author: Barrett, J. Follett, J.,

text:
    William F. Smith, Resp't, v. John T. Ijams et al., Ex’rs, App’Its.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Decedent’s estates—Evidence.
    In an action brought against executors to recover the price of a certain business which the plaintiff alleged that he sold to testatrix defendants denied the sale, hut admitted that the business was turned over to testatrix on account of a debt from plaintiff to her. The debt was made up of loans to the amount of $100,000, made to plaintiff by testatrix, his mother, to carry on the business in question, and. for which he gave notes. It ! appeared from the evidence that testatrix agreed, on the transfer of the ; business to her, to sell it and pay the proceeds to plaintiff, excluding from • consideration his debt to her. She sold the business for $22,000, taking another son’s note in part payment. The only leference to plaintiff in testatrix’ will was: “ I have given him all I ever intended to give him, so by the conditions of this will he inherits no further portion than that which he has already enjoyed.” Held, that an intention was shown on the part of the testatrix to release plaintiff's debt to her, and to pay him, in addition, the value of the business, and that a judgment in his favor of $22,000 was proper.
    2. Bills and notes—Payable on demand—Statute op limitations.
    The statute of limitations runs immediately against notes payable on demand.
    3. Same—Payable after demand.
    But if payable at any period of time after demand, it seems that an actual demand must be made to fix the period of maturity when the statute commences to run.
    4. Same.
    But unless delay is contemplated by the terms of the contract, it would seem that a demand should at least be required within a reasonable time, and that the statute should commence to run at the expiration of the prescribed period thereafter.
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying motion for a new trial.

      Bangs. Stetson, Tracy & Mac Veagh (Francis Lynde Stetson, of counsel), for app’lts; Havens & Beebe (A. Britton Havens, of counsel), for resp't.
   Barrett, J.

This action was brought against the executor and executrices of Phoebe Smith, deceased, to recover the price ■of a certain business which the plaintiff alleges that he sold to the decedent (who was his mother) in the month of December, 1884. The defendants, in their answer, deny the sale, but admit that the business was turned over to the decedent. Prior to the transfer the decedent had advanced large sums of money to the plaintiff (and his partners) for the purposes of the business, and at the time of the transfer he was indebted to her in the amount ■of these advances; and the defendants claim that the transfer was to the decedent as a creditor, but not as a purchaser. The answer then sets up by way of counterclaim the promissory notes given by the plaintiff and by his firm for these advances, and asks judgment for the total amount thereof. The plaintiff replies to the counterclaim, reaffirming his allegation of a sale, and pleading the statute of limitations as against the notes. He also claims in his reply that by her will the decedent canceled his indebtedness to her, and discharged him from all liability thereupon, including these notes; and in support of this claim he sets forth the following pi-ovision of the will:

“ Sixth. To my son, William F. Smith, I have given him during my lifetime all I ever intended to give him, so by the conditions of this will he inherits no further portion than that which he has already enjoyed.”

Upon the trial the defendants permitted the plaintiff to testify without objection to the transaction with his mother. He accordingly narrated all the facts which he recalled with regard to the agreement. His testimony abundantly supported the averments of the complaint upon that head, and he was corroborated in several particulars "by other witnesses. There was clearly enough to go to the jury and to support their verdict on the issue with regard to the sale.

The real question is whether such agreement included the forgiveness and cancellation of the plaintiff’s indebtedness upon the notes set up in the counterclaim. The amount of this indebtedness was nearly $100,000. The plaintiff testified that his mother agreed to pay for the business whatever was realized after the accounts were collected, and the obligations owing to different merchants paid, but that her account representing the indebtedness in question was to be excluded from consideration. The net-amount ultimately realized from the business was $28,956.23, while the actual amount realized by Mrs. Smith was but about $22,000 ; for it seems that, after taking the business, and receiving therefrom less than $2,000 in cash, she in a short time turned it over to another son, but the consideration given by this other-son was his own note for $20,000, which has never been paid. The verdict was for $22,000 and interest, so that the jury treated this latter sum as what Mrs. Smith “realized,” within the meaning of the agreement.

The defendants’ contention is that the plaintiff’s existing indebtedness remained in full force notwithstanding the sale, and that it still exists, subject only to a credit for the $22,000 so. realized. On the other hand, the plaintiff contends that in excluding the existing indebtedness from consideration at the time of the-sale, the intention was to wipe it out as an obligation. These-varying contentions present an interesting question, but, upon the whole, we think the circumstances were such as to justify its presentation to the jury. The defendants rely upon the consideration that there is no direct evidence that the indebtedness was-forgiven; that, as matter of fact, the notes were not given up or physically canceled ; and that, some six months prior to the sale, Mrs. Smith agreed verbally not to sue her son upon these same notes for ten yerrs. But, while there was no direct evidence of cancellation, there were strong circumstances from which forgiveness of the indebtedness might properly be inferred.

In the first place, the relations between the parties were not those of ordinary debtor and creditor. Mrs. Smith was the plaintiff’s mother. She had derived from her husband a fortune, which was largely accumulated in the conduct of this very business. After the death of the husband the business was continued by the plaintiff, his brother Clarence, and the decedent’s son-in-law, Looser; but the capital, which in the father’s lifetime was between $300,000 and $400,000, was now reduced to $75,000. Mrs. Smith assisted the new firm, from time to time, with advances, which finally amounted, as we have seen, to nearly $100,000; but seemingly the business did not prosper. First Looser retired; then Clarence; and in December, 1884, the plaintiff found himself alone, with a business worth less than $29,000. It is evident that Mrs. Smith’s advances had meanwhile been sunk, and that her efforts to assist her sons to follow in their father’s footsteps had failed. She had nothing to show for her loans except unsecured acknowledgments of indebtedness in the shape of notes. These notes she never used in any manner, nor did she demand payment thereof at any time during the eight years they were in her possession. In fact, she never acted in any wise as a creditor with regard to those obligations. She seems rather to have looked upon them as representative of advancements made to her sons of their share of her estate. If she did not look upon them in this light, the provisions of the will are worse than meaningless, and her agreement to pay for the business seems quite unaccountable. Why, indeed, should she exclude her account from the consideration to be given for the business, unless she treated her son’s indebtedness merely as a mother’s advancement, to be charged against him in the ultimate disposition of her property ? Why should she pay him presently whatever might be realized from the business, if this indebtedness was vital? Why not simply credit upon the larger indebtedness to her the amount to be so realized? It is no answer to this to say that she realized little or nothing because Clarence did not pay his $20,000 note. The question is, why did she agree to pay whatever might be so realized ? And why, when the plaintiff, from time to time, demanded this agreed consideration, did she put him off upon the plea that Clarence had not paid her? ■ The evidence on this head is clear and conclusive. The bookkeeper, Powell, testified that before the sale Mrs. Smith told him that she was going to purchase the plaintiff’s interest, and requested him to go over the books, and make an estimate of the value of the business, excluding her account.

Clarence testified that on one occasion his mother told him that she was going to pay the plaintiff what the business was worth. Another son, Isaac, testified to a conversation with her, in which her purchase of the business from the plaintiff came up. He wanted to borrow some money from her, and she told him she could not lend him any money, as she owed the plaintiff too much, and it would take all she had to pay him. But for another circumstance, it might be said that all this was consistent with an intention to keep the indebtedness alive, but not to press yet awhile for payment That other circumstance, however, points conclusively to a gift, and to the consequent exclusion of the indebtedness from consideration, at a time and under circumstances when, if deemed existent, it would naturally have been adverted to and utilized. We refer to the provision of Mrs. Smith’s will already quoted. It should be observed that a precisely similar provision is made with regard to Clarence, and that substantially the whole estate, amounting to over $200,000, is given to the two daughters. The evidence shows that Mrs. Smith had never given anything to the plaintiff except the advances in question; nor to Clarence, unless the business itself, which was turned over to him for his $20,000 note, be considered an additional gift. This provision, then, written, we are told, by her own hand, was either á declaration that she had given the plaintiff these advances, or it was a piece of solemn mockery. Surely this mother was not, at so serious a moment, guilty of flippant indecency. She never could have meant to say that she had given her son during her lifetime all she ever intended to give him, to wit, nothing; that that nothing was his “portion;” and “so he inherits no further portion than the nothing he has already enjoyed.” No. The reasonable construction of her words, the only construction consistent with respect, is this: “ I have given to my son during my lifetime all I ever intended to give him, to wit, the advances evidenced by these notes. That gift is his ‘ portion.’ That he has already enjoyed, and ‘so ’ he inherits no ‘further portion.’ ” Thus, after death, she speaks as a mother to a son with regard to his share of her estate, and not as a creditor to a debtor with regard to a debt due to her. We think the learned judge at circuit could not, upon these facts, have properly taken the case away from the jury, and directed a verdict for the defendants. The question was fairly and clearly put to the jury, and the verdict is, in our judgment, conclusive.

