text:
    Mortimer E Serat, Resp’t, v. Gabriel L. Smith et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Attorney and client—Compensation.
    Plaintiff desired to bring an action against a railroad company and agreed with defendants, his attorneys, in respect to their compensation, that “ if the suit is tried, and plaintiff is beaten, they are to have nothing, and if plaintiff succeeds on trial or by settlement they are to have one third the amount obtained by plaintiff, and all the costs recovered or received by defendant. This is the agreement made in this action.” Judgment was recovered against the company, but it became necessary, in order to enforce collection of the judgment, to bring an action to sequestrate the company’s property. Held, that the question as to whether the defendants were entitled to extra compensation, under their contract, for their services in the second action, was one for the court.
    3. Evidence—Parol—Contradiction of receipt.
    Defendants sent plaintiff a draft which stated on its face that it was in full for his share of the recovery, and which was endorsed and collected by him. The draft was accompanied by a statement showing its amount to be the balance due the plaintiff. Held, that the question whether the draft and the endorsement were equivalent to a receipt in full and whether the plaintiff was estopped thereby, was properly submitted to the jury.

      Verdict in favor of the plaintiff for $110.30, in the Chemung county court. Appeal from the judgment entered thereon. May 29, 1888, the action was commenced in a justice’s court The trial in that court was completed on July 13, 1888, and a judgment given for the plaintiff against,the defendant for $189.89. The plaintiff’s complaint alleges that on the 12th day of July, 1883, he made an agreement with the defendants, who were practicing lawyers in the city of Elmira, “ whereby it was contemplated and agreed that these .defendants should receive and retain for themselves as and for full payment and compensation by plaintiff, for their costs and disbursements and all claims for services performed and to be performed and costs earned and disbursements incurred, then past and prospective, in relation to or arising out of a claim of this plaintiff against the Utica, Ithaca & Elmira Bailroad Company, one-third of the amount collected as damages in behalf of the plaintiff against the said railroad company, and should pay to plaintiff the remaining two thirds of such amount as soon as the same was received by defendants, together' with such interest thereon as might be received by defendants when said damages might be paid to them by said railroad company.” The complaint also alleged that on the 10th day of May, 1886, “ after these defendants had performed all the services contemplated by said agreement and relating to the plaintiff’s said claim against said railroad company, the defendants received under said agreement from said railroad company the sum of 1,516.50, the amount of the damages obtained by plaintiff against said company, and also the sum of $237.78, the interest on said $1,516.50, from September 29, 1883, the date when said sum was awarded as damages to plaintiff against said company, to May 10, 1886, the date when said damages and interest was paid, amounting in all to the sum of $1,754.28. Plaintiff alleged that he had demanded payment of the sum of $1,169.52, “ but defendants failed and refused to pay the same, or any part thereof, to plaintiff until March 21, 1887, when defendants paid to plaintiff, to apply thereon, the sum of $1,054, the amount then due and payable from defendants to plaintiff being $1,230.09, * * * and there remained due to plaintiff and unpaid, after deducting said sum of $1,054 paid to apply, the sum of $176.09.” The answer of the defendants was a denial of the allegations of the complaint, and an averment of “settlement and satisfaction and payment, and a counterclaim for services to the value of $250, and demand judgment for $250.” On page 490 of the defendants’ register was the following agreement:
    “SUPBEME COUBT—Chemung County.
    “ Mortimer E. Serat “ ag’st “ The Utica, Ithaca, & Elmira Bailroad Co.
    “ Smith & Robertson.

    “ The agreement between plaintiff and his attorneys as to pay for their services is as follows : If the suit is tried and plaintiff is beaten they are to have nothing, and if plaintiff succeeds on trial or by settlement they are to have one-third the amount obtained by plaintiff, and all the costs recovered or received by defendant. This is the agreement made in this action.
    “ July 12, 1883. M. E. Sebat.
    “ Smith & Robertson.
    “ Attys.”

    At that time the plaintiff claimed that the railroad company had forcibly ousted him from a tressel work which he claimed to own, and the action was brought to recover its value, which action resulted in a judgment on -the 29th of September, 1883, for $1,516.50 damages. The company appealed from this judgment to the general term. Pending that action and on or about the 3d of October, 1883, the defendants prepared papers in an action of sequestration, and at Delhi obtained an order to show cause returnable at the Madison special term, requiring the defendant to show cause why a receiver should not be appointed, and upon the court’s attention being called to the fact that a bond had been given on appeal no order was made. The appeal was heard in the general term and the judgment affirmed. The railroad company appealed to the court of appeals, where the judgment was affirmed and the remittitur was entered in the Chemung county clerk’s office on the 24th day of April, 1886. On the 10th day of May, 1886, the defendants executed and delivered to the railroad company a receipt for the amount of money then received, to wit, $2,108.19. In the statement to which the receipt is attached it appears that the amount of the first judgment, September 9, 1883, was $1,598.08, and interest thereon to May 9, 1886, at six per cent was $250.63. Other items in the statement appear to be for costs in the general term and in the court of appeals.
    On February 26, 1887, the plaintiff, by telegram to the defendants, asked: “ Has suit been decided ? ” On February 28, 1887, a telegram was sent to plaintiff at Lexington, Mo., to the effect that one of the members of the firm was absent from home, and that he would write on his return. On March 11, 1887, from Cherokee, Kan., the plaintiff sent a letter to one of the defendants making inquiry in respect to the suit, in which he says: “ If the suit is undecided, please so notify.” On March 19, 1887, a letter was addressed to the plaintiff by one of the defendants which contained the following language: “I have just this week returned from Albany and the court of appeals, and am now happy to announce to you that I have succeeded in collecting your money and will send it to you jus't as soon as I can get into the bank to get a draft It is now Saturday afternoon and I cannot do so until Monday morning. I have expected for months to be able to send you your money every mail, and therefore have neglected writing until to-day, every day expecting to be able to send you a draft to-morrow, but it has been prevented until now. And now that I have got something to write you, I do so. This explains why I have not written you sooner, at least, it is the only expíanation I have to give.” On the 21st of March, 1887, one of the defendants sent to plaintiff by mail a letter addressed to him at Cherokee, Kan., with a draft for $1,054, which draft was to the order of one of the attorneys; the letter stated the draft to be “in full of balance collection against the Utica, Ithaca & Elmira K. K. Go.” The letter contained the following: “ The statement is as follows:
    “Ain’t of judgment..........'.............'..... $1,516 50
    “ Deduct one-third.............................. 505 50
    “ Two-thirds..............•.................... 1,011 00
    “ Charge for sequestration action........ 100 00
    “Balance.................................... 911 00
    “ Interest.................................. 143 00
    “ Draft for total................................ $1,054 00
    “ I have had more trouble getting this than any money I think I ever got You remember that I had to bring a second action for you outside of the one in which I made the collection, for the purpose of sequestrating the road, which compelled them to give security, and that this action came on at Morrisville before Judge Murray, and for this I charge you $100. This was entirely outside of this action, and was really the proceeding that caused our success. I had to pay out a very large part of this charge for expenses in getting papers served, going to Morrisville, Madison county, etc., in the case. I have expected all this year, from week to week, to be able to send you the money, and in such expectation neglected writing you. I was before the court of appeals in Albany last week.” The plaintiff, testified that the letters of the 19th and 21st of March were the only letters that he received “ after the decision of the court of appeals up to the time of receiving them.” The plaintiff testified that after he received the letter of March 21st, and on the 21st of April, 1887,. at Parsons, Kan., he wrote to the defendants a letter containing a statement of the amount of the original judgment, and the interest thereon, and claiming therein that there was due him $1,230.20, less the remittance of $1,054, leaving the balance due the plaintiff of $176.20, and closing his communication with the following words “ I have drawn on you at sight for the above balance, $176.20. Please protect and oblige.”
    The draft was produced in evidence, having been returned to the plaintiff. “ It is conceded that the payment of this draft was refused.” It appears by the evidence that the draft of March 21, 1887, for $1,054, was an ordinary bank draft. issued by the Chemung Canal Bank, Elmira, payable to the order of Gf. L. Smith, and bore upon it an endorsement as follows: “Pay to the order of M. E. Serat in full for balance due on collection of judgment against the Utica, Ithaca & Elmira Bailroad Company in his favor. Gr. L. Smith. ”

