issue, such issue to take a parent’s share. The estate granted, however, by either of the children of the testator during the lifetime of the mother, would be dependent upon such child’s surviving her mother; and, in case the child died before the mother, no estate could pass under such a conveyance. Upon the death, therefore, of Mrs. Schoeneman, the undivided sixth interest in the estate vested in her children, subject to the life estate of her mother; and the defendant Loeb, upon the happening of that contingency, was the owner in fee of but five-sixths of the real property described in the conveyance, the other one-sixth being vested in the children of Mrs. Schoeneman. As no estate vested in Mrs. Schoeneman, no estate passed by her deed to Loeb. Had she survived her mother, the remainder would then have vested, and, under the covenant of warranty in the deed, an estate would then have passed to Loeb, conveying her undivided one-sixth of the property of the testator; but, such interest never having vested, no estate passed under the deed of the one undivided one-sixth devised to her upon the death of her mother. It- is quite apparent from a consideration of the deeds and the bond and mortgage that the parties to this transaction correctly appreciated the situation, understood the effect upon Loeb’s title to the 'property of the death of one or more of the children of the testator before their mother, and that the deed and bond and mortgage were prepared with a view of protecting Loeb1 on the happening of such a contingency. The deed which was executed and finally accepted by Loeb contained a covenant whereby the parties of the first part (the grantors) did jointly and severally covenant and agree to and with the party of the second part, his heirs and assigns, that the said parties of the first part are lawfully seized in their own right of a good, absolute, and indefeasible estate of inheritance in fee simple, of and in all and singular the above granted and described premises, with a general covenant of warranty. There was a breach of this covenant of title at-the time of the execution of the deed. Neither of the grantors had a good, absolute, and indefeasible estate of inheritance in fee simple in the property. They had, however, an interest in the property which, upon the death of their mother, would become such an estate as they had intended to convey; and, under the covenant of warranty, that estate would become vested in the grantee upon the death of the mother. This being the condition of the title, Loeb accepted the deed in question, paying a portion of the consideration for the property in cash, and giving back a bond which was to become due upon the death of the mother in whom the life interest was vested, secured by a mortgage upon the property conveyed. That bond ran to the children of the testator jointly. There is no express provision in the bond as to the respective interests of the obligees, and it would be assumed, therefore, that they were entitled to share equally. . That, however, was a mere inference drawn from the absence of an express or implied provision of a contrary intention as between the obligees themselves ; and it seems to me that the question to be determined is whether or not the facts and circumstances surrounding the transaction show that such an intention existed as between, the obligees.

It is quite immaterial to the obligor just what disposition the obligees should make as between themselves of the amount that was due under the bond ; and we have to determine whether or not there was an express understanding or agreement as between the obligees as to the disposition that was to be made of such amount due, or, in the absence of an express agreement, whether the law implies an agreement as to the disposition, as between the obligees, that should be made of the amount due under the bond. As before stated, the sole consideration for the giving of this bond was the execution of the deed by the six children of the testator, which assumed to convey to Loeb the remainder of the property in question. The deed itself, when executed, conveyed no title to the premises. It did transfer whatever right the grantors had; and, upon the estate vesting in them by the death of their mother, it would, by estoppel, vest a valid title to the premises in the grantee, provided the children of the testator survived their mother. If all the children of the testator had died before their mother, no title at all would then have vested in the grantees, and the consideration for the bond would have wholly failed. By the death of Mrs. Schoeneman, her undivided one-sixth interest in the property vested in her chilhrenupon the death of the life tenant.; and, by an express provision of the bond, the obligor became entitled to acquire, the one-sixth undivided interest that became vested in Mrs. Schoeneman’s children, and to deduct from the amount due upon the bond the amount necessarily expended by him in acquiring such title. The effect of this provision would, it seems to me, indicate an intention among the obligees that the obligee whose title failed, and whose conveyance furnished nq consideration, should not share in the amount due under the bond ; especially where it appeared that, by the breach of a several covenant in the deed, the obligee or her estate became liable to the obligor for the damages sustained in consequence of a breach of the covenant of title. The situation that existed upon the death of Mrs. Schoeneman before her mother was that her estate was liable to Loeb for the damages that he had sustained in consequence of a breach of her covenant of title. It is conceded by all the parties that those damages consisted of the amount that he was compelled to pay to acquire the title of her children to the undivided one-sixth of the property which she had assumed to convey to him. "Under the provision of the bond, he had acquired that interest by purchase from her children, and was entitled to deduct the amount that he had paid to acquire such title from the amount due upon the bond, and that bond was correspondingly reduced. Thus, his claim against the estate of Mrs. Schoeneman was satisfied by deducting from the amount due upon the bond the amount which, under the bond, she would have been entitled to receive, and, in addition thereto, an amount equal to $T00 from the share that each of the other obligees would be entitled to receive. That amount Loeb paid, .and deducted from the amount that otherwise he would have had to pay to each of these obligees; and it seems to me quite clear that each one of the obligees became subrogated by such payment, which Loeb enforced in pursuance of an agreement that was binding upon Mrs. Schoeneman, to the right to enforce the covenant añade by Mrs. Schoeneman that she had a good and indefeasible title in fee simple to the premises in question. That right to enforce such covenant, having passed by subrogation to each of the obligees of the bond to the extent of their interests in the bond, entitled them to claim from the estate of Mrs. Schoeneman the amount that each of them would have been entitled to receive from Loeb in the event that Mrs. Schoeneman had outlived her mother ; and' thus her conveyance to Loeb would have become operative.