But, even if these notes were not forgiven or canceled, we do not think the defendants have established their counterclaim thereon. It may be true that the plea of the statute of limitations cannot avail as against the notes that were payable “ one day after demand.” The statute runs .immediately against notes payable on demand. In that case the word “ demand ” is not treated .as part of the contract, but is used to show that the debt is due. McMullen v. Rafferty, 89 N. Y., 459. But if payable at any period of time after demand, the weight of authority would seem to favor the doctrine that an 'actual demand must be made to fix the period of maturity when the statute commences. Wenman v. Mohawk Ins. Co., 13 Wend., 267 ; Little v. Blunt, 9 Pick., 488; Codman v. Rogers, 10 id., 113; Richman v. Richman, 10 N. J. Law, 114; Daniel Neg. Inst., § 1215. And see Brehm v. Mayor, 104 N. Y., 192; 5 St. Rep., 661. The basis of the latter rule is given by Nelson, J., in Wenman v. Ins. Co., supra. “It is obvious,” said that learned judge, “ from the terms of the contract, an actual demand was contemplated by the parties before the note should become due.” It may be questioned whether the present •case comes within the reason of this rule. Did the parties here contemplate an actual demand before these notes should become due? Some of them are payable “ on demand,” others “ one day after date,” still others “ one day after demand.” These phrases -seem to have been used indiscriminately, and without any special meaning or technical purpose. There was clearly no intention to put the notes in circulation, or to give them any commercial status. There were simply acknowledgments of advances, and ■evidences of indebtedness therefor. There was no greater reason for an actual demand in the one case than in the other. If the notes in question had been made payable in six months or one year after demand, there would have been a suggestion at least of intended variation. But “ one day after demand ” probably meant no more to the plaintiff’s mother, under the circumstances disclosed, than “ one day after date,” or, for that matter, than “ I. 0. U.” This rule, too, may cause great inconvenience if extended -so as to permit the creditor, in all cases where the note is made payable shortly after demand, to choose his own time for its maturity, and thus to prevent the debtor from paying bis debt for an indefinite period. Unless delay is contemplated by the express terms of the contract, it would seem that a demand should at least be required within a reasonable time, and that the statute should commence to run at the expiration of the prescribed period thereafter. See Palmer v. Palmar, 36 Mich., 487, 494; Morrison v. Mullin, 34 Pa. St., 13; Lower v. Miller, 66 Iowa, 408; Bank v. Greene, 64 id., 445; Rhines v. Evans, 66 Pa. St., 195.

What, however, may safely be asserted in the present case is that, if the statute did not run as to those notes payable one day after demand, it was because an actual demand was contemplated before they should become due. How, such demand was neither pleaded nor proved. It is clear, therefore, either that these notes were outlawed, or that they have not matured. In either case they cannot be sustained as counterclaims against the plaintiff’s demand. The defendants met this view of the case by the contention that a demand was unnecessary for the purposes of an equitable set-off, in view of the plaintiff’s insolvency. There are several answers to this position. In the first place, an equitable set-off is not pleaded. The answer sets forth simply a common law counterclaim, and demands judgment affirmatively for the full amount of the notes. It was not until the plaintiff was about to rest upon the trial that the defendants stated that they asked no affirmative judgment, but merely claimed an offset. Even then no-attempt was made to amend the answer in this particular; and it was not until the case was closed, their motion for a direction denied, and the learned judge was about to charge the jury, that they asked to amend their answer so as to set up the plaintiff’s inability to pay the notes. This amendment was asked “to conform the answer to the proof in a single particular,” and there the case rested. It is quite evident that this-legal counterclaim was not thus turned into the equivalent of a complaint by the defendants against the plaintiff for an equitable set-off. But, if there had been a proper pleading and trial in equity, no case was made out for an equitable set-off. The insolvency of the plaintiff did not change the character of his obligation, nor could it vary the terms of his contract. Whether solvent or insolvent, his agreement was to pay one day after demand. The right of a solvent creditor to set-off his own unmatured obligation in the hands of his insolvent debtor against the latter’s matured obligation in his, the creditor’s, hands, rests upon such creditor’s privilege to waive the period of credit given him by his contract. Hughitt v. Hayes, 136 N. Y., 163; 49 St. Rep., 100. But it is one thing for him to waive his own right, and another to abridge his debtor’s right. This latter power has doubtless been asserted by courts of equity in some cases, but the question is not absolutely settled in the court of last resort-. It must be conceded that in that court the right of the solvent creditor to set-off his insolvent debtor’s unmatured debt against his, the creditor’s, matured obligation is, at least questionable. Richards v. La Tourette, 119 N. Y., 59; 28 St. Rep., 609. As was said by Peckham, J., in the latter case: “ Whether it be equitable or not, the power of a court might well be doubted to absolutely change a contract entered into by the parties, without the consent of the one who was to make the payment at the time .and in the manner prescribed by the contract.” See, also, Bradley v. Angel, 3 N. Y., 475.

This doubt, however, is solved in the present case by the defendants’ own attitude. Their whole case rests upon the contention that these notes have not matured. It is by holding the plaintiff strictly to that view of his obligation that they seek to-avoid the running of the statute. How, then, can they assert for one purpose that the demand was necessary, and for another that it was not? To save themselves from the effect of the statute, they say that the notes had not matured. That is a claim of strict law. Then, to effect the set-off, they say that the notes had matured; that is, that they were to be treated as though they had. That is a claim of equity. In one case they insist upon the period of maturity; in the other they insist upon abridging it. This latter, it is quite clear, cannot, under the circumstances, be done. The contract to which they have held the plaintiff for one purpose should not without his consent, be changed for another purpose.

But this is not the only difficulty with the defendants’ case. Their sole equity is the plaintiff’s inability to pay these notes. That inability is what they pleaded and proved. There was no-other or general insolvency. But this inability to pay these particular notes has existed throughout. Mrs. Smith knew it when she agreed to pay for the business. A bill for an equitable set-off' on this ground could, therefore, have been filed at any time after the consideration for the business had become due and payable. But no such set-off was sought during all these years. And then, too, there was at all times a perfect remedy at law, for Mrs. Smith had only to make a demand to effect the maturity of the notes. They would then have been the subj ect of a legal off-set or counterclaim. Her representatives cannot now found an equity upon her laches. The power of equitable set-off “ should,” as was said in Armstrong v. McKelvey, 104 N. Y., 185; 5 St. Rep., 611, “ be very cautiously exerted, and only in a case where the equity invoked is entirely clear and certain. It is never justified save where other remedies are impossible, and where the demand allowed is put beyond reasonable doubt.” Upon these principles we think the set-off was clearly inadmissible, and that the plaintiff was entitled to recover the agreed price of the business, without deduction.

Our conclusions upon the whole case are: First, that the plaintiff has established the sale averred in his complaint; second, that the indebtedness represented by the notes sought to be counterclaimed or set off was, as a matter of fact, forgiven by the decedent, and the notes canceled; third, that, even if these notes were not canceled, they are either outlawed or unmatured, and a legal counterclaim cannot be maintained them; fourth,, that an equitable set-off upon these notes has not been pleaded, nor, upon the facts, has a case of equitable set-off been made out. There was no error in the admission or rejection of evidence which could have prejudiced the defendants, and the judgment should therefore be affirmed.