      And under the endorsement and signature, as already stated, was the signature of the plaintiff, to wit: “M. E. Serat.”
    In the letter of April 5th, which the plaintiff sent to the defendants, he stated “You charge me $100 more than you agreed to conduct the suit for; second, you do not remit all the interest I am entitled to. With the information now at hand,. I cannot say exactly what the interest should be; but $148 does not cover it. Please remit the $100 above and balance of interest at once, and oblige.” On the 9th of April the defendants wrote the plaintiff a letter, addressed to him at Parsons, Kan., in which they say, viz.: “ The statement we sent you is entirely correct We made an agreement as to the one case, and after that agreement was made another action was commenced for you, in which we paid out about forty dollars in cash, and which action was the one that compelled them to give security on their appeal, and so enable us to collect in the end. We charged you for the same $100, which is a very reasonable charge. The interest as we figure it is correct” The complaint in the second action was verified by the plaintiff on the 3d day of October, 1883, and it stated that the execution on the judgment had been returned by the sheriff of Chemung county “ wholly unsatisfied, and that said judgment is wholly unpaid, and the said plaintiff is unable in any way to obtain satisfaction thereof.” Plaintiff verified an affidavit, which was used to obtain the order to show cause on the 9th day of October, 1883. The order to show cause was signed October 10, 1883, and was returnable at a special term in Morrisville, on the 16th day of October, 1883. One of the defendants testifies that the plaintiff directed the commencement of the sequestration action ; and also that “ there was nothing said between myself and him with reference to the expense of it, or as to whether or no it would be included in the agreement that I had with him in the other action. I did not tell him at that time what the probable expense of the other action would be, or what the charge would be. There never was any statement made by me in the conversation with him in which I said that, notwithstanding the commencement of this action of sequestration, so called, that the only expense to him would be the printing of points for the court of appeals.”
    The plaintiff testifies that on one occasion he obtained a copy of the agreement from one of the defendants “ and I asked him if that would cover all the costs that I would be liable for in the action. I didn’t know but there might be something outside that I did not understand; I asked him if that would cover all, and he told me that that would all the expenses that I would be liable for with the possible exception of printing something that had to go to the court of appeals; I don’t know what; some argument or. something that had to go to the court of appeals.
    “Q. Points? A Yes, sir; but beyond that I was responsible for nothing but the one-third. This was after this sequestration action had been commenced.”.
    One of the defendants testifies that on the 4th of May, 1886, he addressed a letter to the plaintiff to Lexington, Mo., in which he stated: “We have beaten them in court appeals, and hope to get our money soon, but they may keep us out of it a year or two, by compelling us to sue on the bonds, but I hope not. Let me hear from you so I may know your address in case the money comes; ” and one of the defendants testifies that he did not know prior to the 19th of March, 1887, that the plaintiff “ had changed his residence from Lexington, Mo.; at least I heard that he had changed it, but I did not know where.”
    Reynolds, Stanchfield & Collins, for app'lts; James A. Douglas, for resp’t.
   Hardin, P. J.

When the agreement of July 12, 1883, was entered into by the parties thereto neither of them contemplated or foresaw the possibility or probability of any other suit being necessary than the one which was then brought against the railroad company for the purpose of establishing the plaintiff’s cause of action against the company. Neither the terms of the agreement nor the surrounding circumstances indicate that either of the parties to the agreement supposed or expected there would be oily difficulty in collecting the claim if judgment was recovered therefor. The exact language of the agreement relates to the action commenced on the 12th day of July, 1883. The words “ if the suit is tried,” and the words “ this is the agreement made in this action,” indicate an intent and purpose on the part of the contracting parties to deal with the action then instituted, and, as already stated, there are no words in the agreement referring to any other action, and the words used are restrictive to the action then instituted. We think the parties in reducing the contract to writing “ defined their meaning by plain and unequivocal language ” and that it was the duty of the court and not of the jury to determine and declare what that is.” Dwight v Germania Life Ins. Co., 103 N. Y., 342; 3 N. Y. State Rep., 115.

In Brady v. Cassidy, 104 N. Y., 155; 5 N. Y. State Rep., 969, the rule which is applicable here is laid down by the court of appeals in the following language: “The rule is well settled that when the terms and language of a contract are ascertained, in the absence of technical phrases, the meaning of which is obscure, or the existence of latent ambiguities rendering the subject matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone.” In the case in hand we are unable to discover any technical phrases in the agreement entered into by the parties, the meaning of which is obscure, arid we discover no latent ambiguities or anything in- the phraseology used by the parties “ rendering the subject matter of the contract uncertain and doubtful.” - We thereiore think the learned trial judge-fell into an error when he refused as a matter of law to construe the agreement and when he submitted to the jury the question as to whether or not it embraced by its terms the services rendered in the second action commenced by the defendants at the request of the plaintiff. Exceptions were taken to the charge and the refusals to charge clearly presenting the questions here. It is insisted in behalf of the respondent that there was some evidence of an oral understanding between the plaintiff and the defendants that there should be no charge for services in the second action. Plaintiff gave some evidence tending to support such position; however, the defendants’ testimony contradicts that of the plaintiff. Besides, it may be suggested that after a recovery of the judgment the defendants, in virtue of the agreement, having a lien or equitable ownership of one-third of the judgment, were to that extent interested in the proceedings to realize, the moneys upon it, and that circumstance may tend to support the theory of the plaintiff, that the defendants undertook the Subsequent proceedings under a fresh arrangement that there should be no charge for their services in the efforts to collect the judgment. And in that respect there was a question of fact for the jury to determine. If we could see that the verdict rested upon that issue, then the error which we have already pointed out might be overlooked, but it is not apparent that the refusal to rule upon the agreement as a matter of law, and the submission of its interpretation to the jury as a question of fact, may not have influenced or produced the verdict. The services rendered in the second action not having been embraced in the language of the agreement of July 12th, compensation therefor was not covered by the sum which the defendants were entitled to receive under that agreement. If there was any agreement between the parties that the services should not be compensated for, if they were not embraced in the agreement, then the defendants were authorized to make a reasonable charge therefor, and having charged $100 therefor, the question upon the trial was for the jury to determine whether that should be the limit of their right to compensation, notwithstanding the evidence given by several professional gentlemen that the services were worth a much larger sum. However, it is quite apparent that the jury excused the defendants from paying the interest on the money while it was withheld by the defendants, upon the supposition that the defendants were not aware of the residence of the plaintiff from the time they received the money on the 10th of May, 1886, down to the time when they transmitted to him in March, 1887 ; and it seems to be equally apparent that the jury came to the conclusion that the services in the second action were covered by the agreement of July 12th, and, therefore, they awarded the plaintiff $100 withheld by the defendants, and the interest thereon.

(2) We are of the opinion that no error was committed upon the trial in submitting the question to the jury as to whether the statement made by the defendants in March, 1887, and the draft of $1,054, and the endorsement thereon were equivalent to a receipt in full for the balance due on the collection of judgment against the railroad company, and upon all the evidence before the court we think no error was committed in refusing to charge that the plaintiff was bound by the endorsement on the draft transInitted to him by the defendants in March, 1887.

