author: Brady, P. J.

text:
    William H. Ricketts, as Receiver, etc., Appl't, v. Daniel F. Wilson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    1. Bill of sale—Reformation—Pleading.
    A bill of sale executed with the intention of its having the effect of chattel mortgage will be so construed by a court of equity. The complaint alleging that the instrument was executed as a chattel mortgage, and that the parties at the time it was executed believed that it was for the security and not to pass the title absolutely, and that it was represented to-be a chattel mortgage, contains the necessary averments. An additional allegation of false and fraudulent representations'is not necessary for the' success of the action. It is enough if a mistake or error has been made, and the charge of fraud in such a case should be disregarded as surplusage.

      2. Court oe equity—Jurisdiction.
    It is a well settled principle of the courts of equity that when jurisdiction of an equitable subject matter has been once properly acquired, it will be retained until a full and complete disposition of the controversy. Following German Savings Bank v. Sharer, 25 Hun, 410. That the relief sought was one of which equity has cognizance, there can be no question. Citing Horn v. Keteltas, 46 N. Y., 606.
    Appeal from a judgment of the special term dismissing the complaint.

      Abram Kling, for app’lt; Townsend, Dyett & Enstein, for resp’ts.
   Brady, P. J.

Mary C. Coppinger, the judgment debtor, represented now by the plaintiff in this action, to secure the payment of $600 loaned to her by the defendants, pledged as security for the loan, certain goods, chattels and merchandise, and in carrying out the pledge executed a bill of sale, by virtue of which it is alleged the defendants took possession of, and converted the property. The intention of • the parties being, as alleged, that a chattel mortgage would be executed to secure the loan mentioned, this action was brought for the purpose of having the bill of sale, to which reference has been made, declared a mortgage.'

The complaint contained the necessary averments to present the facts on which the action was based, including the allegations that the instrument was executed as a chattel mortgage, and that the defendants, at the time it was executed, believed that it was for the purpose of securing the loan, and not to pass to any of the three defendants the title to the chattels absolutely. And further, that the defendants represented to Mary C. Coppinger, and Henry Coppinger, her husband, that the instrument by them to be executed was a chattel mortgage.

It is true there are also allegations that, relying upon these representations,. they were induced to, and did execute the instrument, and that the defendants knew the representations made by them were false and fraudulent at the time they were made.

The prayer is for a reformation of the bill of sale; that the goods be sold; "that the proceeds be applied to the payment and satisfaction of the defendants’ hen, and the surplus paid to the plaintiff; that the defendants account for all the goods and chattels so received by them from the Coppingers, and they or their proceeds delivered to the plaintiff.

The learned justice in the court below seems to have been controlled by the conviction that the plaintiff’s right to recover rested mainly upon the allegation of false representation, and dismissed the complaint for the reason that the charge made in that respect was not proved. This appears from the record; for when the plaintiff rested, the defendant’s counsel moved to dismiss the complaint upon the ground that there was no proof to support the allegation of fraud upon which the action was based. The court granted the motion and the plaintiff duly excepted. The allegation of fraud, which was the last of the averments contained in the complaint, was not at all necessary to the success of the action. It was enough that a mistake or or error had been made in the form of the paper of which the parties were cognizant, and which the plaintiff sought to have declared to be what it was really intended to have been or should have been.

As we have seen, all the necessary allegations to that end had been made and the charge of fraud under very well settled" principles should have been disregarded as surplusage. The court undoubtedly had jurisdiction, and the facts without reference to that charge were sufficient to call its power into exercise. In Graves v. Waite (59 N. Y., 156) the court stated the rule applicable to this and kindred cases by saying: “The plaintiff has stated facts constituting a cause of action upon contract, but mingled with the allegation of these facts are statements of fraud and fraudulent statements and representations of the defendant made as an inducement to enter into the agreement. They are foreign to the cause of action, and have no place in the complaint and did not affect the right of the plaintiff to recover for the breach of the undertaking.

In the case of The German's Savings Bank v. Sharer . (25 Hun, 410), Judge Daniels said it was a well settled principle of courts of equity that when jurisdiction of an equitable sub j ect-matter had once been properly acquired, it would retained until a full and complete disposition of the controversy had been made, and that the relief sought was one of which equity has cognizance, there can be no question. Horn v. Keteltas, 46 N. Y., 606.

The learned counsel for the defendant evidently contended in the court below*, as he did upon the argument of this appeal, that the gravamen of the action was the fraud charged in respect to the bill of sale and the consequent illegal conversion of the goods on the assumption of title contending that judgment was demanded upon that theory. He insisted, in other words, that the complaint was for fraud and not upon contract, and cited the case of Barnes v. Quigley (59 N. Y., 267) to sustain that contention, asserting the further proposition that the Code never intended the prosecution of a party for fraud who had failed in the performance of his contract, or when fraud was the basis of the action a recovery could be had for a mere breach of contract, citing a number of authorities to sustain this proposition.

This was the point which was urged and successfully. In the cases to which-he referred, selecting two as illustrations, namely, Barnes v. Quigley, supra, and Ross v. Mather, 51 N. Y., p. 110, it appeared that the complaints were for fraud and not upon contract. The court, in the first case, said: “The whole frame work is in fraud and the cause of action, as set forth, is based upon the false and fraudulent representations of the defendant by which the plaintiff was induced to surrender and give up to the defendant his promissory note.” And further, “while the court is liberal in disregarding technical defects and omissions in pleadings and in allowing amendments it does not permit a cause of actiono to be changed either because the plaintiff fails to prove the facts necessary to sustain it, or because he has mistaken his remedy, and the force and effect of allegations of the complaint.”

Here there was no mistake as to the cause of action; it was difficultly set forth independently of the charge of fraud, and there was no necessity to resort to that element in order to succeed. The theory upon which the case was tried was for these reasons an erroneous one and the rulings and decision of the learned justice presiding predicated if it were erroneous and the judgment must be reversed and a new trial ordered, with costs to abide the event

Bartlett and Daniels, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Catherine Mendel, Resp’t, v. Morris Mendel, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Divorce—Alimony—Contempt.
    While one is already in jail for a contempt in omitting to pay the sum due for alimony, and has no property which can be reached, and is unable to give security, a second order of a similar character will not be granted.
    Appeal from order punishing defendant for contempt.

      A. P. Wagener, for app’lt; H. T. Andrews, for resp’t.
   Per Curiam.

The defendant in this case was committed for a contempt for omitting to pay a sum of money due for alimony. At the time the motion was made he was then for a similar reason in the jail of this county.

It appears in the affidavit on behalf of the plaintiff that he had no property which could be reached, under section 1112 of the code, and was unable to give the security presented therein. We cannot understand what object can be attained by prolonging the imprisonment under the order that was made in this case, it appearing, as already suggested, that he had no property and was unable to give any security by which he could be permitted to avail himself of the privileges to be accomplished thereby. •

For these reasons the order should be reversed without •costs.


author: Van Brunt, P. J.

text:
    William H. Stallcup et al., assignees, etc., Resp’ts, v. National Park Bank of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    1. Set-off—Assignment for the benefit of creditors. ,
    In a suit by the assignee, in order to enable the defendants to sustain a set-off, the claim must have been one existing at the time of the assignment.
    2. Fraud—Rescission of contract—Intent.
    Where the defendants seek to rescind a contract, by means of which credit is allowed, on the ground of fraud because of insolvency, the. question is, what was the intent in obtaining the credit. If the plaintiffs believed that they would not be able to continue their business, it was fraud for them to obtain the credit, but it does not follow if they believed that they could go on, that they were not guilty of fraud. They must show, in addition, that such belief was founded upon some reasonable ground that they had reasonable cause so to believe. .
    3. Evidence—Fraudulent intent—Uncontradicted evidence—Not to BE SUBMITTED TO THE JURY.
    The issue being one of intent, is necessarily to be ascertained by an inquiry into the condition of the debtor, and therefore all evidence tending to throw light upon those subjects, is relevant in order to enable the jury to judge as to -what the intent was. If the evidence is uncontradicted as to a particular fact, no such fact could be submitted to the jury.

      4. Charge to the jury as to particular facts.
    c No rule exists which requires the court to charge jury as to particular facts, or that certain conclusions are to be drawn from isolated facts taken out of the proof.
    The firm of Lamborn & Gray had for a long time prior to the 24th day of December, 1883, been carrying on business as bankers at Alliance, Ohio, and had kept an account with the defendants, and on December 24, 1883, there was a balance due Lamborn & Gray of $4,322.24.
    On the day last named, said firm made a general assignment for the benefit of creditors, to the plaintiffs, who duly qualified and entered upon the duties of their trust and brought this action to recover said balance.
    The defendants resisted the collection of a part of the balance of the account on two grounds:

      First. That the defendants had a right of set-off arising upon the facts hereinafter stated.