Follett, J.,

concurs in result. Van Brunt, P. J., concurs on first and second grounds mentioned in opinion.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    In the Matter of the Application of Thomas F. Ryan, as Receiver of C. A. Wyatt & Co., as to reference of disputed claims.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Partnership— Succeeding firm, when not liable.
    _ W., doing business as W. &Co., hypothecated and converted goods consigned to him for sale, and used the proceeds, and thereafter formed a partnership with IT. as special partner under the same name, which firm never received any of the goods or proceeds, and never agreed to assume W.’s liabilities, or to guarantee the payment of his debts. Held, that the new firm was not liable for such goods.
    3. Same—Partner’s unauthorized act.
    In such case, the fact that after the copartnership was formed W. rendered a stock account to the consignor of the goods in question falsely indicating that the new firm had them in its possession, when they had been hypothecated by him, would not bind the firm nor estop it from showing the true facts.
    3. Same—Prospective partner of prospective firm — Acts do not
    BIND.
    A person intending to enter a firm as a special partner cannot bind such prospective firm to the payment of the old firm’s debts.
    4. Same—Payment by new firm of debt of the old.
    When acceptances were given by an old firm, which fell 'due after the formation of a new firm, and were paid by the latter, their payment is a payment pi'o tanto of the debt of the old firm, and not on account of the obligation of the new one.
    Appeal from an order confirming the report of a referee and overruling the claimant’s objections to said report The following is the opinion of the referee :
    W. N. Armstong, Referee.—For some time previous to November 1, 1888, C. A. Wyatt did business as a commission merchant under the name of 0. A. Wyatt & Go. He had, however, no partner. Rawitzer Bros, had from time to time consigned goods to him, the value of which, about November 1, 1888, was over $40,000. The agreement between the consignor and consignee was that the latter should sell the goods and return the proceeds to the consignor, deducting from the sales the amount of his commissions. He had no power to make any other disposition of them than to sell and return the proceeds. It appears, however, that, instead of selling all of the goods so consigned, he hypothecated them with the firm of Linde & Go., received advances upon them, and made no mention of this fact to the consignors. The sums obtained by hypothecation he used for his own purposes, and did not remit them to the consignors. This disposition of the goods was an act of conversion. An agent intrusted with property to sell is liable for conversion if he sells and violates the orders of his principal. Gomley v. Dazian, 114 N. Y., 161; 22 St. Rep., 813, citing Syeds v. Hay, 4 Term R., 260, where it is said that “ it is conversion for one who is intrusted with the goods of another to put them into the hands of a third person, contrary to orders.” Also, Láverty v. Snethen, 68 N. Y., 522. Rawitzer Bros, neither authorized this disposition of the goods nor confirmed his acts when they were informed of them. On November 1, 1888, Wyatt formed a partnership with Newhall, the latter becoming under the statute a special partner with $50,000 capital, and the firm name was C. A. Wyatt & Co. It continued the business of commission merchants as carried on by C. A. Wyatt until February, 1889, when it failed, and Wyatt disappeared. Rawitzer Bros, continued to consign goods to the new firm in the same manner as they had consigned to Wyatt before November 1, 1888, when Wyatt did business under the name of 0. A. Wyatt & Co. A receiver having been appointed of the assets of C. A. Wyatt & Co., Rawitzer Bros, present a claim of $62,000 against the firm, which is disputed both by the receiver on behalf of the other creditors and by the special partner, Newhall, on the ground that the claim of Rawitzer Bros, is only valid to a large extent against C. A. Wyatt individually, and that the firm of C. A. Wyatt & Co. cannot be held responsible for it. It is claimed by Rawitzer Bros, that the new firm of C. A. Wyatt & Co. assumed to pay the obligations of Wyatt contracted by him before November 1st The receiver, on the other hand, claims that no such assumption was ever made, either in fact or in law.
    In the month of September previous to the formation of the new firm, Mr. Louis Rawitzer testifies that he saw Mr. Newhall, and in several conversations the latter informed him that he was about to join the firm of C. A. Wyatt & Co. with $50,000 capital, and that he, in reply to a statement of Rawitzer that his firm had large quantities of goods in Wyatt’s hands, replied that all would be quite safe; that all was straight; they should go right along, and not .lose anything; that there was a great deal of money back of the concern; that the new concern would take the old firm’s business, in the same way in which the old firm had been doing the business,—take the accounts, the merchandise and everything; that upon the further statement of Mr. Rawitzer that his firm had consigned goods to Wyatt amounting in value to $40,000 or $50,000, Newhall replied that this would he taken care of. In addition to this evidence, it appears that Wyatt & Co., the new firm, rendered an account to Rawitzer Bros, on Dec. 31, 1888, in which the goods consigned to Wyatt previous to November 1st appeared as goods then on hand. Neither Rawitzer Bros., nor, so far as the testimony shows, Newhall, knew at the time of this conversation in September that Wyatt had converted the goods consigned to him; nor would this conversation have taken place if either of them had been aware of Wyatt’s acts. The conversation assumed that the goods consigned by Rawitzer were properly taken care of by Wyatt, and it referred generally to what the course of business would be under the new firm. At that time the new firm had not been formed. Newhall could not bind it in any way as a firm. If the firm had then been formed, Newhall, as a special partner, could not transact any business on account of the firm, or be employed to transact business as an agent, attorney or otherwise. Section 17, Chap. 414, Laws of 1857. The promise which the consignors now claim is binding on the new firm was a promise by a person proposing to become thereafter a special partner in a firm that the firm would, when organized, assume the debts and obligations of a person who proposed to become the general partner of the firm. Such a promise would not bind the firm, as there was no authority to make it; and none could be given, because the firm did not exist. If it was a valid obligation, it was in the nature of a guaranty by Newhall that the new firm would assume the obligations of Wyatt, and such a promise is required to be in writing, and no writing to that effect exists. As Wyatt had already converted Rawitzers’ goods, the promise, if made, was in legal effect an agreement that the new firm would pay to Rawitzers the value of the goods converted by Wyatt. If the firm had been in existence such a promise, made by a general partner, would not be binding on the firm, as it would not be within the scope of the partnership business, unless a sufficient consideration appeared. It is not necessary to consider the exact nature of the agreement between Rawitzer and Newhall in September, because, if one was made, as claimed by Rawitzer, it was void for want of an instrument in writing. Both parties were in ignorance of the facts as they existed at the time of the conversations, and both parties evidently assumed a condition of things which did not exist.
    It is also claimed by Rawitzer Bros, that the rendering of an account by the new firm in December, 1888, in which the goods consigned to Wyatt, and converted by him before the new firm existed, were declared to be on hand, was in fact an agreement by the new firm to assume the payment of Wyatt’s obligations. This account (Exhibit No. 1) does not, in words, state that the firm agreed to pay these obligations. It is a statement that Wyatt & Co. are in the possession of the goods, and hold them for the account of the consignors. As Wyatt was the only general partner, it is to be presumed that he directed it to be made out and sent. It did not state the truth, because not only the goods consigned to him individually had been hypothecated, but those consigned to the new firm had been disposed of in the same way. He certainly could not bind the firm to assume the payment of the value of goods which he had individually converted. It was not within the scope of the partnership business. There is no proof, or offer of proof, that Newhall, as special partner, knew of the rendering of this account. If he had been a general partner, some presumption might possibly arise that he had knowledge of the act. But no such presumption would arise in the case of a special partner, who was excluded by law from any active interest in the business. Nor can the account so rendered by the firm be construed into a guaranty of Wyatt’s individual obligations. I am, therefore, of the opinion that the claim of Eawitzer Bros, should be disallowed, so far as it included the value of the goods consigned to Wyatt before November 1, 1888. The goods consigned to the new firm were converted by them to their own use. These were sent for sale, and the proceeds were to be remitted, less commissions and other expenses. They have not been accounted for. The firm failed to keep its contract with the consignor. A payment of $12,500 was made by them, but it does not appear whether it was in payment of consigned goods or in payment of the overcoatings. There is no presumption that it was made for the consigned goods. If it appeared that it was, the firm would then be entitled to commissions on the sales. As it does not so appear, and it does appear that the goods were illegally hypothecated, and the firm has failed to keep its agreement to sell and remit for the goods when sold, it cannot be entitled to .any deduction for commissions. Gregory v. Mach, 3 Hill, 380. There is no evidence which shows from what source the $12,500 paid to Eawitzer Bros, was derived. If it was received in any way from the goods consigned to Wyatt individually before November 1, 1888, a trust might arise which would bring the new firm to account for it as property or assets of Wyatt individually; but, as this does not appear, it is presumed that the money so paid was a part of the assets of the firm of Wyatt & Co.
    Counsel for the receiver claim that the value of the goods which are charged to him by Eawitzer Bros, is to be fixed by the prices which they brought at auction when sold under pledge. This is not the rule in fixing damages. Moreover, Wyatt & Co. violated their contract in disposing of the goods so that they were sold at auction. They were consigned with limitation as to price. If Wyatt & Co. believed that the prices were excessive, they should have notified their consignors. Neither they nor their legal representative, the receiver, can now claim that the consignors are entitled to a less sum than the prices fixed because their consignors violated their contract.

      Horwitz & Hershfield (Otto Horwitz, of counsel), for app’lts; Durnin & Hendricks, for resp’t Ryan; Kellogg, Rose & Smith, for resp’t Newhall.
   Barrett, J.

But little need be added to the opinion of the learned referee in this matter. Upon the main question his findings of fact are justified by the evidence, and his conclusions of law are properly deducible from the facts so found. We think it ■clear that the claim made by Eawitzer & Bros, against the special partnership is not sustained. A discussion of the abstract question when, and under what circumstances, a new firm organized as "the successor of an existing firm will be held liable for the debts of its predecessor would be quite unprofitable; for upon the facts there is no basis for the application of any known rule of law under which the present claim could possibly be sustained. The referee has found that neither the new firm nor the new partner ever agreed to assume the liabilities of the old, or to guaranty the payment of its debts; that the goods which the claimants had con. signed to the old firm never came into the possession of the new; that such goods were hypothecated by the old firm, and thus converted ; and that none of the moneys which were received by the old firm upon such hypothecation ever came into the possession of the new. These facts are conclusive against the present claim, in any view of the law. The claimants rely mainly upon the fact that, after, the formation of the new firm, a stock account was rendered to them, indicating the possession by the new firm of the very goods which had been previously hypothecated. This, however, was nothing more than a false and unauthorized statement made by the general partner without the knowledge of the special partner. The firm was certainly not bound thereby. Nor was it estopped from showing the real fact, which was that the goods were not in its possession, and never had been. Some loose declarations of the special partner, Mr. Newhall, made prior to the formation of the new firm, were also given in evidence, but they were far from constituting a contract or agreement, even individually, to guaranty or become responsible for the debts of the old firm. They could have no binding effect upon the new firm, which was then only in contemplation. Mr. Newhall could not then contract on its behalf, and he did not profess to do so. Upon the main question the order is clearly right, and should be affirmed.

We think, however, that the learned referee erred in deciding that the new firm paid to the claimants the sum of $12,500, for which it should have credit, Without going over the figures and testimony in extenso, we think it apparent that the learned referee was misled by the fact that five acceptances which were given by the old firm, but which fell due after the formation of the hew, were paid by the new. These acceptances were the obligations of the old firm, and not of the new. Their payment, therefore, was a payment pro tanto of the debt of the old firm, and was not a payment made by the new on account of its own obligations and conceded indebtedness. We think Mr. Horwitz has clearly and ably demonstrated this in his fourth point. But we do not agree with Mr. Horwitz’ analysis of the referee’s twenty-fifth finding, and we find nothing in the evidence nor in the finding itself to justify his criticism thereupon. The report should be modified by finding that Eawitzer & Bros, have proved their claim against the assets in the hands of the receiver to the amount of $28,229.41, and, as so modified, it should be affirmed, without costs.

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


text:
    In the Matter of the Application of Thomas F. Ryan, as Receiver of C. A. Wyatt & Co., for reference of disputed claims.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.).

    New trial—Conditions.
    Upon the petition of the receiver of a firm, .disputed claims were referred, disallowed by the referee after a regular trial, and the repoit confirmed. A motion for a new trial was made, pending an appeal, on the ground of newly discovered evidence, and granted, on the condition that the receiver he reimbursed for the amount paid by him as referee's fees, and a partner who was not, in any case, liable on the claim, be paid costs and counsel fee. Held, that the condition was proper.
    Appeal by the claimants, Rawitzer & Brothers, from an order granting a motion made by them for a rehearing of a claim presented by them to the receiver, upon the payment of certain costs.

      Horwitz & Hershfield, for app’lts; Durnin & Hendricks, for resp’t Ryan; Kellogg, Rose & Smith, for resp’t Newhall.
   Barrett, J.