In Ryan v. Ward, 48 N. Y., 207, it was said: “ It has long been settled in this state, that a receipt furnishes mere prima fade evidence of the facts stated therein, and that it may be controverted or explained by paroi evidence. * * * This grows out of the fact that a receipt is not a contract It is a mere declaration or admission in writing. * * * A receipt in full contains a declaration that a certain sum has been paid in.full of all claims of a certain kind, or of all demands. Neither kind of receipt embodies any contract. Both furnish only prima fade evidence, and are valuable only as such. Both are equally open to explanation or contradiction.” The last case is cited approvingly in McKenzie v. Harrison, 120 N. Y., 265; 30 N. Y. State Rep., 934.

(3) It is insisted in behalf of the respondent that the jury were . “ justified in finding that the defendants wrongfully withheld the plaintiffs money, with the intention of using the same so long as they could do so, and that their pretense that they did not send it to him for the reason that they did not know his address was only thought of when they were brought into a court of justice to respond in damages for their unprofessional conduct.”

When this cause shall again be. tried before the jury, the respondent can assert that position. We find little occasion to express any controlling views upon the subject. Apparently the defendants received information as early as the 24th of April that the court of appeals had affirmed the judgment, as on that day they served the attorneys of the railroad with notice that the court of appeals had affirmed the judgment; and on the 4th of May, 1886, served their bill of costs with a statement of the amount that was claimed, and on the 10th of May, 1886, delivered their receipt for the money received of the railroad company, to wit, $2,108.19, which one of the defendants deposited in the bank to his own credit. Whether the defendants exercised good faith under the circumstances, and whether they should be relieved from the payment of interest from the 10th of May 1886, until March, 1887, will be appropriate questions for the jury to consider. And bearing upon those questions the letter of April 28, 1886, may be considered. In their letter to the plaintiff, one of the defendants states: “Your case had been argued in the court of appeals; when it will be decided nobody can tell only the court, and they won’t tell us; will advise you when I learn.” It may be observed that we find this letter quoted in the points of the respondent, and the first sentence thereof is made to read as follows: “ Your case has 'been argued in the court of appeals.” Which is the correct version of the letter will undoubtedly clearly appear on the trial.

Judgment reversed and a new trial ordered in the county court of, Chemung county, with costs to abide the event.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J. Martin, J.

license: Public Domain

text:
    Frederick L. Lovelace, Resp’t, v. The Doran & Wright Co. (Limited) et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Corporations—Action against—Demurrer to complaint.
    In an action against a corporation and its directors, the complaint alleged that the company made its note to the plaintiff at a time when it was indebted to other persons to an amount greatly in excess of its capital stock, and that such indebtedness was created by the defendant directors, and that they became personally and individually liable to plaintiff thereby under chapter 611 of the Laws of 1875, and judgment was asked against the directors only. On separate demurrers to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that causes of action were improperly joined, Held, that the demurrer of the corporation should be sustained and that of the directors overruled.
    (Martin, J., dissents.)
    Appeal from an order and interlocutory judgment overruling demurrers to the plaintiff’s amended complaint. The complaint alleges the organization of Doran & Wright Company, Limited, under chap. 611. of the Laws of 1875, and that its capital stock was $100,000, fixed by the provisions of law, and that on the 26th of April, 1890, Doran '& Wright Company, Limited, made its promissory note- and delivered the same to the plaintiff, and that when it was delivered to the plaintiff, to wit, on April 26th, the company was wholly insolvent, and that when the note was delivered and when it' matured the company was “justly indebted to divers persons in and to the sum of about $250,000. That the amount of said defendant’s indebtedness at said times exceeded, and now exceeds, the amount of said defendant’s capital stock by and to the amount of about $150,000the complaint also alleges .the individual defendants were on the 26th of April, 1890, “ and at the time of the making and delivery of said note, and also at the date of its maturity, and now are, the directors of the said defendant, Doran & Wright Company, Limited, the corporation creating such indebtedness above mentioned, and that said indebtedness was created by said directors, the defendants herein, and that on said dates there were no other directors than those named of said defendant corporationthe complaint also alleges that under chap. 611 of the Laws of 1875, the individual defendants “ became and now are personally and individually liable to this plaintiff, and an action accrued' to this plaintiff for the amount of said indebtedness of said defendants, Doran & Wright Company, Limited, to this plaintiff, to wit, for the amount of $178.93.”
    In the prayer in the complaint, judgment is asked against the individual persons named as defendants, and no prayer for judgment is found against the corporation. To the complaint separate demurrers were interposed, one by Doran & Wright Company, Limited, specifying thirteen grounds, and one by the individual defendants, specifying a like number of grounds. Among the grounds stated for demurrer are “ that the complaint does not state facts sufficient to constitute a cause of "action,” and “ that causes of action have been- improperly united,” and'“that causes of action have been improperly united, in that the said causes of action do not affect all the parties to the action,” etc.

      Shepard, Osborne & Prentiss, for app’lts; Frederick L. Lovelace, in person, for resp’t
   Hardin, P. J.

We think the facts set out in the complaint are ' sufficient to constitute a cause of action against Doran & Wright Company, Limited, as a corporation.

(2.) By the opinion delivered at this term in Lovelace v. Doran and others, we have held that the complaint contains a cause <pf action against the individual defendants, however, that is not based upon the same contract made by the corporation. The contract made by the corporation is binding by its note. The liability of the individual defendants arises out of facts and circumstances aliunde the note, to wit, that the individual defendants are directors of the corporation, and as such consented that the indebtedness of the corporation should be in excess of its capital stock, and by reason of such consent the statute of 1875, § 22, imposes a liability for such excessive indebtedness, and the plaintiff, being a holder of a portion of the excessive indebtedness created, is entitled to recover thereon.

In the course of the opinion delivered by Landon, J., in Patterson v. Robinson, 37 Hun, 344, he states that “ the liability of the assenting trustee is a contract,” and he adds: “The assenting trustee, knowing that the indebtedness of the company has reached at least an amount equal to the capital stock, concurs with the company in contracting further indebtedness. He knows that the statute, in case he assents, makes him also liable. He gives his consent, and thereby, under the statute, pledges his liability. The statute says to the assenting trustee you may contract as many debts as you choose to become personally liable for.” We think, under such circumstances, the directors in some sense became guarantors of the indebtedness of the corporation.

In Barton v. Speis, 5 Hun, 60, this court held that an action against the maker and guarantor of a promissory note, the complaint setting out in a single count a gpod cause of action against each, that “a separate demurrer by each defendant, on the ground of an improper joinder of causes of action, is proper and should be allowed.” In delivering the opinion in that case at special term, which was approved by this court, I said “ Certainly, the causes of action set out in the complaint here do not affect all the parties. The one against the maker does not affect the guarantor, and vice versa. They are as independent as though upon separate notes; one made by one defendant and the other by the other defendant The allegations of the guarantee were not essential to a complete and perfect cause of action against the maker. The plaintiffs could maintain separate actions, and they are not entitled to maintain a joint action upon separate instruments.” We think the reasoning of that case applies here.

A somewhat similar question was presented in Nichols v. Drew, 94 N. Y, 22. and in the opinion it is said “but the objection is not for a misjoinder of parties. It is for a misjoinder of causes of action. Those arising on contract and affecting all-the parties may be joined. Those arising on contract but inconsistent with each other, or not affecting all the parties, cannot be joined, and the defect may be reached by demurrer. The general term was, therefore, right in its conclusion.”