      Second. That Lamborn & Gray having obtained discounts which form a part of the balance claimed, by fraud or by fraudulent suppression or concealment of their financial condition, the defendants had a right to rescind the contract of discount, and to retain the proceeds.
    It appears that for some time prior to December, 1883, Lamborn & Gray had been in the habit of making advances upon the. monthly pay rolls of the Cleveland, Youngstown and Pittsburg Railway Company. To repay these advances, Lamborn & Gray were accustomed to receive drafts drawn to their order by the railway company on its vice-president at New York.
    These drafts would be forwarded to the Bank of the Republic for collection, and the vice-president of the railway company would accept them, payable at said bank, and they, when paid, would go to the credit of the firm in the said bank.
    The evidence shows that these drafts were largely paid by advances made by the bank.
    Mr. Henry W. Ford, president of the bank, was also president of the railway company.
    Mr. Thomas T. Buckley, vice-president of the bank, was treasurer of the railway company, and Mr. E. H. Pullen, cashier of the bank, was secretary of the railway company.
    This course of business continued until the latter part of October, 1883, when, in consequence of certain communications requesting that drafts should be light and drawn on three or six days time, Mr. Lamborn came to New York and had an interview or interviews with Mr. Ford and Mr. Buckley at the Bank of the Republic.
    At this time the October drafts, amounting to some $28,000, were lying in the Bank of the Republic unpaid, but Lamborn claimed that he was ignorant of this fact and believed them to have been paid, although the evidence of Mr. Gray showed that they knew as early as November 19th, that the firm had not received credit for October drafts.
    Mr. Lamborn testified that he asked Mr. Ford what the trouble was with the drafts On the railway company and with the Bank of the Republic that they wanted them drawn on so little time—on three days or on six days—and why they wanted Lamborn & Gray to draw lightly against their account in the Bank of the Republic, and that Mr. Ford’s reply was:
    “There is some trouble in the bank. Pullen, the cashier, is fighting Buckley and me, ” and he said, “There are some of the bank people believe that he magnifies the advances of the bank to this railroad company,” and he said, “The possibility is, unless you favor us and we get over this little trouble—well, both Buckley and I will lose our places; and we want you to draw as lightly as possible until this difficulty is over.” He said, “Lawson is in Europe” (I think he said he was in Europe, on the ninth day of November), “ and the prospects are that the bonds will be sold. We regard it as a good enterprise, and the prospect is that the bonds will be sold, and then this difficulty will be over; but draw as lightly as possibile for the present against the statement or credit.” Mr. Ford also stated this in most positive and unequivocal terms, if I am not mistaken, because the advance Of $30,000 thereafter depended on this statement. He said : “All your drafts on the railroad company have been taken care of, and all the advances "that you may make, and all the drafts that you may send, accompanied with the proper vouchers, to complete the road to Acbo, will be taken care of to the last dollar, because (said Mr. Ford) the completion of the road is a necessary condition for the sale of the bonds;” and I think that he said this, that “ the road was to be represented, in the efforts to sell the bonds, as a completed road from Phalanx to Acbo.”
    Mr. Ford contradicted the evidence of Mr. Lamborn that he promised to take care of all the railway drafts.
    Subsequently drafts were drawn on the November pay rolls to the amount of $36,000, and paid by Lamborn & Gray, and forwarded to the Bank of the Republic.
    On the sixteenth day of November Lamborn & Gray drew their draft on the Bank of the Republic for $5,000, and on the nineteenth Mr. Ford, president of the bank, telegraphed that the bank had been compelled to refuse payment of this draft.
    Mr. Gray came on to New York on or about 21st of November, and had interviews with Mr. Ford and Mr. Buckley at the bank. Mr. Gray asked Mr. Ford why it was they didn’t protect their drafts in accordance with the arrangement made with Mr. Lamborn, and Mr. Ford said: “It is no use of talking, I am in trouble. Mr. Pullen and the directors of the bank-are after me, and they say if I pay out another dollar I may send in my resignation.”.
    After some further conversation Mr. Ford agreed to take care of the $5,000 draft if Lamborn & Gray would put up some collateral, which they did, together with their own note, and the draft was taken care of, though not in the Bank of the Republic.
    Mr. Gray also testified that Ford assured him that they, meaning the railway company, would be in funds in a very short time to pay all indebtedness, and that when he gave Ford his note for $5,000 as above stated, he stated that he would take care of the note when it matured, and send the note and collaterals back, and that he would, within ten days, place $10,000 to the credit of Lamborn & Gray in the bank.
    Mr. Gray further testified that he told Mr. Ford that if they had understood that they would not take care of the November pay rolls, that they would not have advanced upon them, because it was all their loose capital, and that he would have to go home and close up his affairs if he did not get it.
    On November 29 Lamborn & Gray wrote to the vice-president of the road that they could not possibly meet an acceptance for $3,500 then falling due, and on the third of December wrote to Mr. Pullen, cashier of the Bank of the Republic, that they were compelled to draw a draft for $3,000 in order to go through, and that “you must protect it, notwithstanding Mr. Ford writes not to draw, and to put off payments with our bank.”
    On the 5th of December, 1883, Lamborn & Gray wrote to defendants asking for discount of their note for $5,000 at ninety days, with several notes as collateral. The bank discounted some of the collaterals and returned the other collaterals with the $5,000 note.
    On the 10th of December Lamborn & Gray wrote to defendants, enclosing their own note for $5,000 for discount and collaterals to the amount of $6,200, consisting of note of Stanley & Hawkins for $3,200, and note of the Alliance Bagging Co. for $3,000, both endorsed by Lamborn & Gray.
    The bank discounted the collaterals and returned Lam-born & Gray’s note.
    On the 10th of December Mr. Gray wrote the vice-president of the railway company, asking him to devise some means by which he could get $5,000, as he did not wish to be mined, which was certain to come unless he got help.
    On the 24th of December Lamborn & Gray made an assignment.
    The note of Stanley & Hawkins, above named, was paid at maturity, but the note of the Alliance Bagging Company was not paid; and it is claimed by the defendants that Lamborn & Gray were at the time of obtaining this discount hopelessly insolvent, and that it was a fraud upon the defendants to obtain additional credit.

      Francis C. Barlow, for def’t and appl’t; Luden Birdseye and Benjamin H. Bayliss, for pl’ffs and resp’ts.
   Van Brunt, P. J.

In the foregoing statement it has not been thought necessary to state all the facts’ contained in the voluminous record before us, but simply such as will illustrate the exceptions which have been argued.

The claims of the defendants rest upon the right to set-off and the right to rescind upon the ground of fraud.

That the defendants have no right of set-off, the note upon which they claim their right of set-off not being one at the time of the assignment, seems to be established by several cases in the court of appeals directly in point. Beck- with v. The Union Bank, 9 N. Y., 211; Martin v. Kunzmuller, 37 id., 396; Jordan, admr., v. The National Shoe and Leather Bank, 74 id., 467. And therefore it is not necessary to discuss the proposition.

The questions of law raised by the exceptions taken to evidence and the exceptions to the refusal to charge of the learned judge relating to the defense of fraud, raise more serious difficulties.

The question which was to be submitted to the jury upon this branch of the case was, whether or not Lamborn & Gray had reason to believe, and did believe, at the time they procured this discount from the defendants, that they would be able to meet their obligations at maturity. If they did so believe, and had reasonable ground for such belief, then no fraud was perpetrated, but if they had no reasonable ground for such belief, or did not so believe, then they had no right to procure additional credit.

This issue is necessarily one of intent, to be ascertained by an inquiry into the condition of the" debtor, his hopes and expectations, and the basis of such hopes and expectations, and therefore all evidence tending to throw light upon these subjects is relevant in order to enable the jury to judge, placing themselves as nearly as possible in the debtor’s shoes, surrounding themselves by the circumstances which surrounded the debtor, as to what the intent of the debtor was.

Applying this rule to the exclusion of the letter of December 5, 1883, the ruling would seem to have been error.

It is true that the letter did not prove as a fact anything stated in it, but it was a letter from the Bank of the Re-

Íublic, written by one of its executive officers, informing jambom & Gray of the position taken by the bank in respect to their relations, and a notice that no further advances would be made by the bank to them.

In view of the previous relations of the bank to them, this letter was of great importance to Lamborn & Gray. Mr. Gray knew that the October railway drafts were not paid, and that the November railway drafts were not paid, amounting in all to the sum of $65,000, and this letter was notice that they need expect no accommodation from the bank.