Uo case exactly in point has been cited to us, but it seems that the principle established in the case of Pease v. Egan, 131 N. Y. 272, 43 S. R. 105, applies. There a testator had left certain real estate to his wife for life, with the remainder to his children upon the youngest child attaining the age of 21 years. That real estate was subject to a mortgage. He also left certain personal estate to which the children would become entitled absolutely upon the death of their mother. The widow in order to protect the real estate, paid out of this personal estate the mortgage, causing the same to be satisfied of record. One df the children died before the youngest child arrived at the age of 21, and the question was whether or not this mortgage upon the real estate passed by way of subrogation to the representatives of the deceased child, so as to entitle them to enforce the lien of the mortgage against the real estate. The court say :

“ The daughter, in fact, has discharged a debt against another, and in the discharge did not act as a mere volunteer. This gives a right of subrogation. The fact that, if she had had an absolute interest in the property as devisee, she would have been "bound to pay the mortgage to the exoneration of the testator’s personal estate, does not make the mortgage debt her own. Whether she had any interest in its payment was based upon whether she was a devisee of the realty, and that was based upon a contingency which had not yet occurred ; and, when she paid the mortgage or some part thereof, she took the chance of paying a debt for which she was not responsible, in order to preserve an estate her interest in which was contingent. When the contingency subsequently occurred which proved that she had no interest in the property which she had aided in preserving, justice demanded that her estate, which has thus suffered, should be treated as if it had paid the debt of another.”

It seems to ipe that this condition exists in this case. These five surviving obligees to this bond have paid a portion of the debt of Mrs. Schoeneman’s which was due to Loeb by virtue of the breach of her covenant of title in the conveyance in question. That was not a voluntary payment, but was a payment by Loeb, deducted from the amount due to these obligees under the provisions of the bond, which were binding upon Mrs. Schoeneman. Thereby these five obligees became subrogated to the claim that Loeb had as against Mrs. Schoeneman to enforce the breach of her covenant of title, and thus became entitled to compel Mrs. Schoeneman’s children to make good to them the loss which they had sustained in consequence of Loeb’s enforcing the agreement to repay to him the amount due him from Mrs. Schoeneman in consequence of the breach of her covenant of title.

I think, therefore, that the judgment was right, and it should be affirmed, with costs.

YAN BRUNT, P. J., and WILLIAMS, and PATTERSON, JL, concur.

O’BRIEN, J.