However, a majority of the court is of the opinion that the demurrer of the defendant corporation should have been sustained and the demurrer of the other defendants overruled.

Interlocutory judgment as to the appellants other than the corporation defendant affirmed, with costs, with leave to answer upon payment of costs of the demurrer and of this appeal. Interlocutory judgment as to the corporation appellant reversed, with costs, with leave to plaintiff to amend upon the payment of costs of the demurrer and of this appeal.

Merwin, J., concurs in result

Martin, J.

(dissenting)—As there is no demand for any relief whatever against the corporation, I do not think the complaint can be regarded as a complaint against the corporation, and, hence, that there was no misjoinder of causes of action.


author: Hardin, P. J.

text:
    Francis Duford et al., Resp’ts, v. William Patrick, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Contract—Acceptance of subject matter without complaint.
    Plaintiffs contracted with defendant to sell and furnish him all the cut stone needed in making certain repairs to canal locks, agreeing that “all of said stone shall be of such size and quality as shall pass inspection by the state engineer in charge of said work.” A quantity of stone was furnished defendant by the plaintiffs under the contract, and received without complaint that it had failed to pass inspection. Held, that as the stone was received without complaint, plaintiffs were entitled to recover the contract price of the same.
    8. Same—Actual measurement.
    The contract provided “that the courses of stone shall run from twelve to twenty-nine inches thick," and contained no other provisions relating to the measurement. Held, that the defendant having received the stone placed upon cars, and accepted the same, should be required to pay for their actual measurement, although in excess of the quantity required.
    Same—Defective performance—Charge.
    Evidence was given that some of the stone were cut winding, and were not level, and would not lay without recutting. Held, that the court properly charged that “ so far as that work was necessary to be done, growing out of the defective character of the stone when delivered, the defendant would be entitled to recover damages therefor.”
    . Appeal from a judgment entered upon a verdict taken at the Oswego circuit, and from an order denying motion for a new trial on the minutes.

      Avevy & Merry, for app’lt; Brown & Adams, for resp ts.
   Hardin, P. J.

On the 14th day of August, 1888, the plaintiffs entered into a contract with the defendant in which they “ agree to sell and furnish to said party of the second part all cut stone for use by said party of the second part in lengthening guard lock number three (3) and lift lock number eleven (11), of the Oswego canal, at the following prices, viz.: ten and 75-100 dollars ($10.75) per cubic yard; said stone to be delivered on board the cars at Ohaumont, H. Y., and all of said stone to be so delivered on or before the 15th day of December, 1888. It is mutually agreed tkát all of said stone shall be of such size and quality as shall pass inspection by the state engineer in charge of said work.”

After the execution of the contract the plaintiffs commenced getting from the quarry and to the railroad and into cars, apparently furnished by the defendant, stone for the uses mentioned in the contract. The stone were transported to a point about two miles from the locks where they were to be used, and from that point they were hauled by teams to the locks and were used in carrying forward the work which the defendant had undertaken. It appears an inspector was placed in the quarry to examine the stone before they were placed upon the cars, and it appears that the defendant caused the stone to be inspected by the state engineer or his agent at the time, and after the same were placed in the locks.

There was a conflict on the trial in the evidence as to the quantity of stone furnished by the plaintiffs and as to the proper mode of measuring the same. There was also some evidence of some extra stone furnished by the plaintiffs for the defendant, which they received and which were not embraced within the contract.

The testimony is, that the fair value of the extra stone is $183.67. The testimony of one of the plaintiffs is to the effect that 924,-682 yards of stone were furnished under the contract, and that at the contract price the amount to be received therefor was the sum of $9,930.33. One of the plaintiffs testified that the defendant had paid on account of the stone'$8,948.50, and he testified that the balance unpaid, with the extra stone, was $1,194.49 ; and he also testified that the stone were all delivered on the cars at Chaumont, consigned to the defendant at Fulton, and that in an interview subsequently held with the defendant he made no complaint that the stone did not arrive- in time.

However, upon the trial the defendant took the position that the contract bound the parties to place the stone on board the cars on or before the 15th of December, 1888. In answer to this position, there was testimony that delays were occasioned by reason of the failure of the defendant to furnish cars for the transportation of the stone, and that there were heavy storms in the winter which interfered with carrying forward the shipments, and that the defendant continued to call for the stone and to receive the same, and to accept them under the contract, and to use them in the construction of the locks mentioned in the contract.

Whitbeck, the engineer in charge of the locks, was repeatedly at the locks supervising the construction of the same, and he testifies that about the 12th or 13th of April he saw one of the plaintiffs at Fulton who had his books there, and that they were examined for the purpose of arriving at the amount of stone that had been shipped under the specifications, and that they spent the treater part of two days figuring up and arriving at the amount of stone which had been delivered; and he stated that the amount of stone which were placed in the locks under the specifications for completing the same at 841 yards, and that that was all that was required to complete the locks; however, he adds: “We had stone over after the lock was completed. * * * I don’t mean to say that there were not. more than 841 yards delivered there by plaintiff, but that all the specification required him to deliver was 841 yards. The rest he delivered there were in excess of that; outside the specifications.” This witness also testified that “ there was an inspector at Chaumont under the direction of the superintendent of public works. The state had an inspector in the quarry. He inspected the stone before they were shipped to Pulton and put his mark on the stones. They were all subject to my inspection after they come, even after he has inspected them. He inspected and marked the stone, so I knew the stone he had passed. The superintendent of public works had an inspector representing his department at the quarry who inspected the stone at the quarry and marked them.” This witness further testified “ that he supposed these stone that were consigned to Patrick were received by him as far as I know. There were some surplus stone left after the completion of the locks.”

Evidence was given to the effect that “the defendant was to furnish cars for us to load. The defendant never said anything ■or made any communication to Duford & Son about the inspection of the stone after they were delivered. The defendant made no complaint to us that the stone were being cut out of order or not true, or anything of that kind.” We think sufficient evidence was given upon the trial to bring the case within the doctrine laid down in Delafield v. De Grauw, 3 Keyes, 467. In that case a quantity of cement was sold subject to the inspection of the United States inspector, and it was claimed some 800 barrels did not pass inspection; the defendant, however, neither gave notice to the plaintiffs of this fact nor returned the cement, and the report of the case states that “in an action to recover the balance of contract price for the cement delivered, it was held that it was the duty of the defendant, upon refusal of the government inspector to pass the cement, to have returned the same, or to have notified plaintiffs of the fact, and where the same were stored subject to their order. Having neglected to do any of these things, he had no cause of action or counterclaim against the plaintiffs upon the ground that the cement did not pass inspection.”

During the trial the court ruled that in measuring the stone in this case the actual measurements would be taken, and to that ruling the defendant excepted. The provision in the contract is to the effect: “It is mutually understood and agreed that the courses of stone shall run from twelve to twenty-nine inches thick.” The contract contains no other provisions relating to' the measurement of stone. It seems the state required the stone to be not less than twelve inches, and under the circumstances the defendant having received the stone placed upon cars and accepted the same, he should be required to pay for their actual measurement.

There was some evidence given upon the trial that some of the stone were cut winding and were not level, and they would not lay without recutting because they would not fit the courses they were intended for. During the charge delivered by the court, the jury were instructed that “ so far as that work was necessary to be done, growing out of the defective character of the stone when delivered at Chaumont, the defendant would be entitled to recover damages therefor.”