The ruling rejecting this letter is sought to be upheld upon the ground that no proper foundation was laid for making the letter evidence. If this objection had been made at the trial it could"^easily have been remedied, as the record shows that the witnesses were in court who could have given the requisite testimony.

The only objection appearing upon the record was a general one, bringing up only the question of the materiality of the letter.

This ruling is sought to be sustained upon the ground that the letter contained numerous statements which required independent proof to establish, and also numerous statements which were wholly incompetent - and were entirely improper to be submitted to a jury.

It is undoubtedly true that the Bank of the Republic could not make, evidence in their own behalf in this way, but in coming to a conclusion as to the belief and the grounds thereof of Lamborn & Gray, the position of the Bank of the Republic, whether well taken or not, was an important element and could not be disregarded. Neither does the suggestion that, as far as the material parts of the letter are concerned, they were proved by Mr. Ford’s evidence, remedy the difficulty, because the manner in which the requests of the previous letter were rejected in the letter excluded is very different from the testimony given by Mr. Ford.

But there is a more important error which pervaded the charge of the learned court, and some of the requests to charge upon the part of the plaintiffs, and which were charged by the learned court and excepted to by the defendants.

The learned court charged the jury that the question was whether Lamborn & Gray, at the time of applying for this discount, had reasonable cause to believe that they were a solvent firm, or whether they knew themselves to be insolvent; and again, whether, on December 10, 1883, they had good reason and proper cause to suppose * * * , that money would be forthcoming to protect these drafts.

It is true that these charges were not excepted to, and if ' they stood alone the defendants could not have availed themselves of the fact that what Lamborn & Gray actually believed in reference to these matters was not submitted to the jury.

That the question which the jury was to pass upon was as to what Lamborn & Gray had reasonable cause to believe was accentuated by the twenty-fourth request of the plaintiffs, and which was charged and excepted to.

This request was as follows: If Lamborn & Gray either believed, or had reasonable cause to believe, that the drafts accepted by the Cleveland, Youngstown & Pittsburg Railroad Company, or its officers, for moneys paid by Lamborn & Gray for work and materials used in the construction of that road, were either paid, or were put to their credit in the Bank of the Republic, or would soon be paid or so put to their credit, that they were guilty of fraud or concealment, either actual or constructive, in accepting the discount of the Alliance Bagging Company’s note by defendant.”

_ The form of this request was erroneous, as it was entirely immaterial as to what Lamborn & Gray had reasonable cause to believe in respect to these matters if they did not so believe.

The question was as to their intent. If they believed that they would not be able to continue business, it was a fraud- for them to obtain this credit, but it does not follow that if they believed that they could go on, they were not guilty of fraud, they must show in addition that such belief was founded upon some reasonable ground; that they had reasonable cause so to believe. -

, This request entirely ignores the, necessity that they should have faith in their ability to go on, but instructs the jury that, if they had reasonable cause to believe the facts in the request stated, although they did not in fact believe them, no fraudulent intent could be inferred, which is not á correct statement of the rule of law..

The request also submits to the jury the question as to whether Lamborn & Gray believed, or had reasonable ground to believe, among other things, that the drafts of the railway company were either paid, or were put to their credit in the Bank of the Republic.

The evidence in the case was uncontradicted, that at the time of this discount they .knew that such drafts had not been paid, and had not been put to their credit in the bank, and therefore no such question could be submitted to the jury.

The error crept in because of the earnest endeavor of counsel to get the court to charge that this fact did not constitute a fraud or that fact, or the, other, thus causing the jury to lose sight of the facts of the case as a whole.

We know of no rule which requires the court to charge the jury as to particular facts, or that certain conclusions are to be drawn from isolated facts taken out of the proof, when the other facts of the case may modify materially the effect of the facts sought to be isolated, and this was persistently sought to be done in the case at bar, with the result that in many of the propositions, facts which might, in the opinion of the jury, materially modify those contained in the proposition, were not presented as part of the request.

For the errors above stated, we are of the opinion that the judgment must be reversed and a new trial ordered, with costs to the appellants to abide event.

Daniels, J., concurs; Brady, J., concurs in the result.


author: Brady, J.

text:
    Theodore F. Baldwin, Resp’t, v. Thomas Morgan et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Landlord and tenant—Rights of tenant to use walls for advertising.
    A tenant by his lease acquires the right to use the outside of the walls enclosing the demised premises for advertising. The scenes or pictures must not be unseemly or offensive. There being no restrictions in the lease, the tenant succeeds during his term to the use of the wall subject only to the right of the landlord to prevent waste. Following Biddle v. Dittlejield, 53 N.H ., 503.
    Appeal from an order continuing an injunction.

      John M. Bowers, for app’lts; De Lancey Nicoll, for resp’t.
   Brady, J.

The plaintiff, who is a tenant of the defendants, occupied the first story and basement of their premises known as 1159 Broadway, and forming part of the southwest corner of Broadway and Twenty-seventh street.

The premises were occupied by the plaintiff under two leases, by one of which the plaintiff leased the store for the sale or leather goods, and the other secured the basement under the store for the storage of manufactured leather goods. For the more successful prosecution of his business, the plaintiff caused to be painted on the Twenty-seventh street wall of the first story of the building which was embraced within his lease, as we have seen, certain pictures, signs and devices which he regarded as suitable and appropriate for the advertising of his wares. The pictures are somewhat original in their application, striking and impressive, and they seem to be well drawn, and to have been executed by a decorative painter of ability. The defendant Thomas Morgan, who represented the defendants, threatened to erase the pictures suggested, and the plaintiff, claiming that if the threats were carried into execution he would be injured in his business, procured an order restraining the defendants from interfering, with the signs and pictures mentioned, and requiring the defendants to show cause why the restraint should not be made permanent.

Upon the hearing, the defendants insisted that their premises were injured by; the signs or pictures, but the court determined to continue the injunction, and hence this appeal.

The proof establishes that the paintings or signs did not extend beyond the premises leased to the plaintiff, and the leases contained no restriction as to signs. The contention of the defendant seems to be that that portion of the outer wall enclosing the plaintiff’s premises is not leased, and that the paintings or signs have decreased the rental value of the premises. The wall, as it exists, is certainly a portion of the premises which were demised to the plaintiff,- and he succeeded during his term to the use of that' wall under his lease, subject only to the right of the landlord to prevent waste, as contended by the respondent’s counsel.

It is said in Taylord on Landlord and Tenant, page Iff 2, that a tenant by-me right of exclusive occupation becomes entitled to the premises in the same manner as the owner, except that he must do no act to the injury of the inheritance. In Wood on Landlord and Tenant, section 581, it is said that unless special reservation in certain particulars is made, the tenant succeeds to all the rights of the landlord. That they are annexed to the estate so far as the possession and enjoyment of the premises are concerned, immediately upon the commencement of his term, and it seems that an injury to the inheritance or heirs, must be some permanent or material alteration rendering it difficult, if not impossible, for the tenant when his term expires to surrender the premises in their original condition. 3 Paige, 260.

The precise question which may be regarded as presented for consideration in this case, namely, the right of the tenant to use the outside wall of the premises demised to him, for advertising purposes, has not been decided in this state. It has been, however, in a very well considered case in New Hampshire, which is reported in the 53d N. H., p. 503, under the title of Riddle v. Littlefield. There it appeared that the defendant had leased the outer side of the wall to three persons for advertising purposes. The plaintiff claimed the amount of rent received by him for the use of the outside wall, and the question was as to his right to recover.

The courts held that the tenant had acquired by his lease the right to the use and occupation outside the walls of the building to that portion of the tenement which included the store. The outside wall of the building leased passed by the lease as much as the inside of the wall. The outer side of the wall, said the court, is but one side of the same wall that has a near side, and the removal of the wall removes both sides, and it was further said of the .tenant “he may suspend his wares upon the building, if nobody is incommoded thereby, and he may cover the wall with his advertisements of merchandise which he keeps for sale there, if he does not injure the building or obstruct the passage, or even the public eye by unseemly occupations or otherwise violate the laws.” This doctrine is stated in Silvan on Landlord and Tenant at page 48.

The scenes or pictures being germane to the plaintiff’s business, and not being unseemly or calculated to' offend the public eye and being indeed rather attractive and amusing, it would seem that the defendant must submit •to the inconvenience, if there be any, of the continuance of these signs or pictures. The record does not disclose any predominating facts favoring interference with the plaintiff’s rights in the manner in which they have been exercised, and we are not called upon, therefore, to reverse the order appealed from, which we think should be affirmed, but as the question is novel with ten dollars costs and disbursements to abide the event.