(dissenting).—There is no serious dispute about the facts, which are clearly and succinctly stated in the opinion of the learned judge at special term, as follows :

“ This is an action for the foreclosure of- a purchase-money mortgage. The property originally belonged to one Jacob Lingsweiler, who died in June, 1882, leaving a will, which was admitted to probate in August, 1882. By this will, he devised the premises in trust to his executors, to collect and receive the income, and, after paying the necessary expenses of the estate, to pay the remainder of said income to the widow during her lifetime, and upon her death the real and personal property was directed to be divided and paid over equally between his children named in said will, or the issue of said children if any should die leaving issue. The six children of Jacob Lingsweiler, with the widow, their mother, conveyed the premises to the defendant Loeb, by two deeds, each deed containing the usual full covenants. One of the deeds was dated May 10,1887, and was signed by the widow and the six children. After this deed ivas drawn, and before its delivery, on May 18, 1887, Frederick, one of the children, conveyed his share in the premises to his brother Charles. The deed of May 10th not being satisfactory to Loeb, as to its covenants, another deed, dated May 27, 1887,. was drawn; the covenants therein being not merely joint, as in the previous deeds, but joint and several. Frederick did not join in this deed, having already, as above stated, conveyed his interest to his brother Charles. The two deeds were then delivered to and accepted by Loeb ; and the mortgage and bond for $15,000 now in suit were given back to him. Julia Schoeneman, one of the heirs of Jacob Lingsweiler, died on the 17th, of November, 1888, during the lifetime of her mother; and her estate is represented in this action by the defendánt Ilart, who succeeded her executor on the resignation of the latter. The mother, Elizabeth Lingsweiler, died on the 15th of August, 1893. Mrs. Schoeneman, the daughter, left three children, who were of full age at the time of the trial, and who are parties to this action, in the bond for $15,000, executed by Loeb at the time of the delivery of the deeds aforesaid, the following provision was inserted": ‘ And in the event that the title to any share or interest in the sáid premises shall fail, the said Solomon Loeb, his heirs, executors, administrators, and assigns, may make such reasonable payment as shall acquire the share or interest which shall so fail, and the amount so paid shall constitute a credit upon the principal sum provided to be paid by this bond ; and in the event that the said Solomon Loeb, bis heirs, executors, administrators, and assigns, shall not acquire such share or interest by payment, the reasonable value thpreof shall constitute a credit upon the said principal sum, it being understood that any amount of which the said Solomon Loeb, his heirs, executors, administrators, or assigns, shall thus obtain the benefit, shall correspondingly reduce the liability of the said obligees on the covenants undertaken by them in their said deed, and that said covenants shall remain, and shall only remain, in force for any residue or liability upon their part.’ Julia Schoeneman having died before her mother, as before stated, the defendant Loeb' purchased the interest of her children in the property, and paid therefor the sum of $6,000, to which it is conceded that he' is entitled as a credit upon the bond, thus reducing the principal sum to $9,000.’

The legal questions presented are : (1) What, if any, was the interest of Julia Schoeneman in the property at the time she joined in the conveyance to Loeb ? (2) What was the interest of her children upon the death of the life tenant, she having died before that event % (3) Has Mr. Hart, as trustee or administrator of Mrs. Schoeneman, any interest in the unpaid $9,000 ? (4) Should he be required to pay to the plaintiffs the amounts by which their shares in the mortgage were diminished, by allowing a credit of $6,000 on the bond %

The two first of these questions involve a construction of the will of Jacob Lingsweiler. It will be noted that there is no gift made to the children, except by the direction to the trustees to divide and pay over the estate to the children on the death of the wife; and the rule applicable in such case is that the gift to the class includes only those of the class living at the time that the gift takes effect. The testator, apart, however, from any rule, expressly provided that it was only the children “ then” (i. e. at the death of his wife, Elizabeth) surviving among whom his estate should be distributed. The direction to the executors is to divide among the children then surviving, “ or issue of children, if any shall die leaving issue, such issue to take the parent’s share.”

In Re Baer, 147 N. Y. 348, 69 S. R. 694, where the will directed the trustees to apply the rents, etc., to the use of the life tenant, “ and at her death to convey the remainder ‘ to the children and lawful heirs of my brother Harmon Hendricks, deceased, to share and share alike, per stirpes,’ ” the court said:

Where final division and distribution is to be made among a class, the benefits of the will are to be confined to those persons who come within the appropriate category at the date when the distribution or division ist directed to be made. * * * In such cases the gift is contingent upon survivorship, and, if it vests at all before the date of distribution, it is subject to be divested at the death before that time of a person presumptivély entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet it may be said to be a general rule, and there is nothing to be found in the will in question to prevent its full application. Moreover, there are not in this devise any words of direct and immediate gift to the children or heirs of the brother, but a direction that the trustees should convey to them at a future time, on a certain contingency. They were to take through the medium of a power in trust, and the time of the vesting of the interest was thus deferred in form, at least, until the time of distribution. It is a case, then, where, as the cases express it, £ futurity is annexed to the substance of the gift,’ and warrants the application of the principle that where a future interest is devised, not ■ directly to a given person, but indirectly through the exercise of a power conferred upon trustees, the devise is designed to be contingent, and survivor-ship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift.”