We think all the questions of fact were carefully and cautiously submitted to the jury by the learned trial judge, in a charge well calculated to direct the minds of the jury to the important questions involved in the case; and the charge was unexceptionable, no exceptions were taken to it, and that the verdict is sustained by the evidence.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.


author: Learned, P. J.

text:
    In the Matter of the Petition of Elvira B. Carpenter for the Appointment of a New Trustee in Place of George A. Pierce, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed September 25, 1891.)

    Trust—What will not constitute.
    Petitioner claimed that certain notes were given to deceased on an agreement that he would collect them and pay the proceeds to her or obtain new notes and deliver them to her. The assignment of the notes was absolute and the administrator of deceased claimed them as part of the estate. Held, that no such trust was created as would continue after the death of the deceased and authorize the appointment of a new trustee. That plaintiff’s remedy, if any, was*by action.
    Appeal from order of special term appointing a new trustee. W. 0. Daley, for app’lt; O. B. Patterson, for resp’t.
   Learned, P. J.

Elvira B. Carpenter presented a petition to the court setting forth that in 1889 Sylvanus Carpenter assigned eleven promissory notes to George A. Pierce.

She avers that this was on the agreement that Pierce was to collect the notes and pay the proceeds to the petitioner as a beneficiary, and in case the maker could not pay, then Pierce was directed to obtain new notes from such maker and deliver such new notes to the petitioner.

Copies of four of said notes and of the assignments endorsed thereon are given, which assignments are absolute on the face. Copies of six other notes are given, which notes were taken by Pierce as above provided. These are generally payable to him or bearer. One note was, as alleged, collected by Pierce.

Pierce died in 1890, and George E. Gillet was made his administrator. He inventoried these notes (excepting one) as assets of Pierce. The petitioner demanded them ana Gillet refused to deliver them.

The petitioner asked on notice to Gillet for a referee to take and report the amount of commissions due the estate of Pierce and the amount received by him, and also asked the appointment of a trustee to demand and receive the notes and to carry into effect the trust

The answer of Gillet, administrator, sets forth that he found the notes among the assets of Pierce: on information and belief, that at the time of the sale and delivery of the notes Carpenter was indebted in a considerable amount, and believed that such debts would bankrupt him if he could not avoid payment by a transfer of his property beyond the reach of creditors; that Pierce was the sole owner of said notes; that there was no such agreement as is set forth in the petition.

The special term appointed a new trustee, and the order contains this clause, “without prejudice to the rights of estate of George A. Pierce to contest.”

We think that even on the petition there was not shown such a trust as continued after the death of Pierce. The statement of the petition is that Pierce agreed to collect the notes and pay the proceeds to the petitioner. That was only a contract, not a trust. She could sue him for the proceeds when collected in a common law action. If he could not collect, then he was to get new notes payable to himself or bearer, and deliver those to the petitioner. After he had obtained such new notes, she could bring a similar action to recover them.

There are often agreements, expressed or implied, which partake of a fiduciary character, and yet which do not constitute a trust such as is intended in chapter 185, Laws of 1882. When accounts are put in an attorney’s hand for collection, there is a fiduciary character in the arrangement, but no trust, such as must exist in order that a new trustee can be appointed.

According to the petition, the petitioner was really the owner of this property, and Pierce was merely a collecting agent for her benefit.

There is a further consideration. The order contains a clause, quoted above, intended apparently to protect the interests of the administrator. But it is quite doubtful whether it has that effect If the new trustee should sue the administrator to recover the property thus said to be held in trust, this order would very possibly be treated, at least prima facie, as an adjudication that the alleged trust existed. Unless the court had held that the trust existed (it might be urged), no new trustee could have been appointed. And since the order was made on notice to the administrator, he had an opportunity to be heard and was heard in behalf of his claim to be the absolute owner. Hence, at least presumptively, the new trustee would claim that his right to the property was established and that all which remained unsettled was the exact amount after charging commissions, etc. The words of the order are only that the estate has the right to contest. And it is doubtful whether those words reserve the right to dispute the existence of the trust; if indeed such right would not be quite inconsistent with the principal part of the order.

It is plain that since the administrator is in possession of the property and claims to own it, and since all the transfers to his intestate are absolute on their face, the petitioner should recover the property, if at all, only by the ordinary course of a trial in due form of law. No summary proceedings should deprive the administrator of property of which he has possession and to which on the face of the paper he has absolute right. Whether the petitioner should bring a' common law action or an action in equity to enforce the alleged trust, we have no occasion to decide. Our reversal of ihe order is without prejudice to her bringing such action as she may be advised.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs, without prejudice to any action which the petitioner may bring to recover the property or to establish her rights at law or in equity.

Lardón and Mayham, JJ., concur. ,


text:
    Herbert M. Taylor, Resp’t, v. The Town of Constable, App’lt.

      (Supreme Court, General Term, Third Deportment,

      Filed September 25, 1891.)

    1. Negligence—Contributory— Knowledge of condition of bridge.
    Plaintiff was overseer of highways and examined the bridge in question with the commissioner, who said it was safe, but engaged plaintiff to repair it on a subsequent day by replacing some timbers with sound ones, to do which props were needed, which the commissioner agreed to furnish. The commissioner did not appear on the day set nor furnish the props. Subsequently plaintiff attempted to drive over the bridge with a threshing separator, when the bridge broke and he was injured. Held, that, on these facts, plaintiff could not be charged, as matter of law, with contributory negligence; but that it was a question for the jury.
    .2. Same—Towns—Constitutional law.
    Chap. 700, Laws 1881, making towns liable for injuries caused by defects in highways and bridges in cases where the commissioners of highways were formerly liable, is not unconstitutional.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    Action to recover damages for injuries caused by reason of the fall of one of defendant’s bridges, by means of which 'plaintiff was thrown into the water. For the facts in the case see former opinion, 32 N. Y. State Rep., 482.

      Badger & Badger (John T. Badger, of counsel), for app’lt; Kellas & Munsill (John P. Bellas, of counsel), for resp’t.
   Learned, P. J.

This case has already been before this court; and we are therefore somewhat familiar with the facts. On the first trial the learned justice nonsuited the plaintiff, substantially on the ground that as the plaintiff was overseer of the highway and had had some arrangements, as detailed in the evidence, with the commissioner of highways as to the repair of the bridge, he could not recover for his injury although the bridge was proved unquestionably to be out of repair.

We were of opinion that that was erroneous; and that the case should have gone to the jury. 32 N. Y. State Rep., 482.

On the second trial the jury found a verdict for the plaintiff and the defendant now appeals.

The defendant urges that the complaint is defective because while it alleges the accident and the defective condition of the bridge, it does not expressly allege that the fall of the bridge and the injury to plaintiff were caused by such defective condition or by the negligence of defendant or its .officer. The meaning of the complaint is unquestionable and this slight omission is of no consequence. Bo one could misunderstand the meaning.

There is no doubt from the evidence that the bridge had been for a considerable time in a very defective condition and that this was known to the commissioner of highways. In fact as the answer avers that for a long time prior to the accident the plaintiff knew that the bridge was unsafe, unfit for public travel and dangerous, and further speaks affirmatively of the unsafe, unfit and dangerous condition of the bridge at the time of the accident, there is no need to -discuss that part of the case.

The real defense is that the plaintiff knew of this, and, therefore, was himself negligent in going upon the bridge. We think that that was a question for the jury. And the learned justice submitted it to them very fairly. He left it to them to say whether, with the knowledge the plaintiff had, a reasonably prudent man would have gone over the bridge. That must be the question in such a case. A bridge which to some persons looks dangerous may after all be safe. And, on the other hand, a bridge which looks safe may be dangerous. The commissioner of highways had examined it with plaintiff’s aid not long before, and had said it was safe. Heavily loaded trains had crossed it nearly every day, and it stood open for public travel. We cannot say that the jury erred in holding that the plaintiff acted as a prudent man. It is unnecessary to repeat the testimony bearing on this point.