Daniels and Van Brunt, JJ., concur.


text:
    In the Matter of the Judicial Settlement of the Account of Benjamin H. Kendrick, as Administrator, etc.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Statute op limitations—Code Civ. Pro., § 376—Administrator’s account.
    In Ms account the administrator’s simply stating that the claim had been presented and that he disputed it, is not a sufficient acknowledgment under section 376, Code Civil Procedure, to prevent the running of the statute of limitations.

      S. H. Randal, for app’lt; H. G. Atwater, for resp’t.
   Per Curiam.

It is true that the learned surrogate, in nis Opinion, overlooked the date of the verification of the accomit of the administrator, but that does not alter the legal question.

It is true that the administrator put in his account the judgment in question as a claim presented and unpaid, but lie adds that the claim is disputed.

The Code, § 3J6, requires an acknowledgment of an indebtedness of some part of the amount recovered by the judgment or decree, to prevent the statute running, which • acknowledgment must be in writing, signed by the party sought to be charged.

The administrator, in his account, simply stated that this claim had been presented and that he disputed it.

It is difficult to see how from such facts an acknowledgment of an indebtedness can be spefied out.

The only other points raised have been satisfactorily answered in the opinion of the learned surrogate.

Order affirmed, with costs and disbursements.


author: Daniels, J.

text:
    The People, etc., Resp’ts, v. Andrew J. Wightman, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Extortion—Penal Code, § 558—Indictment—Evidence.
    If the commission of the crime wholly depended upon the language and import of the letter itself, and the letter as written and forwarded for the purpose of indemnifying or protecting the person named in the indictment, no offence could have been committed. But an indictment averring further the fact that the object in writing and sending the letter was to extort and gain money by falsely and publicly accusing one of criminal conduct, described and set forth in the counts, and the evidence tending to establish these acts, as well as the writing a.nd mailing the letter, bring the case within § 558 of the Penal Code.
    Appeal from judgment of the court of oyer and terminer convicting the defendant of a violation of sec. 558 of the Penal Code of the state of New York.

      Thomas M. Tyng. for app’lt; Mackenzie Semple, Ass’t. Disk Att’y, for people.
   Daniels, J.

The case containing the exceptions as it has been settled, states that the people to maintain the, issues on their part introduced evidence tending to prove the acts charged in the first five counts of the indictment. At the close of the evidence given to prove the charges contained in those counts, an application was made for the acquittal of the defendant on the ground that the acts charged in such counts and proved by the evidence were not sufficient to constitute a crime and that the evidence was not sufficient to warrant a conviction of the crime therein charged in that the letter or writing did not threaten to do any or either of the acts specified in sec. .558 of the Penal Code. The motion was denied and to the decision made the defendant excepted.

These were the only objections taken to the case made against the defendant at the trial and they present the simple question whether proving the acts set forth in the first five counts of the indictment constituted a crime under this section of the Code.. To determine this part it becomes' necessary to examine these counts of the indictment, and' such an examination, particularly of the third, fourth and fifth "counts discloses the acts of the defendant to be such as to include the sending and causing to be forwarded" to and received by one Charles C: Sears, the letter contained in each of these counts of the indictment thereby threatening falsely and unjustly to cause and procure him to be put-to great charge and expense of his moneys and give security for the maintenance of a child of which, the woman named in the counts was alleged to be then pregnant, and that the appellant with the other defendants knew the contents of the letter and intended by means thereof, to extort and gain money from the person .to whom it was written and by whom it was received. That is the substance of the third count of the indictment. The fourth is very much the same in substance; while the fifth contains similar allegations averring the writing and sending of the letter threatening to expose Sears to and to impute to him disgrace, and to falsely and publicly accuse him of certain immoral conduct which, if true, would tend to and would degrade and disgrace him. To this statement is superadded the averment that the letter was sent and forwarded to and received by Sears and contained the charge of improper conduct included in the other counts and that this was done by the defendants with the intent and by means thereof to extort and gain money from Seal’s.

The case was argued by the defendant’s counsel upon the theory that it wholly depended upon the language and import of the letter itself. If this position were sound and the letter were written and forwarded for the purpose of indemnifying or protecting May A. Thatcher, named in the indictment, no offense would have been committed and the argument of the counsel would undoubtedly be sound. But that is not the case as the indictment presented it, and the evidence tended to prove the facts, for the averments contained in the indictment extended far beyond the writing and sending of the letter for any purpose of protection or indemnity to this woman, and averred the facts to be that the object in writing and sending the letter to Sears was to extort and gain money from him by falsely and publicly accusing him of the immoral conduct described and set forth in those counts. These were as much the acts referred to, and which the evidence' tended to establish, as the writing and mailing of the letter itself. They were each of them distinct parts of the crime intended to be charged, and in substance they disclose the facts to be. that the appellant, with the other defendants, caused this letter to be written and sent to Sears, intending thereby to extort money from him by the threat communicated through the letter by publicly and falsely making the accusation mentioned against him to render this extortion successful.

These are the prominent acts set forth in the indictment and bring the case within this section of the Penal Code by which it has been declared to be a crime for any person knowing the contents thereof and with intent by means thereof to extort any money or other property or to do, abet or procure any illegal or wrongful act, to send, deliver or in any manner cause to be forwarded or received any letter or writing threatening to expose or impute to any person any deformity or disgrace. The indictment was framed under this construction and language of the statute. By its allegations it brought the case within those provisions, and as the evidence sufficiently tended to prove them to support the verdict rendered by the jury, the judgment from which the appeal has been taken should be affirmed.

Van Brunt, P. J., Bartlett, J., concur.


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    Albert P. Stewart, App’lt; John W. Steck et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    1. Appeal—Review op record.
    The general term will not say whether or not the provisions of the Code have been violated when the order in question does not appear upon the record.
    2. Attorney’s lien—Substitution op new.attorney.
    Where the attorney has agreed to take his fees out of a fund to be recovered, and the substitution of a new attorney is obtained, the former retains his lien for services upon the fund recovered on the termination of the litigation.
    This action was brought by the appellant herein, Mr. Augustus P. Wageneiy on behalf of Albert P. Stewart, as colonel of the eleventh regiment, New York State Militia, the subject-matter thereof being a regimental fund in the hands of the defendant. After a considerable length of time, and various negotiations for settlement, the plaintiff became dissatisfied with his attorney and sought to have him removed, claiming that his attorney stood in the way of a settlement of the cause of action, and that the said attorney had made an agreement to carry on the litigation and wait for his pay until the fund was recovered, and then to accept a moderate compensation therefor. That in violation of this agreement he had demanded sums of money as a condition of further proceedings, which compelled the plaintiff to come to a settlement with the defendants, and that the plaintiff’s attorney, upon said settlement, made exorbitant demands in respect to his fees. The motion for a substitution came up before Mr. Justice Andrews, who denied the motion until the plaintiff’s claim for services was disposed of, and ordered a reference to determine the amount to Mr. R. M. Stover, an attorney of this court, as the parties could not agree upon the same.
    Mr. Stover thereupon reported that the attorney was entitled to $280 as his fees.
    The attorney having refused to take up this report, a motion was made to allow the plaintiff to pay the referee’s fees upon said reference.
    Decision was made that if the plaintiff should take up the report a substitution would be allowed resetting the present attorney’s right to be paid the full amount out of the fund thereafter.
    Subsequently, on the 3d of June, 1886, an order was entered reciting the foregoing facts, and reciting that it then appeared to the court that the plaintiff had taken up the report and complied with the condition contained in the last named decision, by which order it was ordered that J. K. Hayward, Esq., be substituted in the action in place of Augustus P. Wagener, as attorney for the plaintiff, and that said Wagener forthwith deliver to said Hayward all the papers in the action, and that Wagener retain his lien, not exceeding $300, upon the fund in question for the amount which will be found due him upon the confirmation of the referee’s report herein, which amount so found due is to be paid him out of said fund on the termination of the litigation in this action. Prom this order Mr. Augustus P. Wagener has taken this appeal.

      Augustus P. Wagener, app’lt, in person; J. K. Hayward, for resp’t.
   Van Brunt, P. J.

As to the objection that the court erred in overruling the stay claimed for non payment of costs of an order theretofore made, it is sufficient to say that no such order appears upon the record, and this court therefore cannot say as to whether provisions of the code were violated or not in reference thereto. It is true that Mr. Justice Andrews, upon hearing the motion before him, decided that a substitution could not be ordered until the claim of the attorney for services was disposed of; but he did not decide upon that motion that the agreement claimed by the plaintiff, that his attorney had undertaken to carry on the litigation and wait for his pay until the fund was recovered, had not been established.