The motion for a new trial was upon the ground of newly discovered evidence. One would suppose from the elaborate discussion in the briefs of counsel as to the effect of the newly discovered evidence that the learned judge at special term had denied the motion. We find, however, that the motion was granted, and that the appellants’ present complaint relates solely to the terms imposed upon them. The appellants seem to think that their motion should have been granted unconditionally. The propriety of the terms in detail is not discussed, and their last point is that the order should simply be modified so as to relieve them from those terms. We think the terms imposed were just and reasonable. This proceeding had all the attributes of an equitable action. There was a regular trial before a referee, to whom the matter was sent to hear and determine. After such full trial the referee’s report was against the claimants, and that report was confirmed. The claimants then appealed from the order of confirmation, and while that appeal was pending and undetermined they made this motion. It is obvious that a new trial should not be granted under such circumstances, except upon reasonable indemnity to the party who, without fault, is deprived of the fruits of success. Even in cases where a new trial is granted because the decision or verdict is against the weight of evidence, it is usually upon payment of the costs of the former trial. Benedict v. Johnson, 2 Lans., 97; Kennedy v. Harlem Railroad Co., 3 Duer, 659; Overing v. Russell, 28 How., 151.

Here there were two parties who were before the court substantially as defendants. One was the special partner, Hewhall, and the other was the receiver, Ryan. They were both entitled to costs, but the court awarded no costs to the receiver. He was simply reimbursed -for a single item of outlay, namely, the referee’s fees upon the former trial. That this item was somewhat large resulted from the appellants’ vigorous but unsuccessful efforts to sustain their claim against the estate in the receiver’s hands. The respondents are surely not responsible for the amount of this disbursement, and it would have been an extraordinary exercise of discretion to set aside what was in effect a judgment, and thus favor the claimants with a new trial, without reimbursing the estate even for the disbursements of its successful defense. The court allowed the other party, Hewhall, costs of the motion and a counsel fee of $250. The sum thus awarded was entirely reasonable. In fact, it was plainly but a partial indemnity for the expense to which Mr. Hewhall had been put by the previous proceeedings. Ho costs were awarded in terms, except the costs of the motion, nor were the other disbursements of the proceedings, such as stenographers’ fees, allowed to either party. It comes to this: that one party, entitled to indemnity, was allowed the moderate sum of $260, and the other party, equally entitled to indemnity, was allowed but a single disbursement. There was in this no abuse of discretion, but a reasonable exercise thereof. The learned judge treated the proceedings as analogous to an action in equity, and doubtless intended to allow Mr. Newhall a sum which would in some measure represent the costs of the trial of such an action, with possibly a small extra allowance. The order should be affirmed, with ten dollars costs and the usual disbursements.

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


text:
    Court of Appeals.
    Filed June 6, 1893.
    Wm. B. Mann, Resp’t, v. The City of Brooklyn, App’lt.

      James W. Ridgvoay, for resp’t; Almet F. Jenlcs and Horace Graves, for app’lt.
   Judgment affirmed, with costs, on opinion below. Ail concur, except Finch and absent.

Affirming 45 St. Rep., 14.


text:
    Fred’k B. Gurney, App’lt, v. The Grand Trunk R. Co. of Canada, Resp’t.

      Benj. B. Foster, for app’lt; A. B. Scott, for resp’t.
   Judgment affirmed on opinion below, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 37 St. Rep., 557.


text:
    Chas. J. Hartman, Resp’t, v. The Morning Journal Association, App’lt.

      Louis J. Grant, for resp’t; Henry Yonge, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 181.


text:
    Fanny Hyman, App’lt, v. Betti Friedman, Resp’t.

      Chas. W. Brooke, for app’lt; Morris Goodhart, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St. Rep., 636.


text:
    Sarah Cain, Guardian, Resp’t, v. Rosa Flood, App’lt.

      James O’Neill, for resp’t; Chas. W. Brooke, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 38 St. Rep., 196.


text:
    The Hungerford Co., Resp’t, v. Clara Rosenstein, App’lt.

      Wm. B. Ellison, for resp’t; H. Aplington, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and' Gray, JJ., qTvQpyif"

Affirming 46 St. Rep., 195.


text:
    Richard E. Preusser et al., Resp’ts, v. James M. Stockton et al., App’lts.

      John Graham, for resp’ts; Thaddeus B. Kenneson, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 39 St. Rep., 89.


text:
    James Dougherty, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.

      D. P. Morehouse, for resp’t; Hamilton Harris, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St Rep., 154.


text:
    Eliza L. Hinschberger, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      W. G. Peckham, for resp’t; R. L. Maynard, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ. absent.

Affirming 44 St. Rep., 828.


text:
    Catharine Cook, Resp’t, v. The Long Island R. R. Co., App’lt.

      Arthur C. Palmer, for resp’t; Wm. J. Kelly, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 47 St. Rep., 200.


text:
    Ephraim D. Mowry, Resp’t, v. The Agricultural Ins. Co., Impl’d, App’lt.

      N. B. Smith, for resp’t; A. H. Sawyer, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St. Rep., 70.


text:
    Sarah F. Elmer, Resp’t, v. The Mutual Benefit Life Ass’n of America, App’lt.

      Austen G. Vox and John B. Pine, for resp’t; E. T. Lomtt, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 47 St. Rep., SB.


text:
    John C. Bundy, Resp’t, v. Henry J. Newton, App’lt.

      Fred’k E. Crane, for resp’t; E. II. Benn, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 47 St. Rep., 242.


text:
    George Wing, Resp’t, v. Annie L. Bliss, App’lt.

      Spencer Clinton, for resp’t; Wm. C. Greene, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 28 St. Rep., 198.


text:
    Loretta H. Randall, Resp’t, v. The National Ice Co. of New York, App’lt.

      Louis W. Pratt, for resp’t; G. H. Beckwith, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 787.


text:
    Ann McManus, Resp’t, v. Wm. H. Woolverton, Pres’t N. Y. Transfer Co., App’lt.

      Henry Schmitt, for resp’t; John L. Hill, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 47 St. Rep., 107.


text:
    Chas. W. N. Akberg, Resp’t, v. The John Kress Brewing Co., App’lt.

      J. Edward Swanstrom, for resp’t; Geo. P. Hotaling, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 47 St. Rep., 873.


text:
    Filed June 13, 1893.
    Elizabeth De Lancey, Resp’t, v. Henry Piepgras, Impl’d, App’lt.
   No papers.

Motion for reargument denied, with ten dollars costs.

See 51 St. Rep., 680.


text:
    Henry George Dunstan, Resp’t, v. Cecil Campbell Higgins, App’lt.
   No papers.

Motion for reargument denied on ground that the alleged defect in the authentication of the record was not sufficiently pointed out by objection at the trial.

See 51 St. Rep., 710.


text:
    Edward Myers, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

      Davies & Rapallo, for motion; Henry Schmitt, opposed.
   Motion to dismiss granted upon condition appellants pay to respondent full costs of appeal as upon argument to the court of appeals.

See 46 St. Rep., 196.


text:
    Filed June 20, 1893.
    The People ex rel. The St. Nicholas Ave. & C. T. R. R. Co., App’lt, v. Hugh J. Grant, Mayor, Resp’t.

      C. W. West, for app’lt; Chas. Blandly, for resp’t.
   Order affirmed, with costs, on opinion helow. All concur, except Finch, J. absent.

Affirming 50 St. Rep. 465.


text:
    Martha E. Clark, Resp’t, v. Frederick K. Clark, App’lt.

      07ms. If. Earle, for resp’t; E. Goimtrynian, for app’lt.
   Orders affirmed, with costs. All concur, except Finch, J., absent.

Affirming 52 St. Rep. 228.


text:
    Gottlob Gunther v. Rudolph Mayer et al., Resp’ts, Manning et al. App’lts.

      Thos. Allison, for resp’ts; P. Q. Eckerson and Frederic G. Dow, for app'lt app’lts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 51 St. Rep., 588.


text:
    Gerhard Wessels et al., App’lts, v. Gustavus Adolphus Boettcher, Resp’t.

      Esek Cowen, for app’lts; Payson Merrill and Jason Hinman, for resp’t.
   Order affirmed, with costs.. All concur, except Finch, J., absent.

Affirming 53 St. Rep., 313.


text:
    The People ex rel. The Oak Hill Cemetery Association, App’lt, v. Luther A. Pratt et al., Assessors, Resp’ts.

      Asa W. Russell, for app’lt; C. D. Kiehel, for resp’ts.
   Order affirmed on opinion below, with costs. All concur, except Finch, J., absent.

Affirming 50 St. Rep., 355.


text:
    The People, Resp’ts, v. The Long Island Savings Bank of Brooklyn, Resp’t; Samuel Hanna, Appl’t.

      S. W. Rosendale, att’y-gen’l, for resp’ts; John L. Hill, for resp’t bank; John A. Carney, for app’lt.
   Order affirmed, with costs. All concur, except Finch, J., absent.


text:
    George P. Rowell et al., App’lts, v. Joseph E. Janvrin, Resp’t.

      Edward Hassett, for app’lts; Dic7cinson W. Bicharás, for resp’t.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.

See 53 St. Rep., 312.


text:
    Peter De Lacy, App’lt, v. Albert J. Adams, Resp’t.

      Howe & Hummel, for app’lt; Joel M. Marx, for resp’t.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.

See 53 St. Rep., 509.


text:
    The Toronto General Trusts Co., Trustee, App’lt, v. The Chicago, Burlington & Quincy R. R. Co. et al., Resp’t.

      F. K. Pendleton, for app’lt; Elihu Root, for resp’t.
   Judgment affirmed on opinion helow in general term, with costs. All concur, except Finch, J., absent; Gray, J., not sitting, and Maynard, J., not voting.

Affirming 46 St. Rep., 52.


text:
    The Toronto General Trusts Co., App’lt, v. The Nat’l Bank of Commerce in N. Y., Impl’d, Resp’t.

      F. K. Pendleton, for app’lt; Frederic A. Ward, for resp’t.
   Affirmed on opinion in general term in case above. Same vote.

Affirming 46 St. Rep., 52.


text:
    Chas. P. Bowditch, Trustee, Resp’t, v. Florence Ayrault, by Guardian App’lt.