Another matter bearing somewhat on this same point is urged by the defendant. That is the arrangement made by the commissioner with the plaintiff in regard to the repairing of the bridge. The plaintiff and another were engaged by the commissioner as workmen to make the repairs which he had determined to make. He engaged men to help him by the day. He got some timber for the purpose, and they did some work on Friday.' He set the following Tuesday to go back and complete the job. But they needed some props to prevent the bridge from sagging. The commissioner said he would try to get them from Mr. Cargan, and that if Taylor and the other men saw Cargan they could get the props. He said that if he did not get there on Tuesday they might go on with the work, and they assented. The commissioner did not go there on Tuesday. It was too stormy to work. He did not go there again until the accident, a week and a half or two weeks.

Bow the plaintiff cannot on this state of facts be charged-with contributory negligence. He was only a workman, hired by the commissioner, and was under no obligation to continue the woriz especially on a day when the commissioner did not come be. cause it was too stormy. Certain props were needed to support the bridge in order that they might make the repairs. These the commissioner was to procure. It would seem that without them the men could not work. And the commissioner did not procure these props. This constituted another reason why the plaintiff was not negligent in not going on with the work. Time enough elapsed after that Tuesday within which the commissioner could have repaired the bridge before the accident, so that he remains culpable. And it is not shown that without the props, which he was to procure, the plaintiff could safely have ventured to replace the rotten part of the bridge with sound timbers. We cannot therefore say as matter of law that the plaintiff was negligent

It is further urged that chap. 700, Laws of 1881, which manes towns liable in these cases, is unconstitutional. We think not. It is only an extension to towns, to some partial extent, of a liability constantly enforced against cities. A city elects, or it may be the common council appoint, a superintendent of streets, or other officer, charged with the duty of repairing and keeping in order the streets. He neglects his duty and the city is liable for the consequential damages to travelers. The charter of the city imposes the duty of taking care of the streets on this officer, substantially as the statute imposes a similar duty on commissioners of highways in towns. Yet for his neglect the city is liable. This is only one of the many instances in which the members of a corporate body suffer for the misconduct of one over whom they have practically no control. The inhabitants of a town or the citizens of a city cannot as a body repair streets. Some individual must be chosen for that purpose. It might be said that the town or city had nothing further to do with the matter, and that only the officer was liable for the consequences of his neglect. But the policy of our law in this state has been otherwise. The city and now the town are made liable as for the acts of an agent. Probably it was thought that if the city or town would elect proper officers the work would be attended to. At any rate the general principle has long been settled, and we see no reason why an application of that principle to towns should he unconstitutional.

Judgment and order affirmed, with costs.

Landon and Mayham, JJ., concur.


text:
    James M. Covart, Resp’t, v. John W. Johnston, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 25, 1891.)

    •Specific performance—Agreement to sell land.
    Defendant made a written agreement by which he agreed to sell to plaintiff all the real estate owned by him in a certain town for a specified sum. At the time named in the agreement defendant executed deeds of a house and lot and some wild land, and plaintiff gave back a mortgage thereon for the balance of the purchase price, which he afterward paid. Defendant also owned an interest in some cemetery land in said town, which he did not convey, but plaintiff knew that such interest was not included in his deeds long before he paid the mortgage. Held, that as no fraud or mutual mistake was shown, it would be inferred that the cernetery land was not intended to be included, and the performance of the agreement as made should stand, and that specific performance as to such cemetery land would not be decreed.
    Appeal from judgment in favor of plaintiff, requiring the defendant to specifically perform an agreement for the sale of real estate, and convey the same to plaintiff.

      T. F. Bush, for app’lt; O. P. Howell, for resp’t.
   Learned, P. J.

The defendant made a written agreement dated March 27, 1887, by which, for a certain price, $1,700, to be paid, part at the time, some five months afterwards, and part in two equal annual payments, secured by mortgage, he was to sell to plaintiff “ all the real estate owned by me in the town of Highland.” The agreement was to be executed in ten days. Soon afterwards the plaintiff went to defendant to close up the transaction. The defendant then gave him in performance of the contract a warranty deed, consideration $1,500, of a house and lot in Highland and a quit-claim deed of two lots of wild land, consideration $200, in said town, explaining to plaintiff that defendant’s title to the wild land was under a treasurer’s sale, and therefore he gave only a quit-claim. The plaintiff received these and put them on record. The plaintiff paid the cash payment and executed a bond and mortgage on the house and lot and the wild land for $1,200, the balance of the purchase price, which he then delivered to defendant. This bond and mortgage the plaintiff paid in full about July 18, 1888, to the defendant

About the 23d of July, 1888, the plaintiff demanded of defendant that he should execute to him another deed of a certain interest owned by defendant in what may be called the cemetery. It appears that in 1885 two persons conveyed to the defendant one undivided third of a lot containing one acre and six-tenths to be used “ as and for a cemetery and for that purpose only.” By the conveyance four burial lots were set apart therein for certain persons. Before that conveyance and since, and before the contract with plaintiff, several interments had been made there; and lots had been sold and paid for. It is the defendant’s interest in this cemetery which plaintiff demanded.

This action is brought solely to compel a specific performance of the aforesaid agreement by a conveyance -of defendant’s one-third of the cemetery. The plaintiff had a decree in his favor and defendant appeals.

How it is to be noticed that there is no charge of fraud or deception in the execution or delivery of the deeds by defendant to plaintiff. Hor is there any request to reform those deeds for mistake. Ho such cause of action is claimed.

The plaintiff on the trial says that when defendant delivered them defendant said: “ Have you not been acquainted with me long enough to know that what I do is all right * * * You

have got an article or agreement if. this is not right” But there is no proof that plaintiff could not have read the deeds or even that he did not He says that six months after when the deeds were returned from the county clerk’s office he learned that the cemetery lot was not included.

It is evident then that, without fraud or intent to deceive, the deeds were delivered and the mortgage executed as a performance of the contract The parties then accepted the transaction as performance. Nothing more was asked. The consideration expressed in the two deeds was, in all, $1,700, the exact price according to the agreement In the absence of fraud the parties must' be held to have performed the contract then as they understood-it to mean. It is true that the words “ all my real estate ” might have been intended to include the cemetery. But it is equally true that the parties might have had no reference to the cemetery when the agreement was made. The defendant’s rights therein, were limited by the use to which it was devoted. And it is quite probable that the cemetery lot was not in the minds of the parties.

When therefore they came to perform the agreement and the cemetery lot was omitted, the inference is strong that it had never been within their intention. This view is enforced by the expressed consideration. It is further enforced by the fact that though the plaintiff, as he says, discovered six months afterwards that the cemetery was not included, yet a year afterwards he paid to defendant the full amount of the mortgage as if the contract had been fulfilled. It is enforced also by the fact that though plaintiff took possession of the house and lot he never had anything to do with the cemetery, and never acted with the other owners. He says that he wrote defendant and the defendant denies receiving the letter. But he took no affirmative action for the year during which, at least, he knew that his deeds did not convey the cemetery.

It cannot be claimed that there was a collateral agreement in the writing which remained in force after performance. Plaintiff’s claim is that defendant shall perform by executing a deed. That is the very thing that defendant did and which plaintiff accepted. And until fraud or mutual mistake is shown in respect to that performance, it must stand. The complaint does not allege and the proof does not show fraud.