All that he decided was, that some provision should be made for the attorney’s services before the substitution should be ordered. Upon the coming in of the referee’s report, Mr. Justice Donohue seems to have held that the contention of the plaintiff that the payments of the attorney were to be made out of the fund was established, and after the amount of the fees of the attorney had been ascertained by the referee, he provides for the substitution, and that the plaintiff’s attorney shall retain his lien upon the fund which was the subject matter of the litigation to the extent of the fees which the referee had reported.

In this way all the rights of the attorney seem to have been protected. He was entitled to the payment of his fees out of the fund. Those fees were duly ascertained by a reference, and, upon being ascertained, they were, by order of the court, made a. lien upón the fund, to be paid out of the fund on the termination of the litigation.

If the agreement, which was claimed upon the part of the plaintiff in the action in reference to the terms of the attorney’s compensation, was established, this was all that the attorney could require, and the order secured to him all the rights to which he was entitled.

The order appealed from must be affirmed, with costs.

Brady and Daniels, JJ., concur.


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    Silver Mining Company, Resp’t, v. De L’Orme Knowlton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Reference—Pleading—Accounting—Additional allegations.
    Where it appears from the action that the defendant is rightfully in possession of money or property, either in a fiduciary capacity or otherwise, in accord with the provisions of an agreement made with the plaintiff, and the action is brought for an accounting, additional allegations charging conversion or wrongful appropriation to his own use, are mere surplusage, and may be disregarded. Following Seyelken v. Meyer, 94 N. Y. 473; Dilman v. Shall, 61 ill , 56.
    Appeal from an order referring cause.

      James B. Silkman, for def’t and app’lt; Morgan & Worthington, for pl’ffs and resp’t.
   Brady, J.

The order of reference was applied for upon an affidavit, in which it was stated by Mr. Morgan, one of the plaintiff’s attorneys, that the action was brought for an accounting by the defendant in respect to moneys received by him as treasurer of the plaintiff, and to recover such moneys as upon the accounting should be found to be due, but that the trial would necessarily involve the taking and stating of a long account. The allegations contained in the complaint lead to that conclusion. The defendant is charged with the receipt of large sums of money as treasurer of the plaintiff, being the proceeds of subscriptions to its capital stock, the sale of gold and silver ore and bullion, the product of its mines and of loans made to it by various persons, the total amount whereof exceeded the sum of |l00,000. It is true that there are allegations that he deposited and commingled those moneys with his own, and that he wrongfully paid out and applied large sums of money in his hands, and that he retained and converted to his own use other large sums without the authority, direction, sanction or knowledge of the plaintiff.

But these allegations did not change the character of the action, the gravamen' of which is the receipt of money and property which has not been accounted for, and the statement of which it is the right undoubtedly of the plaintiff to demand. When it appears from the action that the defendant is rightfully in possession of' money or property, either in a fiduciary capacity or otherwise, in accord with the provisions of an agreement, contract or arrangement, made with the plaintiff, and an action is brought for an accounting, additional allegations charging conversion or wrongful appropriation to his own use are mere' surplusages and maybe disregarded. Segelken v. Meyer, 94 N. Y., 473; Dilmar v. Shall, 61 id., 56.

For these reasons, the order appealed from should be affirmed.

Daniels, J., concurs._


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    Carl L. Recknagel et al., Resp’ts, v. Pedro Le Cocq et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Evidence—Sale by sample—Action for money had and received.
    The sale having been made by sample, and payment having been made on receipt of the goods not of the quality of the sample, they were re-sold on the sellers’ refusal to take them back and the amount realized was credited on the payment. In an action to recover the balance remaining due, to prove the amount realized by the vendee on the sale, it is error to exclude the testimony of the vendee as to what he received from the sale on the ground that the auctioneer should show for how much the goods were sold.
    Appeal from judgment of the court at circuit dismissing complaint.

      DaCosta & Guthrie, for app’lts; William H. Toumley, for resp’ts.
   Per Curiam.

The plaintiffs purchased of the defendants a quantity of coffee, per sample, which was to arrive, and paid for the coffee by a draft on London. Upon the arrival of the coffee it was examined by the plaintiffs, and they discovered as alleged, that it did not conform to the contract as made, of which the defendants were duly notified and who declined to take the coffee back. Thereafter on notice to the defendants the coffee was sold by the plaintiffs on account of the defendants, upon which sale they realized as they allege in their complaint $12,774.56 which they applied in the reduction of the purchase price of the coffee, which was $14,538.68, which they paid in advance, leaving a balance of some $1,764, for which they brought this action.

On the trial, one. of the plaintiffs, Mr. Gustav A. Eecknagel, was examined as a witness, and on cross-examination having stated that the shipments of coffee were sold at auction, was asked whether he had received any amount of money since October 1, 1881, which he applied on account of the purchase price as alleged in the complaint, to which the defendants counsel objected. He was then asked ‘ ‘ have you received any part of the purchase-price of the coffee namely, $14,538.68 ?” To which he answered that he had. He was then asked ‘ ‘ How much have" you received ? ” This question was objected to and excluded upon the ground as stated by the court that the auctioneer would show how much the coffee was sold for, and how much was received for it, to which ruling the plaintiff’s counsel then and there duly excepted.

The complaint was dismissed substantially upon the ground that the plaintiffs did not prove what they received for the coffee sold, and hence the importance of the question which was rejected and to which exception was taken. We think the exclusion of that question was error. It was not absolutely necessary that the auctioneer should be called because the question was asked of one of the plaintiffs and in reference to the amount received by him; information which from him was very properly sought.

For those reasons, without considering any of the other exceptions in the case," it is incumbent upon us to reverse the judgment.

The judgment should be reversed and. a new trial ordered with costs to appellant to abide event.


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    Marie Dietrich, Adm’x, etc., Resp’t, v. Jules Drentel, App’It.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    1. Pleading — General denial in an action for goods sold and DELIVERED.
    In an action brought to recover an alleged balance of account for goods sold and delivered between April 4, and August 11, 1879; as to the delivery of the goods themselves, the parties are restricted to the dates mentioned in the pleadings, but under a general denial, the defendant has a right to prove any state of facts going to show that the allegations in the complaint were untrue, as to the delivery and promise to pay.
    3. Evidence—Terms of sale proven under general denial.
    In order to show what were the terms under which the sale was made, the defendant may prove any agreement or contract entered into, in reference to the delivery of the goods prior to the earliest date alleged in the complaint, in order to show what the terms and conditions of the sale were.
    This is an action brought to recover an alleged balance of account for goods sold and delivered between April 4 and August 11, 1879, to the defendant by one Alexis Poiret, which cause of action was duly assigned to Louis Dietrich, who was the plaintiff in this action at the time it was commenced.
    The defendant, by his answer, denied each and every allegation in the complaint and alleged payment.
    The action was tried before a referee, and pending such trial the plaintiff died, and the action was revived in the name of the present plaintiff as administratrix. Subsequently the referee reported in favor of the plaintiff for the -amount claimed and interest.
    The defendant, upon the trial of the action, sought to prove the relations existing between the defendant and Poiret, the assignor of the claim, prior to the 4th of April, 1879, and to show the arrangement under which their dealings were carried on prior to April 4, 1879, and that no new arrangement was made between them as to the dealings subsequent to April 4, 1879. This evidence was excluded by the referee upon the ground that “Inasmuch as the complaint claims from April 4, 1879, and the answer is a general denial; inquiry must be limited to the goods delivered from the 4th of April, 1879.”
    To this ruling of the referee the defendant duly excepted, and this appeal brings up this exception, with others.

      Charles Robinson Smith, for app’lt; Mr. Suydam, for resp’t.
   Van Brunt, P. J.

It has not been considered necessary in the foregoing statement to refer to the various other exceptions which were argued upon the appeal, the one above referred to being fatal to the judgment which has been rendered.

The learned referee seems to have proceeded upon the theory that no evidence whatever could be given in relation to any agreement which might have been entered into prior to the 4th of April, 1879, because the complaint limited the cause of action therein set forth to goods delivered subsequent to the 4th of April, 1879. The defendant sought to prove by the evidence objected to, that there had been dealings between the the defendant and the plaintiff’s assignor prior to the 4th of April 1879, and that goods had been delivered by the plaintiff’s assignor to the defendant prior to that time, under a certain agreement, and that no new arrangement in reference to payment was entered into between the parties in relation-to the goods delivered subsequent to the 4th of April, 1879.