See, also, Campbell v. Stokes, 142 N. Y. 23, 58 S. R. 451.

It will thus be seen that the construction here given to the will is similar to that given to it by the learned trial judge, that Mrs. Schoeneman was vested with a remainder dependent upon the precedent life estate in her mother, and that, by her death prior to her mother’s, her interest ceased, and her children succeeded as remainder-men under the will. The estate, however, of Mrs. Schoeneman and of all the other children of Jacob Lingsweiler, of which they became possessed at the death of their father, was, nevertheless, an estate which belonged to them, and was none the less alienable, even though liable to be defeated by the death of any of them before the death of their mother. Sheridan v. House, * 43 N. Y. 569 ; Moore v. Little, 41 N. Y. 66; Woodgate v. Fleet, 44 N. Y. 1; Ham v. Van Orden, 84 N. Y. 257; Surdam v. Cornell, 116 N. Y. 305; 22 N. E. 450. The complaint correctly alleges, therefore, that, under the will, the six children of Jacob Lingsweiler became vested with equal undivided remainders in fee in said premises, each undivided remainder being defeasible by the death of its owner before the death of Elizabeth Lingsweiler, the widow and life tenant; ££ that the interest of each child was alienable by such child ; that, being so vested with such estates in remainder, said six children, together with their mother, the said widow of "Jacob Lingsweiler, * * * by a written contract under their hands and seals, agreed with said Solomon Loeb to convey to him the said premises, for a consideration of $35,000 ” ; that, pursuant to this contract, they did execute and deliver two deeds purporting to convey the said premises to said Loeb, with the usual full covenants ; that by one deed they jointly covenanted, and by the second they jointly and severally covenanted, that they “ were lawfully seised in their own right of a good, absolute, and indefeasible estate of inheritance in fee simple of said premises,” and jointly and severally covenanted with said Loeb “ that they had good right, full power, and lawful authority to grant, bargain, sell, and convey said premises,” and jointly and severally covenanted with said Loeb that the said premises were free and clear of all former and other grants, titles, estates, and incumbrances,” and jointly and severally covenanted with said Loeb, in the usual form, and they would warrant and forever defend the said premises unto said Loeb, against all persons lawfully claiming the same.’ Beading these covenants in the light of the conditions inserted in the mortgage and bond, it is evident as to what was the intent of the covenantors, and in what sense they were understood by the covenantee, Loeb, because, not only did they not have at that time an “ indefeasible estate of inheritance in fee simple,” but they knew it, and Loeb knew it, and the provision was made that, in the event of any of the children who were covenantors dying before the life tenant, then Loeb should purchase the interest which had thus passed to the issue of the child dying, and provision was also made for his being reimbursed for any moneys so paid, and for crediting the same upon the principal sum clue on the mortgage. That this was the understanding of all the parties is further evident'fromthe fact that Loeb had taken a lease of the premises for 21 years, and the deeds to him were expressty subject to such lease; and in addition, the mortgage, by its terms, was not payable until the, death of the widow and life tenant.

Having thus in view the situation of the parties to each other respectively, it .is not difficult to determine just what was the contract and the purpose of "these several instruments. Loeb wanted to purchase the property, and the others were willing to sell; but there was the one difficulty in the way, that, as the interest of any child was liable to be divested by his or her death before the life tenant, provision had to be made to protect Loeb for any amount that he might be obliged to pay to secure the interest so failing. And, as a result, we have the lease, the two deeds referred to, and the mortgage and bond, with similar provisions to protect Loeb, one of which extended the time for the payment of the principal of the mortgage until the death of the life tenant, when, only, it could be determined "who had an indefeasible estate in fee simple in these premises. This estate of the children of Jacob Lings weiler, which was a vested, alienable, future estate, and a separate and distinct interest from that of the contingent remaindermen* was what was purchased by the defendant Loeb, and conveyed to him by the two deeds. This estate the children had aright to sell, and Loeb to purchase; for, though it was but a future estate, whether vested or contingent, it was “ alienable in the same manner as an estate in possession.” 1 Rev. St. p. 722, etc.; 3 Rev. St. (Birdseye’s ed.) pp. 2525-2530, §§ 13, 35. Having, therefore, an estate or interest to sell, the consideration thereof, including the bond and mortgage, became at once the property of these six children.