There is another consideration. The remedy of specific performance is in a certain degree discretionary. It will not be granted where there is an unconscionable bargain, or where there is any lack of fairness. Even though it could not be said that the contract was tainted with fraud. 3 Pomeroy’s Equity, § 1405, note 3. A striking case illustrating this may be found in Denny v. Hancock, L. R., 6 Ch. App. 1. Now it is evident here that if the plaintiff understood the contract as including the ceme- ■ tery the defendant did not so understand it He valued his house and lot we may infer, at $1,500, and his wild land at $200, and sold both for $1,700. He executed and delivered the deeds explaining the reasons for a clause in one in respect to water pipe. So that on the whole case it may well be thought that the defendant did not suppose that the contract included the cemetery. If it be that the words of the contract were to be construed to include the cemetery, then the plaintiff should be left to his action at law for damages and not be permitted to enforce a contract specifically as to which there is an evident misunderstanding.

Furthermore, one who would have specific performance should be prompt in claiming it. Here the plaintiff on his own showing has waited a year, and during that time has given no intimation that the contract had not been fully performed. Still more, since his discovery, as he claims, that the defendant had not conveyed all his land to him, the plaintiff has voluntarily paid the defendant the money, or the balance of the money, secured by the mortgage without making any claim by the way of recompensement. All these circumstances should make the court refuse him this equitable relief.

The judgment should be reversed and the complaint be dismissed, with costs against the plaintiff.

Landon and Mayham, JJ., concur.


author: Per Curiam.

text:
    Minnie O’Neil, by Guardian, Resp’t, v. Fred. G. Battie, Trustee, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 25, 1891.)

    Schools—Trustee de facto—Hiring of teacher.
    At a school district meeting one M. was chosen chairman, and a motion being made that he be trustee, he put and declared the motion carried. A dispute arising, a ballot was taken and defendant declared elected. On appeal to the state superintendent, M.’s election was declared void. Previous thereto M. engaged plaintiff as teacher, and .gave her a written contract after she had taught a week, and she continued teaching until prevented by defendant. Held, that M. was a trustee de facto, and his written contract with plaintiff binding, and she was entitled to recover for the services performed by her and damages sustained by her by being prevented from performing.
    Appeal from judgment directed for plaintiff.
    Action to recover on a contract to teach school in school district No. 2 of the town of Easton, Washington county.
    On August 6, 1889, the school meeting of the district was held. One Moran was made chairman, and the record of the meeting shows that a motion was made and seconded that he be the trustee, which was put and pronounced carried by the chairman. A dispute then arising a new chairman was chosen and a ballot taken, which resulted in the election of the defendant. Moran then engaged plaintiff to teach the school, and a week after she commenced gave her a written certificate of hiring. On an appeal taken to the state superintendent Moran’s election was declared void, and defendant was again elected trustee at a special meeting called for that purpose, and the following day dismissed the plaintiff and put a new teacher in charga

      Gibson & Van Kirk, for resp’t; Edgar Hull, for app’lt.
   Per Curiam.

We are satisfied that Moran was trustee defacto. This is shown by the record of the meeting, by the appeal taken by the present defendant for the purpose of setting aside Moran’s election and by the decision of the superintendent ordering a new election. As such his written contract with the plaintiff was binding.

That writing, accepted by her, constituted the contract, whatever prior verbal agreement there may have been. It is hardly possible in any case that a written contract should be made, unless the parties have previously arranged the matter verbally. The writing supersedes all the verbal arrangements.

The plaintiff performed her part of the contract so far as she was permitted. She was therefore entitled to recover for what she had performed and damages for what she lost by being prevented from performing. The complaint contained only one count; but no objection was taken to this form of pleading.

The plaintiff’s inability to obtain other work after she was discharged by the defendant was proved.

We see no error in the trial.

Judgment affirmed, with costs against defendant personally.

Landon and Mayham, JJ., concur.


text:
    The People ex rel. Woodford Gaylord, late Sheriff, Resp’t, v. The Board of Supervisors of Schoharie County, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 25, 1891.)

    Mandamus—Order.
    As the entering of an order allowing a writ of alternative mandamus is a mere clerical duty, the mandamus will not be set aside for a failure to enter the order, but the order may be entered nunc pro tune.

    Appeal from order denying motion to set aside a writ of mandamus.

    Eelator applied "to Justice Mayham for a writ of mandamus to require the board of supervisors to audit his account as sheriff. The writ was granted, but was not entitled as of special term. It was signed by the clerk and an allowance endorsed thereon by the justice. A motion was thereafter made to set it aside on the ground that it did not appear to have been granted at a special term, and that no order therefor had been issued, which motion was denied.

      W. C. Lamont, for app'lt; A. B. Coons, for resp’t.
   Per Curiam.

The mandamus was granted at a special term, and could be granted only at a court. Code, §§ 2068,2069. Undoubtedly the proper mode for a court to act, or rather to express its acts, is by an order entered in its records. But the entering of such an order is a clerical duty. Frequently an order is granted in open court, and it may be a day or two before the formal order is entered in the clerk’s records. And the court would not set aside the order for the neglect of the clerk to enter it.

So in this case. The proper course would have been to enter an order. But as that is a clerical duty, we ought not to set aside the mandamus for the clerk’s neglect. The proper order may now be entered nunc pro tune; and thus the proper record of the action of the court will be preserved.

The order denying the motion is affirmed, with ten dollars costs and printing disbursements, and with leave to relator to enter nunc pro tune the proper order.

Landon, J., concurs; Mayham, J., not acting.


author: Putnam, J.

text:
    Jane Jackson, Resp’t, v. The Town of Fort Covington, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 25, 1891.)

    1. New trial—Newly discovered evidence.
    A new trial will not be granted on the ground of newly discovered evidence, where such evidence is merely cumulative, or is not so decisive in its character as to be likely to change the result.
    3. Same—Negligence.
    Newly discovered evidence to the effect that plaintiff’s son was driving with a loose rein and carelessly five rods from the place where the accident occurred, is not sufficiently important or decisive to warrant the granting of a new trial.
    Appeal from order denying motion for a new trial on the ground of newly discovered evidence.
    The following is the opinion at special term:
   Putnam, J.

Owing to many engagements I am unable to devote the time to write an opinion in this case. But I have read with care the points presented and considered the same.

I think a new trial on the ground of newly discovered evidence should be granted with some hesitation. When a case has been tried as this case was, with care and deliberation, the rights of the respective parties being represented by able counsel, and a verdict has been rendered, a court should scrutinize an application to open the case and grant a new trial on the ground of newly discovered evidence, and not allow such a motion to prevail, unless a case is made out within the rules established in such cases.

The rules which should govern on such an application are well settled. “ To constitute a case for a new trial on that ground, it must appear that the evidence has been discovered since the trial, that it could not have been obtained upon the former trial by the exercise of reasonable diligence, that the evidence is material to an issue involving the merits of the case, is not cumulative, and is so decisive in its character that there is a reasonable .certainty that on another trial it would change the result.” Roberts v. Johnstown Bank, 14 N.Y. Supp., 433; 38 N. Y. State Rep., 563.

The application for a new trial in this case is made on the ground of newly discovered evidence tending to show contributory negligence on the part of the plaintiff and also that the injury to the plaintiff’s left shoulder was in fact caused by her falling down stairs, nearly a year previous to the accident upon the bridge for which this action is brought

I think that a new trial should not be granted on account of the evidence of Charles A. Howard, which the defendant claims will show contributory negligence on the part of the plaintiff, for the reason that such evidence is not of sufficient importance or so decisive in its character as to render it reasonably certain that were a new trial granted it would change the result. Howard saw the plaintiff and her son in the wagon, the son driving, as he states, in a careless manner, at a point five rods from the bridge. At that point he passed the plaintiff and her son, the lines were hanging loosely, and, as his affidavit tends to show, the plaintiff’s-son was driving carelessly. But this was five rods from the place where the accident occurred. Howard does not assume to know "how the plaintiff’s son held the reins when he reached the bridge, or whether he was driving carelessly or otherwise at that point. I do not regard this evidence as important or decisive, or as likely to change the result on a new trial.