The learned referee evidently erred in excluding this testimony. It is true, that as to the delivery of the goods themselves the parties were restricted to the dates mentioned in the pleadings, but under the general denial the defendant had a right to prove any state of facts going to show that the allegation in the complaint was untrue, that the goods were delivered by the plaintiff’s assignor, and that he, the defendant, promised to pay the price therein named. If any agreement or contract has been entered into in reference to the delivery of goods prior to the fourth of April, and the goods in question were delivered thereunder, it is clear that the defendant would have the right to prove that agreement, in order to show what the terms and conditions of the sale were, or whether it was to be considered in view of that agreement as any sale whatever.

This by the ruling of the referee, the defendant, was precluded from showing. The question was repeated more than once, and evidence of an admission which was made by the plaintiff’s assignor in reference to the arrangement between the defendant and the plaintiff’s assignor under which goods were purchased and delivered, evidence entirely pertinent to the general denial, and the question of payment was excluded upon these same grounds.

It is urged in answer to this objection that at folio 31 the evidence that the relations prior to April 4th as between the defendant’s and the plaintiff’s assignor were exactly the the same as subsequently was admitted, but the referee excluded testimony tending to show what that arrangement which existed prior to April 4, 1879, was and, therefore, although the evidence was offered establishing that the arrangement wasffhe same before April 4, 1879, as it was subsequent to that date, the evidence as to what the arrangement was, was excluded.

This seems as has already been stated to have been error, as it precluded the defendant from showing the terms and conditions under which the goods referred to in the complaint were purchased and delivered. In view of the conclusion to which we have arrived in reference to this exception, it is unnecessary to consider the other objections Which were urged by the appellant upon the argument of this appeal.

The judgment must be reversed with costs to the appellant to abide event, and the case referred back to a new referee to hear and determine.


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    Solomon Marx et al., Resp’ts, v. Bernard Spaulding and Robert W. Tailer, a Witness, App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Contempt—Code Civ. Pro., § 2460—Examination op witness in special PROCEEDINGS.
    Although a witness, under section 2460, Code Civil Procedure, cannot refuse to answer certain questions, yet he will not be required to sign his deposition when his so doing might, in view of some authorities, subject him to legal liability not otherwise existing.
    Appeal by Robert W. Tailor, a witness, from an order punishing him for contempt.

      Burnett & Whitney, for app’lt;'&'. Untermeyer, for resp’t.
   Per Curiam.

We think the order in this case should be affirmed. The provisions of section 2460 of the Code authorized the examination which was contemplated by the questions which were objected to, and which the learned justice in the court below decided to be perfectly proper.

The section referred to provides that the witness shall not be excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud or to prove that he has been a party or privy to or knowing of a conveyance, assignment, transfer or other disposition of property for any purpose, or that he or another person claims to be entitled as against a judgment creditor or a receiver appointed or to be appointed in a special proceeding to hold property derived from or through the judgment debtor. And this embraces the object in view by the examination.

We think, however, that the witness should not be required to sign his deposition, inasmuch as his so doing might, in view of some authorities, subject him to a legal liability not otherwise existing.

The order to be entered upon this appeal should contain a provision to the effect that the witness shall not be required to sign his deposition, and that his examination shall be without prejudice to any of his legal rights; and the order as so modified should be affirmed, without costs to either party.


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    Catherine McIntyre, App’lt, v. Charles G. Clark, Resp’t. Same v. Same.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Dower—Action for—Code Civ. Pro., § 1613.
    The sum having been ascertained and fixed by the final judgment, the court has no power to alter such final judgment by providing that a party entitled to dower should receive one-tliird of the net rents which should be actually received from the property and no more.
    Appeal from order of the special term modifying decree.

      L. L. Kellogg, for app’lt; Hoffman Miller, for resp’t.
   Per Curiam.

Section 1613 of the Code requires that a fixed sum equal to one-third of the rental value of the property, shall be ascertained by the court and specified in the final judgment which sum shall be paid to the plaintiff annually, and that the sum so to be paid was to remain a charge upon the property during the natural life of the party entitled to dower. This sum having been ascertained and fixed by the final judgment the court had no power to alter such final judgment by providing that a party entitled to dower should receive one-third of the net rents which should be actually received from the property and no more.

The order should be reversed, with ten dollars costs and disbursements.


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    In the Matter of the Estate of Robert Soutter, Deceased.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    1. Executors and administrators—Uncollected assets.
    After the discharge of an executor and the revocation of his letters, if there remain uncollected assets his successor is the proper party to reach them.

      2. Same—When decree discharging, will not be opened.
    In the absence of established fraud, a decree discharging an executor will not be opened.
    Appeal from order of surrogate denying a motion to open decree.

      Lewis Sanders, for app’lt; Stewart L. Woodford, for resp’t.
   Per Curiam.

The learned surrogate has stated in the second branch of his opinion successively the grounds upon which the motion should be denied. There is no such proof of fraud as would justify the court in vacating this decree. The executor has been discharged, his letters have been revoked, and if there are uncollected assets, his successor is the proper party to reach them. There is no proof but that the moving party knew or might have known every fact before the decree of March 10, 1884, upon which she now bases this application.

The cases of Matter of Tilden (98 N. Y., 434) and Matter of Hawley (100 N. Y., 206) seem to hold that in the absence of established fraud a decree of this nature should not be opened.

Order appealed from affirmed, with costs and disbursements.


author:
Van Brunt, P. J.
      Brady, J.

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    Hannah Cohen and Abraham Cohen, as adm’r and adm’x, etc., App’lts, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Negligence—Liability of city for granting without authority a LICENSE TO KEEP A WAGON ON THE STREET—INDEPENDENT ACTS— Notice.
    Where acts are independent and separate, the consequences of each act end where it is performed, and the responsibility begins anew on its repe-: titian. To make the city as licensor responsible for an injury caused by its licensee, some evidence tending to show knowledge on its part or notice of its carelessness must be shown. Brady, J., dissenting.
    This action was brought to recover the damages sustained by the next kin of Pischel Cohen in consequence of injuries sustained by him in the public streets of the city of New York.
    The facts relating to the accident seems to be as follows: In April, 1879, the defendants granted a license to one Michael Marks to store a wagon, used by him in his business, when not in use, in front of his grocery store in Attorney street, in the city of New York. Under that license Marks was accustomed to keep the wagon in the street next to the curb in front of his store, and to tie up the thills of the wagon and fasten them with a string. On October 20, 1879, at 6:30 A. m., the wagon, of Marks was standing in front of his store and the plaintiffs’ intestate was passing along the sidewalk, and the thills of the wagon were lifted and fastened up with a string or piece of clothes line; that, at the time, an ice wagon was coming down Attorney street, south from Houston to Stanton street, and at the same time another wagon, loaded with coal, was coming north up Attorney street from Stanton street.
    The ice man did not want to give a chance to the coal man to pass, so he hit his horses to go as fast as they could, so as not to give the coal man any room. The street was narrow and the ice man’s wagon caught somewhere with the grocery wagon wheels and turned it around so that the shafts came down upon the sidewalk and struck the plaintiffs’ intestate with such force on his head as to cause his death.
    The evidence showed that the wagon was in use two or three times every day, and that it was the habit of Marks to leave the wagon in that place when it was unemployed, with the shafts tied up in the manner described. The plaintiffs, by their testimony, claim to show that.the string or rope with which the thills were fastened, was not sufficiently strong to be used for that purpose. The defendants contended that the approximate cause of the accident was the fast and careless driving of the ice wagon which came in collision with the grocery wagon, and that the testimony was insufficient to authorize a jury to find that the city had notice of any unsafety or insecurity in the condition of the wagon, or that such insecurity had existed for so long a time, that notice thereof could be implied. The court, upon the trial of the case, dismissed the complaint, and from the judgment thereupon entered, this appeal is taken.

      N. E. Chedsey, of counsel, for app’lts; David J. Dean, of counsel, for resp’ts.
   Van Brunt, P. J.

This action was previously tried, and came before this general term upon appeal from a judgment rendered in favor of the plaintiff. Upon that appeal it was held that even though the city had no legal right to grant license to store or keep the wagon in the street, still its liability for the particular injury which caused the death of Cohen could not be sustained upon proof of the mere fact of granting license, as that fact was not the immediate cause of the injury, such injury having resulted from the negligent driving of the ice wagon, and the insufficient manner in which Marks had tied up the thills of his wagon.