Unquestionably, Loeb understood that he was not purchasing all the outstanding estates in the land, and that the children, one and all, understood that they were selling their own interest, and did not purport to sell, and could not sell, the interest of any contingent remainder-men, and hence the agreement in renard to the reduction of the mortgage. This agreement embouied in tho bond is that, in “ the event that the title to any share in said premises shall fail,” Loeb should make such reasonable payment as should be necessary to acquire a good title, and that the amount cf money so paid should be credited upon the bond and mortgage. This is the whole agreement. The six children might have further agreed that in case any of them should die before their mother, and Loeb should acquire, by purchase, the interests of those who would then take an estate in possession in the lands on the death of the widow, and thus become entitled to a credit on the bond and mortgage, then the estate of the child so dying should not have any interest in the bond and mortgage, and should repay to the surviving children the amount by which the said bond and mortgage was reduced. It was upon the theory that such an agreement should have been made, and because entirely equitable, that the learned trial judge reached the conclusion that the defendant Hart, as trustee of Mrs. Schoeneman’s estate, had no interest in the bond and mortgage, and should repay to the plaintiffs the amount which they lost by the payment which Loeb had to make.

The difficulty with this conclusion is that there is no evidence of any such agreement having been made between the parties, and the mortgage and bond are payable to all the children by name, respectively, and to “their executors, administrators, or assigns.” Moreover, the cash purchase money was paid to the children ; and it would be just as equitable for the estate of Mrs. Schoeneman to pay back to the others what she received of this cash as to take away from her estate the legal interest which she undoubtedly had in the bond and mortgage. What Loeb purchased and paid cash and gave a mortgage for was the estates which the children then had in the property; but having been undoubtedly advised of, and having in mind, the contingency of the death of one or more or all of these childern before their mother, provisions were inserted in the bond and mortgage, and covenants in the deed, which were intended to protect Loeb. He took the risk of the children dying, and bought all that he could then purchase, and gave therefor the cash and mortgage to those avEo sold him all they then had to sell. The latter then acquired, for the interests Avhicli they parted Avith, as good a legal title to the bond and mortgage as they did to the cash purchase money. The agreement between themselves Avas that they should all stand equahy, all receive an equal amount of the proceeds, all be equally interested in the mortgage, all be liable on the covenants in the deed, and that any reduction of that liablity should inure to the benefit of all. Such an agreement is not one A\rhich a court of equity Avould be Avarranted in setting aside, even though Ave conclude that it would have been fairer, in view of Avhat has transpired, if some proA'ision had been made by which, upon the death of one of the children, her interest in the mortgage should have ceased, and that the others should be entitled to be reimbursed for anjffhing that Loeb should be required to pay to secure the interest Avhich by death thus failed.

It is urged, hoAvever, that the covenants into AAdncli Mrs. Schoeneman entered Avith the others are sufficient to justify the ■ court in withholding from her estate any participation in the mortgage, and in compelling it to make good to the others what they have lost by reason of her death and consequent failure of title; that while conceding that Mrs. Schoeneman had, and that Mr. Hart now has, the legal title to a one-sixth interest in the bond and mortgage, he should, in equity, be •debarred from ever asserting or enforcing such ownership. The argument presented to support this view is that, by their ■confirmatory deed to Loeb, the children jointly and severally ■covenanted that they were seised of the premises in fee, with full power and authority to convey them; that as it is now found that Mrs. Schoeneman was hot seised of her one-sixth, .and could not and did not convey it, it became necessary for Loeb to pay, and he did pay, the sum of $6,000 for such interest ; that, by the credit for this amount given to Loeb in this action, the five surviving children have paid it, and discharged the obligation of their covenant; and that since it was the title to the share of the sixth joint and several obligor, Mrs. Schoeneman, that failed, the five who paid are entitled to be subrogated to the right of Mr. Loeb, and are entitled to recover $3,500, the difference between the $6,000 damages payable by Mrs. Schoeneman and her one-sixth of the $15,000 mortgage. And in this connection the principle is invoked that “if, as between joint debtors, it has become the duty of one of them to pay the entire debt, the others, if they shall be compelled to pay it, shall be subrogated " to the securities and means of payment held by the mortgagor against the former, just as if they had been sureties of the former eo nomine.” Sheld. Subr. § 170.