      Strang & Doty, for motion; John P. Bowman and John Rohrback, opposed.
   Motion to settle form of judgment: Ordered, that the distribution, so far as the funds now in the hands of the trustee are concerned, shall he made to all the parties in accordance with the views expressed in the opinion of Peckham, J. (138 N. Y., 222).

See 52 St. Rep., 330.


text:
    Thomas White, Resp’t, v. The City of Brooklyn, App’lt.
   No papers.

Motion to put cause on calendar denied on account of laches on the part of the plaintiff, ten dollars costs.


text:
    Filed June 27, 1893.
    Catharine A. C. G. Rehfeldt, Resp’t, v. The City of Brooklyn, App’lt.

      Chas. J. Patterson, for resp’t; Almet F. Jenks, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 46 St. Rep., 302.


text:
    Bridget McDonald, Adm’rx, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      Geo. F. Yeoman, for app’lt; Albert H. Harris, for resp’t.
   Judgment affirmed and judgment absolute for defendant on the stipulation, with costs. All concur, except Andrews, Oh. J., not voting; O’Brien, J., dissenting, and Finch, J., absent.

Affirming 45 St. Rep., 711.


text:
    Cassius H. Read, App’lt, v. Elizabeth Patterson et al., Resp’ts.
   No papers.

Motion for reargument denied; ten dollars costs.

See 45 St. Rep., 793.


text:
    Mary Ann Robinson (Henry Motet, Ex’r) v. Robert Govers, Ex’r, Resp’t.
   No papers.

Motion for reargument denied; ten dollars costs.

See 52 St. Rep., 925.


text:
    Abram Kerr et al., App’lts, v. Anna Dildine, Impl’d, Resp’t.
   No papers.

Motion to open default denied on the ground of inexcusable laches ten dollars costs.

See 38 St. Rep., 1005.


text:
    Filed June 30, 1893.
    The Hong Kong & Shanghai Banking Corporation, Resp’t, v. Joseph M. Emanuel, Impl’d, App’lt.

      Robert L. Redfield, for resp’t; Sol. Kohn, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 44 St. Rep., 454.


text:
    Miriam E. Garter, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      E. M. & F. M. Ashley, for resp’t; Chas. A. Pooley, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 46 St. Rep., 964.


text:
    Prosper Monnet et al., Resp’ts, v. Henry Merz, Suv’r, App’lt.

      Wm. Wallace, for resp’ts; Wm. Man, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

46 St. Rep., 251.


text:
    Samuel Wiener, Resp’t, v. The New York El. R. R. Co. et al., App’lts.

      Henry A. Forster, for resp’t; R. L. Maynard, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 42 St. Rep., 785.


text:
    Bridget McAvoy, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Filkins & Coe, for resp’t; Chas. A. Pooley, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 46 St. Rep., 964.


text:
    Lucinda Woodard, Resp’t, v. William J. Foster, App'lt.

      Jerome Squires, for resp't; Geo. B. Jones, for app'lt.
   Judgment affirmed and judgment absolute ordered for the plaintiff on stipulation, with costs, on opinion at general term. All concur, except Finch, J., absent.

Affirming 45 St. Rep., 77.


text:
    Charles F. Gall, App’lt, v. Amelia Gall, Admirx, et al., Resp’ts.

      Waldorf H. Phillips, for app'lt; A. Simis, Jr., for resp’ts.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 46 St. Rep., 806.


text:
    Ida M. Cummings, Resp't, v. Mary A. Line, App’lt.

      L. M. Norton, for resp’t; P. Chamberlain, Jr., for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 45 St. Rep., 56.


text:
    The Brooklyn Trust Co., Resp’t, v. Henry P. Toler, App’lt.

      Wm. N. Dykman, for resp’t; Royal S. Crane, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 47 St. Rep., 420.


text:
    Supreme Court—General Term—First Department.
    Filed May 12, 1893.
    Ricot J. Dovale v. Bernard L. Ackerman, Sr., et al.

   Having consulted with Messrs. Justices Bartlett and Barrett, we think this application should be granted.


text:
    Matter of the East River Bridge Co.
   Reserving all questions as to the validity and sufficiency of the statute until the coming in of the report of the commissioners to be appointed upon this application, the court grants the motion.


author: Per Curiam.

text:
    The Yellow Pine Co., Resp’t, v. Thomas Kane, App’lt.
   Per Curiam.

The order must be affirmed, with ten dollars costs and disbursements.


text:
    The People, Resp’ts, v. Joseph Kuntz, App’lt.
   Conviction affirmed.


text:
    Rosalie E. Forbes, App’lt, v. John E. Forbes, Resp’t.
   Order affirmed, without costs.


text:
    John Cahill, Ex’r, v. Mary A. Russell et al.

   Motion granted.


text:
    Alexander McP. Edmond, App’lt, v. The Alexander Smith & Son’s Carpet Co., Resp’t.
   Motion granted by default.


text:
    Christian F. Schramme, App’lt, v. Edward S. Farrow, Impl’d, Resp’t.
   Per Curiam.

We think the excuse presented by plaintiff for not bringing this case to trial was sufficient to justify the denial of the motion upon plaint? ill’s placing the case upon the calendar, and paying ten dollars costs of motion. The order should, therefore, be modified by providing that upon payment by the plaintiff of ten dollars costs of motion in the court below within ten days after the service of the order on this appeal, and noticing this case, and placing the same upon the calendar for the next circuit court, the motion to dismiss is denied; that, unless such costs are paid, and the case noticed and placed upon the calendar, as aforesaid, then the order is affirmed; such modification to be without costs of this appeal.


text:
    Catharine Faure et al,, App’lts, v. The American Society for Prevention of Cruelty to Animals, Resp’t. Catharine Faure et al., App’lts, v. Edwin Bergh, Jr., et al, Resp’ts.
   Per Curiam.

The judgment in each case, sustaining the demurrer and dis-of the plaintiffs’ complaint, should be affirmed, with costs, the plaintiffs having appealed and put the defendants to the labor and expense of preparing their points; but the orders granting extra allowances should be modified by-reducing such allowances to $250 in each case.


text:
    The Holland Trust Co., App’lt, v. Edward S. Farrow, Impl’d, Resp’t.
   Per Curiam.

We think the excuse presented by the plaintiff for not bringing this case to trial was sufficient to justify the denial of the motion upon plaintiff’s placing the case upon the calendar and paying ten dollars costs of motion. The order should, therefore, be modified by providing that upon the payment by the plaintiff of ten dollars costs of motion in the court below with, in ten days after the service of the order on the appeal, and noticing this case, and placing the same upon the calendar for the next circuit court, the motion to dismiss is denied; that, unless such costs are paid, and the-case noticed and placed upon the calandar, as aforesaid, then the order is affirmed; such modification to be without costs of this appeal.


text:
    General Term—Second Department.
    Filed July 28, 1893.
    Harriet A. Burtis v. Nathaniel B. Valentine, Ex’r.
   Appeal withdrawn.


text:
    Lavina Burnett v. Levi Burnett.
   Judgment affirmed according to stipulation. Barnard, P. J., not sitting.


text:
    William Ziehen, Resp’t, v. David J. Smith et al., App’lts.
   Judgment affirmed, with costs, for non-submission of papers according to stipulation.


text:
    Margaret McMahon v. The Citizens’ Street Railway Co.
   Appeal withdrawn.


text:
      In the Matter of the Estate of Daniel Lent, Deceased.
   Order agreed upon by parties.


author: Dykman, J.

text:
    Charles Erickson, Resp’t, v. Twenty-third Street Railway Co., App’lt.
    Appeal from judgment in favor of plaintiff and from order denying motion for a new trial.

      Edmund Randolph Robinson, for app’lt; J. Edward, Swanstrom, for resp’t.
   Dykman, J.

The is an appeal from a judgment in favor of the plaintiff against the defendant, and from an order denying a motion for a new trial upon the minutes of the court.

The action was for the recovery of damages.for injuries sustained by reason of the carelessness of one of the drivers of the defendant’s cars, and the insistance of the defendant upon this appeal is that the evidence disclosed the contributory negligence of the plaintiff so plainly that it became a question of law for the determination of the trial judge, and that it was erroneously submitted to the jury.

Upon consideration of all the facts and circumstances surrounding the accident, we find ourselues unable to adopt that view.

We do not think the evidence of the contributory^ negligence was so plain that reasonable men might not reach adverse conclusions upon the subject.

Such being our view, we cannot interfere with the verdict, and the judgment and order should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


author: Pratt, J.

text:
    James P. Niemann. Re p’t, v. George B. Collyer, App'lt.
    Appeal from judgment in favor of plaintiff in an action for professional services.

      Dennis McMahon, for app’lt; Jas P. Niemann, resp’t in person.
   Pratt, J.

We do not find any valid exceptions. Only a question of fact is involved, viz.: the value of plaintiff’s services. The referee has large experience, and his findings are sustained by the evidence.

The plaintiff was called into important unfinished litigations to succeed very distinguished counsel who iiad failed to satisfy the client. Under such circumstances it cannot be successfully contended that the matters were trivial and not worthy of compensation.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Robert B. Atterbury et al., Resp’ts, v. Martin Rourke, App’lt.
    Apoeal from judgment in favor of plaintiff, and from order denying motion for new trial.

      Frank D. Shaw and J. Alex. Stitt, for app’lt; Henry H. Bowman, for resp’ts.
   Dykman, J.

This is an action for the recovery of damages resulting from a breach of warrantee in the sale of 100 tons of Manchester gunny bagging. The specific breach charged had relation to the shrinkage in the weight, the warrantee being that there should not be more than one per cent, shrinkage, and tire charge being that there was much more.

The cause was tried at the circuit, and a verdict was rendered for the plaintiff for §375.

The defendant Martin Rourke has appealed from the judgment and the order denying the motion for a new trial upon the minutes of the court.