It was further held, that to make the city responsible for the injury, some evidence tending to show knowledge on its part or notice in some form of the insecure or careless mode in which the wagon was stored in the street, must be shown. Having in view the law thus laid down upon the previous appeal in this case, it is necessary to consider whether there was any evidence from which the jury would have been authorized to have inferred that the city had notice of the insecure manner in which the thills ' of Marks’ wagon were tied at the time of the accident in question. In considering this question, we must bear in mind the fact that this wagon was used two or three times during the day, and that the thills were tied up after such use. There is no evidence going to show that the same fastening was used upon every occasion. Upon the contrary, the only inference to be drawn from the evidence is, that it was not tied up by the same string or rope , upon every occasion. If this is the fact, then when can it be said that notice as against the city commenced to run. Each time, the thill was tied up was an independent and separate act, which when the wagon ivas used, the consequences of that act ended when the thills of the wagon were tied up anew; then responsibility for that act commenced. It appears from the evidence in this case that the wagon was in use on the day before the accident- happened; that the shafts were tied up that night; that this accident happened at half-past six the next morning.

Now even if the shafts were improperly secured, sufficient time had not elapsed between the putting of the shafts in this insecure position, and the happening of the accident, to justify the jury in finding, that the city had had notice. _ And notwithstanding the expression Contained in the opinion when the case was before this court ‘ ‘ that if the thills had been securely and properly fastened, as they ought to have been, the fastenings would not have been _ broken by the blow which turned the wagon partially around and threw down the thills with such violence as to occasion the fatal injury,” it would seem that in the securing and fastenings up of the thills, that the owner of the wagon had no right to anticipate the severe shock to which the fastenings were subjected by the wagon being run into as was described by the witnesses. It would seem that the cause of the accident was the negligence of the driver of the ice wagon and not, by the negligence of the owner of the wagon in not tying up the thills of his wagon with a rope sufficiently strong to stand such a shock.

The evidence in the case therefore seems to fail to show spell notice to the city as would justify the plaintiffs in recovering.

Judgment appealed from should be affirmed, with costs.

Daniels, J., concurs.

Brady, J.

(dissenting).—I think the use of the street by the owner of the wagon was a continuous one and for so long a period as to establish constructive notice of such use by the city and of all the consequences which were likely to result from such use. The wayfarer is entitled to protection and a violation of this obligation should be punished whenever the city is chargeable with notice of an existing danger which ultimately does him injury.


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    In the Matter of the Estate of Sarah Hart, Deceased.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Executors and administrators—Revocation op letters.
    Mere insolvency does not require the revocation of letters testamentary.
    Appeal from order of surrogate, denying motion by Laura E. Byrne, to revoke letters testamentary, issued to Joseph Hart, and to compel the filing of an inventory and an accounting.

      Henry Wehle and Charles Goldzier, for app’lts; Henry M. Goldfogle, for resp’ts.
   Per Curiam.

We think the executor should file an inventory and should be required to account, but as the surrogate has provided for a renewal of the motion in respect to these matters, there is no occasion to interfere with his order. So far as the application to remove the executor is concerned, it is well settled that mere insolvency does not require the revocation of letters testamentary; and, except the proof that the respondent is insolvent, no facts are stated in support of the allegation that his circumstances are such as not to afford adequate security for the due administration of the estate.

Order affirmed, but without costs to either party on this, appeal. _


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    Estelle D. Bowen, Resp’t, v. Howard M. Durant, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    Partition—Agreement to consent to the jurisdiction op the courts OP THIS STATE, THOUGH PART OP THE LAND BE SITUATED IN OTHER STATES.
    By an agreement not to question the jurisdiction of the courts of this state in a partition suit, some of the land being situated in other states, and not to institute similar suits in those states, on the performance of all the conditions of the agreement by one of the parties, the other will be estopped from denying the jurisdiction of the courts of this state and be precluded from bringing similar actions in the other states. He will not be heard to say that because certain other parties are not parties to this agreement, that the provisions therein cannot be carried into effect.
    In April, 1885, Charles W. Durant, residing in the city of New York, died, seized of certain lands described in the complaint hereafter mentioned, situated in New York, Nebraska and Iowa. Mr. Durant left a last will and testament, and a codicil thereto, which was duly admitted to probate by the surrogate of the city of New York on the 18th of July, 1885. The plaintiff began a contest over her father’s will, and this resulted in an agreement between the plaintiff herein and her brothers Frederick C. Durant, Charles W. Durant and Howard M. Durant, bearing date the 16th of June', 1885, which agreement resulted in the withdrawal of opposition to the probate of said will and the codicils thereto, upon the terms and conditions therein provided. Amongst other things, it was provided by said agreement, that if an actual partition should not be made of the real estate of the testator by agreement on or before the 1st day of January, 1886, the plaintiff herein should at once file a complaint and lis pendens for a partition thereof, and should prosecute such suit to judgment with all reasonable speed, and the other parties to the agreement stipulate not to commence such a partition suit unless the plaintiff neglected to do so for one month after January 1, 1886.
    It was further provided by the said agreement that said partition suit should be brought for the purpose of partitioning aE the real estate of the testator, whether the same was situated in the state of New York or elsewhere, and that all necessary consents should be executed by the parties to the agreement, in order to give the court jurisdiction therein, and that the agreement might be pleaded as conferring such jurisdiction, and the parties thereto agreed to execute deeds in accordance with any judgment that might be rendered. No amicable division of the real estate having been arrived at between the plaintiff and her brothers prior to the 1st of January, 1886, the plaintiff on the 4th of January, 1886, instituted the present action, setting forth the aforesaid agreement, describing at length the real estate of which the testator died seized, situated in the states of Nebraska and Iowa, and setting forth the rights, titles and interests of all the parties therein, and praying judgment that the agreement might be carried out and all the aforesaid lands and premises partitioned among the parties entitled thereto according to their respective rights and interests.
    On the 30th of January, Howard M. Durant answered said complaint.
    On the 2d of April, or in April, 1886, the plaintiff herein was notified that the. defendant Howard M. Durant, had instituted a suit in Iowa whereby he sought partition of the identical lands and premises described in the complaint in this action located in the state of Iowa. The object of this suit was to obtain a partition of the lands and premises described in the plaintiff’s complaint, situated in the state of Iowa. The plaintiff was also "served with a notice that the defendant Howard M. Durant had brought a suit in the courts of Nebraska to obtain a partition of the lands and premises described in her complaint as situated in the state of Nebraska.
    53T
    An application upon this state of facts was made to the court in this action for an injunction restraining the defendant Howard M. Durant from continuing those actions, upon the ground that it was a violation of the agreement of the 16th of June, 1885, and that by a continuance of such , actions the plaintiff’s rights under the agreement were imperiled.
    The defendant claims the right to institute the suits in Iowa and Nebraska, upon the ground that no partition of those lands can be had in the courts of this state.
    Upon the hearing of the motion the injunction was granted by order, and from this order this appeal is taken.

      Carlisle Norwood, Jr., for app’lt; John M. Bowers, for resp’t.
   Van Brunt, P. J.

The whole argument of the appellant is based upon the claim that no partition of the Iowa or Nebraska lands can be had in the courts of this state, that the courts of this state cannot affect such lands, either by an actual partition or otherwise, that there are infants whose rights must be protected, who are not parties to the agreement of the 16th of June, 1885, and are therefore not bound by the same.

It seems to be a sufficient answer to these objections to observe that the defendant, Howard M. Durant, the party against whom this injunction runs was a party to that agreement, and, as such party, he consented that a partition suit might be brought in the courts of this state for the purpose of partitioning all the real estate of his father, whether the same was situated in the state of New York or elsewhere, that the agreement might be pleaded as conferring jurisdiction, and that he would execute deeds in accordance with any judgment that might be rendered in such action. This he agreed to do for the purpose of obtaining a withdrawal of the plaintiff’s contest to the admission to probate of their father’s will and codicil. _ It is true that the agreement contained other provisions which it is not necessary to observe in discussing this question. He having secured, by means of this agreement, his ends in procuring the probate of his father’s will cannot now be heard to say that because certain other parties are not parties to this agreement that the provisions therein cannot be carried into effect.

■ As far as he is concerned, by that agreement, he is estopped from denying the jurisdiction of the courts of this state, and the suit contemplated by that agreement, having been brought within the time limited, he is precluded by the terms of the agreement from attempting to violate it by bringing actions in other states.