In the principle invoked, it will be noted that it is applicable only to joint debtors in a case where it has become the duty of one to pay the entire debt, which is not this case; nor do we think the principle of subrogation applicable. The obligation, which was joint and several, was coricededly discharged by the payment of the $6,000; and it was provided in the bond that any payment so made should go in reduction of the liability, and inure to the benefit of all. After the purchase of the estate of the Schoeneman children, Loeb acquired perfect title, and he did this by purchasing from them at an agreed price; and there is therefore no liability of any one on these covenants of warranty. But, granting that such liability did exist, still the reduction of such liability is shared equally by all the children. The covenants in the deed, moreover, were to the defendant Loeb, his heirs and assigns, and were not covenants in favor of the co-covenantors, as against each other. Neither Loeb nor anyone claiming under or through him is here asking for the enforcement of any of these covenants, or claiming damages for any breach of them. The intent of making them joint and several was to enable Loeb, upon a breach, to recover against all jointly, or against any individual covenantor. This, however, does not make them effective as between the co-covenantors, nor is there any language in any of the instruments in which a covenant can be spelled out on the part of Mrs. Schoeneman to her co-covenantors creating any obligation in their favor against her estate. Much of the obscurity concerning the real legal relations of the parties is due to the fact that the $6,000 was paid to the children of Mrs. Schoeneman, who, by her will, will be entitled to receive what her administrator may recover in this action, as part of the proceeds of the mortgage; and it is this feature of their receiving more than any of the others that inclined the court to seek some principle upon which it could debar Mrs. Schoeneman’s estate from participating in the mortgage, and to find a way to compel it to pay what the other children of the testator have lost by reason of the payment which Loeb was obliged to make to Mrs. Schoeneman’s children. I think, however, that if instead of regarding such payment as having been made to the latter, we were to substitute entire strangers, and keep entirely separate and distinct the legal entities, viz. the administrator representing the estate of Mrs. Schoeneman, and the third parties who, by her death, had acquired the interest which Loeb had purchased, we can divest ourselves of the equitable views which are necessarily forced upon us when considering this as a contest between Mrs. Schoeneman’s children and the surviving children of the testator.

The same consideration that supports Mrs. Schoeneman’s title to the mortgage supports her title to the cash purchase money paid; and, if her estate is to be mulcted in damages by reason of her death and failure of title, she should not only be deprived of any interest in the mortgage, and pay what the others lost by reason of Loeb’s payment for the outstanding interest, but, by parity of reasoning, her estate should also be required to repay the proportion of the cash purchase price which she received upon the delivery of the deed. I think it improbable that Mrs. Schoeneman ever intended to enter into an agreement which would be fraught with such consequences to her estate. At the time the property was sold there were the interests of the life tenant and of the six children to be transferred. Assuming, for the purposes of calculation, that the interest of the life tenant in the cash purchase money of $20,000 then paid was $5,000, it would leave to be divided among the six children $2,500 apiece. If we could assume, therefore, that the contract was not to sell, for $2,500 and her interest in the mortgage, what she then had, but was an agreement by which she was to guaranty her co-covenantors for a failure to outlive the life tenant, then, as it has turned out, her estate would be entitled to no interest in the mortgage, and would be liable for $3,500, the difference between her interest of $2,500 in the mortgage and $6,000 which Loeb paid for the outstanding interest to her children, and, in addition, her estate would be liable for the cash purchase money which she received. Or, if we assume that her estate would be allowed to retain the cash paid her, the net result of such an arrangement to Mrs. Schoeneman would be that her future interest in the