The defendant desires a new trial to produce witnesses it claims it has discovered who will show that the injury to plaintiff’s left shoulder existed prior to the bridge accident, and resulted from her falling down stairs nearly a year before that time. The same claim was made upon the trial and was extensively litigated.

For instance, the plaintiff was asked as a witness if in the winter of 1888 or 1889 she met with an accident, falling down stairs, to which she answered yes. And she further said that it produced a headache and caused her to be lame. But she claimed that the injury passed away after a few days. Dr. Smart was interrogated on that subject, and he testified that when he first saw plaintiff she told him that she had received an injury by falling down stairs. She struck her head. That she had continued to suffer some pain. Also, that the injury from the bridge accident was to her right side and shoulder; that the plaintiff then said that her left shoulder was all right. He remembered that fact distinctly. He swore that there was no soreness or tenderness in her left shoulder then, and that she did not complain of the left side. Sarah E. Berry testified as to the plaintiff’s falling down stairs in the winter of 1888 or 1889 ; that the plaintiff was confined toiler bed; complained of her head; that she said she struck on her head and shoulder. Olive Meeker also testified as to Mrs. Jackson’s falling down stairs. The witness was at plaintiff’s house within a month after the accident, and plaintiff told her that she fell down stairs and struck her head and shoulder, and so her shoulder was lame and she was not able to work. Plaintiff was at the witness’ house in the spring after she fell down stairs. The plaintiff could not then dress herself; could not get her hand behind her. The witness had to pin her clothes. It will thus-be seen that on the trial not only the question of defendant’s negligence in causing the accident at the bridge was litigated, but also the question of the extent of the injury to plaintiff, and the defendant sought to show that the injury to plaintiff’s shoulder, of which she complained, was caused by her falling down stairs in the winter of 1888 or 1889, and not by her falling at the bridge.

If the pleadings did not apprise the defendant which shoulder plaintiff claimed was injured by the accident at the bridge, it could by a motion before the trial have compelled the service of a bill of particulars or procured an order rendering the complaint more definite and certain. The defendant, however, made no such motion and went into the trial with the pleadings as they are. On the trial plaintiff claimed that the particular injury was to her left shoulder. Defendant, by tne evidence of Dr Smart- and the other witnesses mentioned, sought to show that that injury was produced by the fall down stairs and existed before the bridge accident. This claim was urged with great force upon the trial and was contested by the plaintiff. The defendant now has found other witnesses whose evidence will support the claim so urged by it upon the trial, that the injury to the plaintiff’s left shoulder was caused by her falling down stairs in 1888 or 1889 and not by the fall at the bridge.

After a careful consideration of the able brief presented by the defendant and a careful reading of the evidence given upon the trial and of the affidavits produced on this motion, I have reached the conclusion that the newly discovered evidence bearing upon the extent of plaintiff’s injury upon which defendant asks for a new trial must be deemed cumulative. The additional evidence of Dr. Smart which the defendant wishes to use on the trial is merely an amplification of his testimony as given. Substantially upon the trial Dr. Smart testified that plaintiff’s injury was to her right shoulder and not to her left; that she told him that her left shoulder was all right The defendant desires on a new trial to examine Dr. Smart more in detail and more fully than he was examined. The testimony of Sarah McElwain and Ella Eisner I think clearly cumulative. It is the same kind of evidence that was produced upon the trial, evidence of the admission of the plaintiff as to her falling down stairs and the injury produced upon her by that accident The defendant has found evidence which it aid not have upon the trial by which, on the new trial, it could make out a much stronger case than it made before. There is hardly a case ever tried but that one party or the other after the trial discovers evidence unknown before by which on a new trial such party could make a stronger case than on the first If in such cases a new trial was granted, litigation would never cease. I think the rules established by the courts and above cited are wise, and should be sustained. There should be an end to litigation. Ordinarily when a case has been tried and a verdict has been rendered, a new trial should only be granted in unusual cases where the newly discovered evidence would in all probability produce a different result and where it clearly is not cumulative.

I think in this case the evidence newly discovered, on which this motion is grounded, as to the extent of the plaintiff’s injuries is clearly cumulative, and I also think, in view of the affidavits presented Tjy the plaintiff and read on this motion, that it is very doubtful whether such newly discovered evidence on the new trial would change the result

I therefore conclude that the motion should be denied.

Matt C. Ransom, for app’lt; John P. Kellas, for resp’t.

Order affirmed, with costs, on opinion of court below.

Learned, P. J., Landon and Matham, JJ., concur.


author: Dugro, J.

text:
    Thomas F. Oakes, App'lt, v. Edward F. De Lancey, Resp’t.

      (New York Superior Court, General Term,,

      Filed July 2, 1891.)

    Deed—Description.
    A deed describing lands as bounded by a line running to a point on the shore of Long Island sound; “ thence running along said shore and sound as the same bend and turn easterly; and thence southerly to their intersection with ” another line, covers the premises to low water mark.
    Appeal from judgment in favor of defendant.
    Action to recover moneys claimed to have been overpaid on a land purchase. Plaintiff purchased of defendant a piece of land fronting on Long Island sound, claimed to contain 22 57-100 acres, at a certain price per acre. Defendant conveyed the same by a deed which described the land as bounded by a line running to a point on the shore of the sound; “thence running along said shore and sound as the same bend and turn easterly; and thence southerly to their intersection with the center line of De Lancey avenue, aforesaid.”
    A dispute having arisen as to the amount of land covered by the description, it was agreed that plaintiff should pay the full amount of the purchase price, and bring this action to recover for the alleged deficiency in acreage.

      Holmes & Adams, for app’lt; Martin J. Keogh, for resp’t.
   Dugro, J.

The complaint reads: “ The defendant being owner of real property hereinafter described * * * made sale thereof at public auction * * * at such sale, the plaintiff purchased the said premises for the sum, etc., * * * of $31.25 per acre.” Eo property is described in the complaint. If it be assumed that the property described in exhibit 1, which is attached to the complaint, is that which the complaint states will be thereinafter described, it is “property, at DeLancey’s Neck, in the town of Mamaroneck, Westchester county, N. Y., known as Vergemere, of about 22 57-100 acres.” This assumption will, for present purposes, be made.

The agreement which forms the basis of this action, and which is set forth in the complaint, provided that the plaintiff should recover the excess of the money paid over that which should have been paid for the actual contents in acres of the said premises at the rate of $31.25 per acre. Therefore, in order to be entitled to succeed in his action the plaintiff must have shown that the actual contents of the property at DeLancey’s Eeck, etc., known as Yergemere, of about 22 57-100 acres, was less than the stated number of acres.

Of what this property consisted does not appear, except as it is to be gathered from the plaintiff’s testimony, that he “ received a deed for certain premises known as Yergemere, in Mamaroneck, etc.” The premises described in the deed must, therefore, be taken as the premises which the plaintiff purchased, and whether these premises consist of less than 22 57-100 acres is thus the pivotal point in the case.

Eo question of title is raised, nor is any question as to the character of the sale presented. The question is, how many acres does the deed convey ?

Tor the reasons assigned by the learned judge at special term, we believe that the descriptive clause in the deed covered the premises to low water mark. Storer v. Freeman, 6 Mass., 435, does not seem to sustain the plaintiff’s way of reasoning.

The judgment is affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.