An examination of the record discloses no error. The case was submitted to the jury by a very careful charge, and the verdict is well supported by the evidence.

The judgment and order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Francis E. Walbridge et al., Resp’ts, v. The J. Dewing Publishing Company, App’lt.
    Appeal from judgment in favor of plaintiff, from orders denying motion for new trial and denying motion for reference.

      Saunders, Webb & Worcester, for app’lt; Jos. A. Burr, Jr., for resp’ts.
   Dykman, J.

This action was brought for the recovery of damages sustained by the plaintiff for a breach of contract entered into between him and the defendant.

The cause was tried at the circuit before a jury, and a verdict was rendered in favor of the plaintiff for $3,586.41.

The record presents four appeals by the defendant.

One from the judgment entered upon the verdict: one from the order denying a motion for a new trial upon the minutes of the court; one from an order denying a motion to postpone the trial of the action, and one from an order refusing to stay the entry of judgment and direct a reference of the equitable defense set up in the answer.

The appeals are all destitute of merit.

There is nothing in the answer that bears the faintest resemblance to an equitable defense, and in relation to the motion to postpone the trial the judge evidently looked upon it as an after thought, inasmuch as the counsel for the defendant had answered ready upon the call of the day calendar for several days previous.

In relation to the other two appeals it is sufficient to say that the verdict is well supported by the evidence, and the record discloses no errors.

The judgment and order denying the motion for a new trial should be affirmed, with costs, and both of the other orders should be affirmed, with ten dollars costs and disbursements in each case.

Barnard, P. J., and Pratt, J., concur.


author: Herrick, J.

text:
    General Term—Third Department.
    Filed July 8, 1893.
    Michael P. Conboy, Resp’t, v. Mary Cunningham, App’lt.
    Appeal from interlocutory judgment, entered on the report of a referee in action for partition.

      Henry A. Strong, for app’lt; Doyle & Fitts (Charles F. Doyle, of counsel), for resp’t.
   Herrick, J.

The alleged errors sought to be reviewed this appeal are those claimed to have been made by the referee in making and stating the accounts between the parties for rents collected and commissions charged for their collection, and for moneys disbursed.

The action is for a partition of land, of which the parties were tenants in common. The alleged errors are errors of fact.

The evidence as to rents collected and moneys paid out is not entirely satisfactory, but the referee had the witnesses before him in person and heard their statements as to the manner in which they made out their accounts.

I see no reason for believing that we could reach a conclusion any more satisfactory than the one at which he has arrived.

Judgment should be affirmed, with the costs of this appeal to be deducted from the share of the appellant in the proceeds of sale.

Mayham, P. J., and Putnam, J., concur.


text:
    John Farley and Emma Farley, Resp’ts, v. The City of Amsterdam, App’lt.
    Appeal from judgment in favor of plaintiffs for damages by reason of change of grade of street, and vacating a special assessment for part of the expenses of regrading the street.

      Edward J. Maxwell, for app’lt; Westbrook & Borst (Z. S. Westbrook, of counsel), for resp’ts.
   Herrick, J.

The case of Folmsbee v. The City of Amsterdam, 66 Hun, 214; 49 St. Rep., 51, it seems to me is decisive of this, and that there is no occasion for an opinion.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    General Term—Fifth Department.
    Filed June 23, 1893.
    In the Matter of the Assignment of William Sutliffe to Hadley Jones for the benefit of creditors.
   Order of the special county judge of Cayuga county appealed from reversed, with costs payable out of the fund, and the motion granted. Opinion by Macomber, J.

       Not for publication.


text:
    William P. Mannion, App’lt, v. Jesse Barber, Resp’t.
   Judgment appealed from affirmed.


text:
    The Railroad Equipment Company, Resp’t, v. Michael S. Blair, Receiver of the Rochester, Hornellsville & Lackawanna Railroad Co., App’lt.
   Judgment appealed from affirmed.


text:
    Annie E. Lick, Resp’t, v. The Town of Moravia, App’lt.
   Judgment and order appealed from affirmed.


text:
    Eliza Hiltzinger, Resp’t, v. Charles T. Kalb, App’lt.
   Judgment and order appealed from affirmed.


text:
    Celinda A. Fulton, Resp’t, v. George Macnoe, App’lt.
   Interlocutory judgment appealed from affirmed on authority of Goetz v. Ballou, 64 Hun, 490; 46 St. Rep., 421. Haight, J., not voting.


text:
    The People ex rel. Frank Allen, Resp’t, v. Alfred H. Neal, Superintendent of Erie County Penitentiary, App’lt.
   Order of the county judge of Erie county appealed from reversed and relator remanded to the custody of the superintendent of the Erie County Penitentiary. Laws of 1892, chap. 401, § 35; Code Civ. Pro., § 2088.


text:
    The People, Resp’ts, v. Israel Adler, App’lt.
   Judgment and conviction of the Monroe court of sessions appealed from affirmed and case remitted to that court to proceed thereon. Dwight, P. J., not voting.


text:
    Etta L. Alexander v. The Rochester City & Brighton Railroad Co.
   Motion for new trial denied and judgment ordered for the defendant upon the non-suit.


text:
    In the Matter of the Widening of Belmont Park.
   Order and report appealed from affirmed, with costs.


text:
    Abigail Depuy, App'lt, v. Jane Cook, Resp’t.
   Judgment appealed from reversed on the opinion of Rheinhardt v. Fritzsehe. decided at the present term. Bradley, J., not voting.


text:
    David E. Barrows, App'lt, v. Henry Webster, Resp’t.
   Judgment affirmed on the opinion written upon a former hearing. 50 St. Rep., 353.


text:
    Marion D. Fenner, App’lt, v. L. Hayden Humphrey et al., Resp’ts.
   Order of the Wyoming county court appealed from affirmed, with ten dollars costs and disbursements.


text:
    Richard Gibson v. Henry J. Gibson et al.

   Former decision amended so as to direct that the costs and disbursements be paid out of the income of the fund provided for in the fourth item of the last will and testament of Henry B. Gibson, deceased.


text:
    Mary Moore v. The Citizens’ Mutual Life Association
   Motion to dismiss appeal denied.


text:
    Margaret A. Root, Resp’t, v. John R. Strong, Executor, App’lt.
   Motion to dismiss appeal on account of the non-service of printed papers granted on default.


text:
    Thomas O. Swanson, Resp’t, v. Charles P. Hinton, App’lts.
   Motion to dismiss appeal on account of the non-service of printed papers granted on default.


text:
    Frank D. Wright, Resp’t, v. George Martin et al., App’lts.
   Motion to dismiss appeal and for judgment on account of non- service of printed papers denied.


text:
    Valentine Fromm v. Daniel Ide.
   Motion for leave to appeal to the court of appeals granted.


author: Bischoff, J.

text:
    New York Common Pleas—General Term.
    Filed June 5, 1893.
    Julia Pfeffer, Adm’rx, Resp’t, v. Minnie Ahlering, App’lt.
   Bischoff, J.

On the stipulation of counsel for the respective parties to that effect, and herewith filed, the judgment of April 18, 1892, is reduced three thousand three hundred dollars (§3,300), damages and costs, and as reduced it is affirmed, without costs of this appeal to either party as against the other.

Bookstaver and Pryor, JJ., concur.


text:
    Filed June 19, 1893.
    Henry Whittemore, Resp’t, v. Jas. T. White et al., App’lts.
   Motion for re-argument. Re-argument granted; stay meanwhile.


text:
    Marcellus Hartley, Resp’t, v. Arthur L. Meyer, App’lt.
   Motion for reargument. Re-argument denied, wilh ten dollars costs.


text:
    Myer Hecht, Resp’t, v. Edward Brandus, App’lt.
   Per Curiam.—Motion denied, with ten dollars costs.


text:
    Filed August 9, 1893.
    The People v. Emma King, Principal, and Jacob Klinger, Surety.
   Motion to vacate judgment entered on a forfeited recognizance. Motion granted.


text:
    John V. Sweeney, App'lt, v. Ellen Redmond, Resp’t.
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the first judicial district, rendered upon a trial before the justice thereof, without a jury.
    Action for services as a physician and surgeon.

      T. E. Tomlinson, for app’lt; John Callahan, for resp’t.
   Per Curiam.

The questions presented for solution on this appeal are only those involving facts in respect whereof there is a conflict of evidence. Careful consideration of the evidence satisfies us that the decision of the justice was in all respects correct, and, therefore, the judgment should be affirmed, with costs.

Bischoee and Giegerich, JJ., concur.


text:
    The Health Department of the City of New York, Resp’t, v. Howard D. Hamm, App’lt.
    Appeal from a judgment for plaintiff, recovered in the district court in the city of New York for the third judicial-district. Action to recover the penalty of ten dollars per day, provided for by § 665 of the consolidation act, chapter 410, Laws 1882, and incurred by defendant for having erected a building in violation of tire plans and specifications as approved by the health department in the city of New York, pursuant to authority conferred by title 7, §§ 660, etc., of the act referred to. See also chapter 275, Laws 1892, giving to the department of buildings power to prosecute for such violations.

      Eugene Otterbourg, for resp’t; Early, for app’lt.
   Bischoff, J.

The evidence is, in our opinion, conclusive that defendant’s buildings were not constructed, in respect to light, air, ventilation and drainage, agreeably to the plans and specifications approved by the health department in the city of Hew York, pursuant to the authority vested in it at the time by the consolidation act. Laws 1882, chapter 410, § 661. In fact, so far as the cellar arches and supporting columns were concerned, this was conceded by defendant, whose only excuse for having deviated from the approved plan was that it was permitted by an inspector of the health department, but whose authority to grant such permission, t-hus nullifying the resolution of the board, was not even attempted to be sustained by defendant. It was also admitted by defendant that the sky-light over the main stairs, which the plan required, was not provided for.

The judgment should be affirmed, with costs.