Íremises, which was concededly a real one, was conveyed to .oeb, and for such interest Mrs. Schoeneman’s estate was not only to receive nothing, but, in addition, was to pay damages as the result of the transaction. That no such agreement in terms was made is conceded, nor can I see any way in which it can be implied from the documents which the parties used to effectuate their then intention; and it would be giving a forced and unreasonable construction to the covenants in the deed, in the light of what was intended to be effectuated between the parties, to hold that, by the transaction, it was intended that Mrs. Schoeneman was speculating upon her outliving the life tenant, and was not only wagering the interest which she then had in the property,- and which was valuable, —not only risking the increase wliich years might add to its value, and which had been conveyed to Loeb,-—but, in addition, she wagered that, if she did not survive, her estate was to pay the resulting damage. Such an assumption is much more inequitable and unreasonable than the one which I think was undoubtedly made, by which the parties sold their then interest for a consideration in which all participated, and from which all benefitted; and in which all assumed an equal liability.

To summarize, therefore, I think that, in selling to Loeb, Mrs. Schoeneman acquired an equal interest with the others, not only in the cash purchase money paid at the time, but also in the purchase money mortgage now in suit; and that the liability created by the covenants and the provisions of the bond was, by the agreement which they made, shared by all, and has been discharged by the payment of $6,000; that the covenants run to Loeb, his heirs and assigns, and were intended to protect him, and were not intended to protect one covenantor as against the others; that the theory and arguments advanced for holding Mrs. Schoeneman’s estate liable to make good to the others what they have lost by the payment of the $6,000 would be equally effectual in charging her estate for the cash purchase price which she received at the time of the delivery of the deeds to Loeb; and thence the conclusion would follow that, for an interest which she could sell and convey, she was not entitled to receive anything.

The decision is in the short, new form allowed by section 1022 of the Code of Civil Procedure, and although the general exception prescribed by that section was not taken, but specific exceptions to portions only of the decision, leaving material parts not excepted to, I think they were sufficient to raise the question as to the interest of Hart as trustee in the mortgage.

Having reached a different conclusion from the learned trial judge, the portions of the judgment appealed from should be reversed; and Hart, as administrator or trustee, should be awarded a one-sixth interest in the balance of $9,000 due on the mortgage, and the interest of the other parties should be correspondingly reduced, and the provision for the payment by Hart of any portion of the costs below stricken out, with costs of this appeal to the said Hart.


author: PER CURIAM.

text:
    Thomas Hyland v. John Burns et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Negligence—Children—Question eor jury.
    Negligence is a question for the jury where a child seven years old is injured by the toppling over of stones piled in the street by defendant.
    Appeal from city court of Brooklyn, trial term.
    Action by Thomas Hyland against John Burns and James Y. Johnson, composing the firm of Burns & Johnson, to recover damages for the loss of service of plaintiff’s child by reason of injury to the child’s hand. The complaint was dismissed on the merits, and plaintiff appeals.
    John J. Leary, for appellant; Paul E. De Fere, for respondents.
   PER CURIAM.

—The jury would have been authorized to find, upon the evidence, that the piling of the stone in the street line constituted an unlawful obstruction in the street, and was, therefore, a nuisance. Cohen v. Mayor, 113 N. Y. 534; 23 S. R. 509; Wells v. City of Brooklyn, 9 App. Div. 61; 41 N. Y. Supp. 143. If the child was sui juris, which may not be affirmed as matter of law, the question of her negligence was for the jury, upon the evidence. If she was not sui juris, the question arises upon the negligence of the parents. The child was seven years and four months old. The mother testified that she cautioned the child, when upon the street, to stay in front of the house. At the time the mother -was engaged about her household duties. The child had been absent for about half an hour, and the mother understood she was at play upon the street. Under these circumstances the question whether proper care required of the mother more attention than she gave the child was for the jury to answer. The father of the child worked in the stoneyard opjiosite which the stone was piled, and evidence was given by defendants which tended to establish that he was instrumental in creating the obstruction which occasioned the injury. If this fact were conceded, we should have an entirely different question from that which disposes of this appeal. But this fact ivas not conceded. On the contrary, he testified that he had not worked at this place during the spring and winter prior to the injury. And the proof of defendants fails of showing that the father piled the stones that inflicted the injury. We are of opinion that the case presented a question of fact for the jury, and that the court erred in disposing of it as a question of law.

The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.