Giegerich, J., concurs.


text:
    New York Superior Court—General Term.
    Filed July 3, 1893.
    George Hixon, Resp’t, v. Aquilino Zuricaldi and George T. McKinney, App’lts.
    Appeal from judgment, entered upon a verdict of a jury, given by di rection of trial judge, and from an order denying defendants’ motion for a new trial.

      Olcott, Mestre & Gonzales (James L. Bishop, of counsel), for app’lts ; Arnoux, Ritch & Woodford (William H. Arnoux, of counsel), for resp’ts.
   Per Curiam.

Judgment and order appealed from are affirmed, with costs, on opinion filed by the learned court below.

Freedman and Gildersleeve, JJ., concur.

Affirming 53 St. Rep., 66.


text:
    Thomas Conville, App’lt, v. Sheridan Shook et al., Resp’ts.
    Appeal from judgment dismissing plaintiff’s complaint, entered upon the report of a referee.

      John McMahon (Ira Shafer, of counsel), for app’lt; A. J. Dittenhoefer and Gratz Nathan, for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion filed by the referee.

Freedman and Gildbrsleeye, JJ , concur.


text:
    Jacob Rothschild, App’lt, v. Alfred Zucker, Resp’t.
    Appeal by plaintiff from order directing bill of particulars.

      Gustavus W. Rawson, for app'lt; William Sulzer and John B. Green, for resp’t.
   Per Curiam.

The order should be affirmed, with ten dollars costs disbursements.

Freedman and Gildersleeve, JJ., concur.


author: Fitzsimons, J.

text:
    City Court of New York—General Term.
    Filed June 19, 1893.
    Ramon V. Williams, Resp’t, v. The Britannica Publishing Company, App'lt.
   Fitzsimons, J.

Finding no meritorious objection to the judgment herein, it is affirmed, with costs.

Van Wyck, J., concurs.


text:
    City Court of Brooklyn—General Term.
    Filed June 26, 1893.
    Jennie Kelly, App’lt, v. John Loughran, Resp’t.
   Per Curiam.

We have carefully examined the authorities cited by the -counsel for the appellant, and find that they are not in point. As a new question, we, without hesitation, hold that the complaint does not state a cause of action.

Judgment affirmed, with costs.

Clement, Ch. J., and Osborne, J., concur.


author: Follett, J.

text:
    The Mayor, etc., of the City of New York, Resp’t, v. John Brady et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Negligence—Indemnity.
    Where a _ city, after having paid a judgment recovered against it for personal injuries caused by falling over a pipe left in a street where work was being done by a contractor, sues for indemnity on the bond of such contractor, it must be affirmatively shown that the contractor was primarily liable for the damage, unless some provision in the contract renders such proof unnecessary or the issue was tried in the first action.
    U. Same—Evidence.
    Where indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, is primarily liable, the judgment is evidence in the action brought ■ for indemnity that the plaintiff in the second action was liable for the damages; and, when notice has been given to defend, of the amount of the damages arising from the injury; but it does not establish which of the wrongdoers is primarily liable.
    3. Same—Contract with municipal cokpobation.
    A contract between a city and contractors provided that the latter would indemnify and save harmless the city from all suits and actions of every name and description brought against it, and all damages to which it might be put by reason of injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or any act or omission on the part of the contractors. Held, that by the terms of the contract the contractors and their sureties were not liable simply because a judgment had been obtained against the city.
    4. Same.
    In such case, the fact that the city made payments to the contractors after the claim for injuries was presented is no defense to the action on the contractors’ bond, where the contract with the city provided that so much of the money due the contractors as should be considered necessary by the city might be retained at its option until all suits or claims for damages should be settled.
    Appeal from a judgment entered on a verdict directed by the court.
    August 31, 1883, Joseph D. Nutt and Patrick Kearns, who were partners under the firm name of Nutt & Kearns, entered into a contract- in writing with the mayor, aldermen and commonalty of the city of New York, whereby they agreed, in consideration of certain payments therein provided for, to construct a sewer in Ninth avenue, between Eighty-first and Eighty-third streets in the city of New York, and to complete the same in a good and substantial manner. The contract contained the following provision : “ That during the performance of the said work he (they) will place proper guards upon and around the same for the prevention of accident, and at night will put up and keep suitable and sufficient lights, and that he (they) will indemnify and save harmless the parties of the first part from all suits and actions of every name and description brought against them, and all costs and damages to which they may be put, by reason of injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the same, or from improper materials used in its construction, or by or on account of any act or omission by the said party of the second part or his (their) agents.” Simultaneously with the execution of said contract a joint and several bond was entered into by said Nutt & Kearns, John Brady and William Hollweg, whereby they bound themselves in the sum of $5,000, the condition of the obligation being that Nutt & Kearns “ shall well and truly, and in good, sufficient, and workmanlike manner, perform the work mentioned in the aforesaid contract, and complete the same in accordance with the terms and provisions therein stipulated, and in each and every respect comply with the condition therein contained, then this obligation to be void; otherwise to remain in full force and virtue.”
    On the 13th of November, 1883, Augustus W. Cruikshank was injured by falling over an unguarded pipe left across the west sidewalk on Ninth avenue. December 7, 1883, he filed his claim with the city for the damages sustained, which was not allowed. In May, 1884, he began an action in the supreme court against the mayor, aldermen and commonalty of the city of New York, said Joseph D. Nutt and Patrick Kearns. He alleged in his complaint, among other things, as follows: “(4) That during the progress of the construction of said sewer or sewers in the said portion of Ninth avenue, and in the month of November, 1883, the defendants, Joseph D. Nutt and Patrick Kearns, and their servants, having unlawfully, carelessly and negligently placed and extended a certain pipe over and across the sidewalk between Eighty-first and Eighty-second streets, on the westerly side of Ninth avenue, which said avenue is a public highway, did negligently and carelessly suffer said pipe to remain extended and across said sidewalk uncovered and exposed, without guarding the same, and without placing any light or signal near thereto to indicate danger, thereby creating and continuinga public nuisance, and rendering said sidewalk insecure and dangerous to citizens and travelers. (5) That the defendant, the mayor, aldermen and commonalty of the city of New York, and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid. (6) That on the 13th day of November, 1883, the plaintiff, while lawfully and carefully passing along said westerly side of Ninth avenue, between Eighty-first and Eighty-second streets, on the sidewalk, entirely unaware and unsuspicious, of danger, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect and default of the defendants, stumbled against said pipe, and fell over the same.” The defendants filed separate answers, denying any liability. On the 6th of June, 1885, notice was given by the corporation counsel to Nutt & Kearns and to William Hollweg and John Brady of the pend-ency of the action, the purpose for which it was brought, that damages were claimed, and they were asked to defend the action at their own expense. The defendants Hollweg and Brady paid no attention to the notice, and refused to appear and defend the action. On the 6th of October, 1885, the action was brought to trial, and resulted in a verdict in favor of the plaintiff for $4,500 damages, and on the same day a judgment was ordered for $4,884.94 damages and costs, which the city paid to the plaintiff on the 23d of December, 1885, together with interest, amounting ing in all to $4,937.05. Afterwards this action was begun by the city to recover from these defendants the amount which it had been compelled to pay.
    On the trial the plaintiff introduced in evidence the contract, the bond, and the judgment roll, proved the payment of the judgment and the amount expended in contesting the former action, and rested. Thereupon the defendants moved for a dismissal of the complaint on the ground that the plaintiff had not shown that the damages recovered by the judgment were caused by the negligence of the contractors, for whom the defendants were sureties. This motion was denied, and an exception was taken. The defendants then proved that the city paid on the contract the following sums at the following dates: December 1, 1883, $1,120; January 30, 1884, $1,120; March 31, 1884, $1,059.80; May 12, 1884, $1,050; June 10, 1884, $1,120; August 28, 1884, $2,218.92; May 2, 1885, $334.90; total, $7,918.62. The defendants also showed that August 26, 1884, the contractors acknowledged full payment of all their claims arising out of the contract, and executed a general release of all demands against the city. The defendants then proved that the action brought by Cruikshank was not noticed for trial as against the contractors, and that in 1888, on their motion, that action was dismissed for the want of prosecution. The defendants introduced §§ 12, 14 and 17 of page 7 of the revised ordinances of the city, and offered to prove that soon after the contract was closed the contractors became and remained insolvent, which evidence was excluded, and an exception was taken. This was all the evidence received or offered on the trial. At the close of the evidence the defendants again moved to dismiss the complaint, which was denied, and an exception taken, and thereupon the court directed a verdict in favor of the plaintiff for $7,140.73, the amount of the former judgment with interest, and $116.14, the expenses incurred in defending the former action. A judgment was entered, from which the defendants appealed.

      James A. Deering, for app’lts; W. H. Clark (Charles Blandy and Terence Farley, of counsel), for resp’t.
   Follett, J.

There was no question of fact for the jury. The main contention on this appeal is, did the evidence establish a cause of action in favor of the plaintiff ? The learned counsel for the defendants insisted that their liability was not established, because it was not affirmatively shown that the judgment recovered by Cruikshank was for damages caused by some negligent act or omission of the contractors, for which, as between them and the city, they were primarily liable. That it was necessary to show this fact, unless some provision in the contract rendered it unnecessary, is established by several cases in the court of last resort. City of Rochester v. Montgomery, 72 N. Y, 65; Mayor, etc., v. Troy & L.R. Co., 3 Lans., 270, affirmed 49 N. Y., 657 ; City of Cohoes v. Morrison, 42 Hun, 216; 5 St. Rep., 106, affirmed 116 N. Y., 662; 27 St. Rep., 982; Oceanic Steam Nav. Co., v. Compania Transatlantica Espanola, 134 N. Y., 461; 47 St. Rep., 742.

Does the fact affirmatively appear from the judgment roll that the damages were caused solely by the contractors’ negligence, or, if jointly with the city, that, as between them, the contractors are primarily liable ? The judgment proper is in the ordinary form of judgments in common-law actions for the recovery of damages, and discloses neither the nature of the action nor the particular cause for which the judgment was rendered. The postea simply recites that a verdict was rendered for $4,500. The only papers contained in the roll are the summons, complaint and answer. In the third subdivision of the complaint it is set out that Nutt & Kearns entered into a contract with the city by which they undertook to build for it a sewer in Ninth avenue, between Eighty-first and Eighty-third streets. In the fourth subdivision, which is quoted in the statement of facts, it is set forth that Nutt & Kearns negligently left a pipe across the .■sidewalk, over which the plaintiff fell and was injured. In the fifth subdivision it is alleged that the “city of New York and ■its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.” In the sixth subdivisión it is averred that-“ the plaintiff, without fault or negli-’ ■gence on his part, but wholly by- reason of the wrongful act, meglect and default of the defendants, stumbled against said pipe and fell over the same.” The result of these allegations is that the injury was caused by the concurring acts of the contractors and of the city; but the issue whether the city or the contractors were primarily liable as between themselves was not presented nor tried, as, indeed, it could not have been without .the consent of both parties and the court, for reasons stated in Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra. This issue might have been raised, as between the defendants in the original action, by the service of an answer by one defendant on a codefendant, as provided by § 521, Code Civil Procedure. Whether the plaintiffs or the contractors are primarily liable for the negligence is an issue on which neither the contractors nor their sureties have had their day in court. That it is possible that the city may be primarily liable is shown by the terms of the contract introduced in evidence by the plaintiffs, for by it the city had the right to supervise and direct the manner of doing the work, and, among other things, it was provided that: “All iron, water and gas pipes which it becomes necessary to remove shall be considered as the property of the parties of the first part [city], and left in such part or parts of the streets as the engineer may direct, unless notice to the contrary is given in writing by the commissioner of public works to the said contractor, in which case the same shall be removed or otherwise disposed of at the expense of said contractor."

When indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, is primarily liable, the eases hold that the judgment is evidence in the action brought for indemnity (1) that the defendant in the first action, plaintiff in the second, was liable for the damages, (2) when notice has been given to defend, of the amount of the damages arising from the injury; but it does not establish which of the wrongdoers is primarily liable. The reason of this is plain. The liability of the defendant in the first action, and the amount of damages sustained, were issues presented and determined; but which of the wrongdoers was primarily liable is an issue not usually presented or determined in the action. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra. Is there any provision in the contract which takes this case out of the general rule? It provides “ that they will indemnify and save harmless the parties of the first part (city) from all suits and actions of every name and description brought against, them (city).” The language quoted is part of subdivision h, which contains particular words limiting and controlling the general words, and makes it plain that the contractors and their sureties-are not, by the terms of the contract, liable simply because a judgment has been recovered against the city. Sedg. St. & Const. Law, 360. Again, this action neither was brought nor tried on the theory that a judgment having been recovered against and paid by the city for acts arising out of the construction of a sewer rendered the contractors and their sureties liable under the language quoted fzxxm provision h, and it is not necessary to consider further this question.-

The fact that the city made payments to the contractors after Cruikshank was injured, and presented his claim is no defense to this action, for the contract provides:

“ The said party of the second part (contractors) hereby further agrees that the whole or so much of the moneys due to him (them) under and by virtue of this agreement as shall or may be considered necessary by the commissioner of public wozks shall or majr be retained by the said parties of the first part (city) at their sole and exclusive option until all such suits or claims for damages aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the said commissioner.”

The contract is referred to in, and is made a part of, the bond executed by these defendants. The judgment must be reversed, and a new trial granted, with costs to the appellants to abide the event.

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


text:
    James S. Manning, as Survivor, App’lt, v. James W. Lyon, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Payment—Note of third person.
    A contract of sale provided that a certain part of the purchase price should be paid by a note made by third persons, and indorsed by the purchaser, which was done, and a chattel mortgage given the seller conditioned for the discharge of all liability as indorser on the note, but containing no provision acknowledging the indebtedness of the mortgagor to the mortgagee, or promise to pay any sum. Held, that it will be presumed that the note was given in payment for the goods sold, and the seller not entitled to recover on the original indebtedness.
    3. Bills and notes—Indorsers.
    In such case the liability of the purchaser was that of indorser, and could not be enforeed unless demand and notice of non-payment had been given him and prior indorsers.
    3. Same — Insolvency of maker no excuse for failure to make DEMAND.
    In this state the mere proof of the insolvency of the maker of a promissory note is not a sufficient excuse for failing to present the note for payment and notify the indorser of its dishonor.
    4. Election—When compelling harmless error.
    It is harmless error to compel a plaintiff to elect on which of two consistent causes of action, alleged in his complaint, he will proceed, when the evidence shows that he could not have recovered on the cause not elected.
    Appeal from judgment of dismissal entered at the close of the plaintiff’s case in an action on a contract.
    On the 20th day of January, 1890, A. 0. Manning & Co. and James W. Lyon entered into a written contract by which the former agreed to sell and the latter to purchase an Otto gas engine for $1,250, to be paid for when set up and in running order, as follows: “ $350.81 cash on completion of the work, and the balance in a promissory note made by the Salmon River Paper Co. for the sum of $899.19, and interest at the rate of five per cent., dated the 2d day of December, 1889, payable to the order of Clark, Neergaard & Co., 12 months after date, indorsed by the said Neergaard Co., also by J. W. Lyon & Co. and James W. Lyon, whose indorsement for the payment of the note is to be secured by a chattel mortgage on said Otto gas engine and fixtures.” On January 27, 1890, the engine was delivered in running order, and on that day the defendant paid $350.81 in cash, and indorsed and delivered the promissory note described in the contract, which was payable at the American Exchange National Bank. On the date last mentioned, the defendant executed and delivered to the plaintiff a mortgage on the gas engine, as provided by the contract, “for securing the payment of the money hereinafter mentioned.” This mortgage contained the following condition : “ Upon condition that if the said party of the first part shall and do well and truly pay unto the parties of the second part, their executors, administrators or assigns, and discharge all my liability as indorser of and upon a certain promissory note,” describing the note mentioned in the contract of sale. The note was not presented for payment at the time when and place where payable, nor was it protested.

      Kneeland, Stewart & Epstein (John J. Connelly, of counsel), for app’lt; Geo. W. Van Slyck, for resp’t.
   Follett, J.

In the complaint the sale of the engine and the indorsement of the note were set out, and the plaintiff sought to recover on the original indebtedness, and also on the contract of indorsement. Before the case was opened, the defendant moved that the court compel the plaintiff to elect whether he would seek to recover on the original indebtedness or on the indorsement. This motion was granted. The plaintiff excepted, and then elected to recover on the contract of sale. After the case had been opened, but before any evidence was offered, the plaintiff, with leave of the court, reconsidered his election, and elected to seek to recover on the defendant’s indorsement.

Assuming that the court erred in compelling the plaintiff to elect between these consistent causes of action, Abb. Tr. Brief, § 704, and cases there cited, we think it was an error without prejudice, causing no harm to the plaintiff. The contract of sale and the chattel mortgage were received in evidence without objection, and no evidence offered by the plaintiff to establish the allegations was rejected. If, under all the evidence, the plaintiff was not entitled to a recovery on the original indebtedness, he was not harmed by the election he was compelled to make. Whether the defendant was liable upon the original indebtedness arose upon the original contract, chattel mortgage, and the testimony given on the trial, which was wholly undisputed, and was a question of law for the court. It is expressly provided in the contract that $899.19 of the purchase price of the engine should be paid by this note, indorsed by Clark, Neergaard & Co., by J. W. Lyon & Co., and James W. Lyon. It is recited in the chattel mortgage that it was given for securing the payment of the money thereinafter mentioned. There is no provision in the mortgage .acknowledging an indebtedness of the mortgagor to the mortgagee, nor does it contain a promise to pay any sum. The condition is that the party of the first part shall pay to the parties of the second part and discharge all his liability as indorser upon the note described. When a note made by a third party is exchanged for property, the presumption is that it was received in payment •of the price of the property. Whitbeck v. Van Ness, 11 Johns., 408; Noel v. Murray, 13 N. Y., 167. There is nothing in the evidence which tends to rebut this presumption, and, upon the entire record, we think the plaintiff was not entitled to recover on the original indebtedness.

Is the defendant liable on his indorsement ? The note was not presented for payment when due, and no notice of nonpayment was .given to either indorser, nor is there any evidence that either indorser waived presentation of the note for payment or notice of its dishonor. The only excuse for not presenting it alleged in the ^complaint is the averment that, before the maturity of the note, the maker and first indorser became, and ever since have remained, insolvent. This fact was not proved. The only evidence bearing-on this question was that several notes of the same character as the one described in the complaint were payable at the American Exchange National Bank; that no funds were provided for their payment, and that they were not paid. It was not shown, nor was it attempted to be shown, that the maker or first indorser had no property out of which the sum due on the note, or some part of it, could have been collected. Such a state of facts affords no-legal excuse for the plaintiff’s failure to present the note for payment, and his neglect to notify the defendant of its dishonor. In" this state the mere proof of the insolvency of the maker of a. promissory note is not a sufficient excuse for failing to present the note for payment, and to notify the indorser of its dishonor. Smith v. Miller, 52 N. Y., 545.

■ Plaintiff did not ask to have any question of fact submitted to the jury, nor did he except to the direction of a verdict for defendant. Of course, this court has power to grant a new trial, even though no exception has been taken, in case the court below has heard or decided the issue on a wrong theory, and it appears-that injustice has been done the defeated party; but the case at. bar does not call for the exercise of this power.

The judgment should be affirmed, with costs.

O’Brien and Parker, JJ., concur.