It is entirely immaterial for the disposition of this appeal for us to determine at the present time as to what relief the plaintiff may obtain in this action; it is enough to say that the plaintiff had complied with the conditions to be performed upon her part, contained in the agreement, and upon such compliance the defendant has agreed not to commence suit in other states for the partition of any of these lands, and he, having received his part of the consideration for the agreement, must be held to perform the covenants entered into upon his part. The objection that the agreement expressly reserved the right to this defendant to resist such actual partition upon the ground that the same cannot be justly, legally or equitably made, alters in no respect the position of the plaintiff herein, as it is evident that all that was contemplated by that provision of the agreement was, that any of the parties had the right to insist upon a sale if actual partition could not be made. The defense is to consist of resistance to actual partition, and nothing more.

We are of the opinion, therefore, that the defendant having made his agreement, should be held to its terms.

Order affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.


text:
    Charles W. Watson, Resp’t, v. Broadway and Seventh Avenue Railroad Company, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed January 22, 1887.)

    1. Negligence—Street railroad—Care required, by drivers of cars.
    Where a party is situated on a street, where he has a legal right to be, in passing over it, it is the legal duty of the driver of a car approaching him to make a vigilant use of his senses to discover whether the party is in a position of peril, and to control the movement of his car, so far as possible, to avoid injury to him.
    2. Same—Question for jury.
    . On the evidence in this case, the question of negligence on the part of defendant, in the manner in which the cars were brought together, and the plaintiff placed between them at the time when he was standing between the tracks, which management resulted in the production of the injury, and also plaintiff’s negligence, was properly submitted to the jury.
    Appeal from judgment entered on verdict.

      Theron G. Strong, for app’lt; W. Macfarlane, for resp’t.
   Per Curiam.

The evidence was such as to require the question as to to the plaintiff’s negligence to be submitted, as it was, to the jury, and as they were at liberty to find the facts they could very well exempt him from the charge of negligence contributing to the injury of which he complained. The evidence also sustained the submission of the further inquiry to the jury whether there was negligence on the part of the defendant in the manner in which the cars were brought together, and the plaintiff placed between them, at the time when he was standing between the tracks, which management resulted in the production of the injury. As the plaintiff was situated upon the street, where he had the legal right to be in passing over it, it was the legal duty of the driver of the car approaching him to make a vigilant use of his senses to discover whether the plaintiff was in a position of peril, and to control the movement of the cars so far as possible to avoid injury to him.

, In this respect no more was exacted from the driver than the law requires from persons controlling the motion of vehicles of this description upon the public streets of the city. '

The judgment should be affirmed with costs.


text:
    Frank L. Tapscott, Resp’t, v. Del Orme Knowlton et al., App’lts.

      (Supreme Court, General Term,, First Department,

      Filed January 22, 1887.)

    Reference—When trial should be had by court or jury—Fraud.
    Although when the primary purpose of an action is to obtain an accounting the action is referable; yet if fraud and deceit constitute the ground work, the right to a trial by jury or the court cannot be interfered with, and a motion for a reference should be denied.
    Appeal from an order of reference.

      James B. Silkman, for app’lts; Morgan & Worthington, for resp’t.
   Brady, J.

The complaint in this action prays for an accounting by three of the defendants severally of all the sums of money and shares of stock received and retained, or paid and disposed of by them respectively in and to any dealings and transactions in respect to the purchase and sale of the Silver King Mine and its appurtenances, situated, in the State of Colorado, and further that the plaintiff have judgment against these persons, for such sums of money and shares of stock or the value thereof as may be found due and owing upon such accounting.

It would seem from the prayer thus stated that the action was one founded upon contract express or implied growing out of relations existing between, the parties in reference to the property stated, and that relation only.

But the allegations of the complaint of which the prayer is predicated, all contain the elements of fraud. The plaintiff alleges for example that the defendant Knowlton represented that the immediate payment of $5,000 must be made to the owners of the property on account of the purchase price in order to effect the purchase, and that believing this representation to be true he was induced thereby to pay to Knowlton the sum of $1,000 for the purposes mentioned.

That Knowlton well knew that the representation mentioned was false, and that it was not necessary to make an immediate payment. That Knowlton did not pay it, but retained and converted to his own use a large portion of the moneys contributed and paid to him for the purposes of such payment. That the property having been purchased, it was sold and duly conveyed to the Silver King Mining Company, and that large sums of money were paid and delivered to Knowlton for it, which the parties to the original agreement for its purchase became and were entitled in proportion to their respective interests in the same, and that thereafter Knowlton, with intent to deceive and deceive and defraud the plaintiff, represented that he and the defendants, Bartlett and Smith, had contributed and paid large sums of money to secure the purchase, and that the expenses incident to their procedure had been largely in excess of their actual amount, and that the plaintiff, relying upon these representations, was induced to accept and did accept as his share a portion less than he was entitled to, while in fact and in truth these representations were false. Knowlton, Bartlett and Smith, not having, nor had either of them contributed and paid large sums of money, or any sum of money whatever, on account of or to secure the purchase of the property already mentioned.

The answer denies the charges of fraud and deceit and denies that the defendant refused to account and the issue appears to be as stated by the appellant whethér the plaintiff was induced to part with his money by means of fraud and deceit, whether the defendant made the representations alleged, whether the representations were false and known to be false, and whether they were made to deceive the plaintiff and induce him to part with his money, and it may be said therefore that fraud and deceit constitute the ground work of the action; and it is not necessary to cite authorities to show that upon such a condition of pleadings the right to a trial by jury or the court cannot be interfered with.

This is not a case covered by Segelken v. Meyer, 94 N. Y., 475, or Villmar v. Schall, 61 N. Y., 564, in which the elements of an action on contract and tort were seemingly amalgamated, for the reason that it appeared in those cases that the defendants came rightly into possession of the money or property and that the language therefore charging the tort was surplusage. The respondent insists that the only issue raised by the pleadings is the accounting, all the allegations of the complaint leading to that result, and where the primary purpose of an action is to obtain an accounting, the action is referable. This view is not adopted as the correct one upon which this appeal is to be disposed •of. The right to account, the parties having settled the transaction, depends upon the fraud charged, and unless the frauds alleged were practiced the plaintiff has no right to the remedy sought.

He has placed his right of action upon the charge of fraud. He has not alleged and made it disconnected from fraud, upon which he would have the right to recover. He must therefore stand by the issues raised^ If. after he has established the fraud charged an accounting be necessary, the proper proceeding may then be directed for that purpose. It is not thought that the defendants who insist upon a trial by jury on an issue of fraud can be deprived of that right by a reference under the facts and circumstances •disclosed by the record. The order appealed from must for these reasons be reversed, with ten dollars costs and disbursements.

Daniels, J., concurs.


author: Boardman, J.

text:
    The People, Resp’ts, v. George McCann, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Criminal law—Code Grim. Pro., § 211—Requirements of, aimed at CASES IN WHICH DEFENDANT HAS ABSOLUTE RIGHT TO TRIAL BY JURY AFTER INDICTMENT, o
    The defendant was arrested upon a charge of assault in the third degree and brought before the court of special sessions. He was told that he could have time to procure counsel and was entitled to trial by jury. On being ■asked if he was ready for trial and if he elected to be tried by a jury, he •demanded immediate trial by the court without a jury, which was accordingly had and resul’.ed in his conviction. Immediately thereafter he made an affidavit setting forth various grounds of error in the proceedings and conviction, and applied for and obtained an allowance of an appeal there from. The objections contained in the affidavit were such as would arise in a proper case under Code Grim. Procedure, §211, which section is found in part four of that Code, of which the caption is as follows: “ Of the proceedings in criminal actions prosecuted by indictment.” Held, that this ■caption might be taken into consideration in determining the signification of words used in that part of the Code, and that by so doing the requirements of section 211 were found to be aimed at cases in which the defendant had an absolute right to be tried by jury after indictment.
    3. Same—Assault in third degree—Exclusive jurisdiction oyer, rests IN COURT OF SPECIAL SESSIONS EXCEPT AS PROVIDED BY CODE GRIM. PRO., §§ 57, 58, 59.

      Held, that assault in the third degree was an offense of which courts of special sessions had exclusive jurisdiction under Code Criminal Procedure, section 56, except as provided by sections 57, 58 and 59.
    8. Same—Party charged with assault in third degree has not absolute right to trial by jury after indictment—Code Crim. Pro., § 57.

      Held, that the case in question was not one in which the defendant had a right to be tried by jury after indictment, but that it might have been given him under section 57 in the discretion of certain officers.
    4. Same—Code Crim. Pro., § 211.
    The defendant having been asked how he would be tried and having replied, by the court without a jury and having been so tried; Held, that the provision of section 211 if applicable to the case, had been complied with.
    5. Same—Return of magistrate need not contain matters not raised in defendant's affidavit—Code Cium Pro., § 751.
    By section 58 the magistrate is required to inform the accused of his right under sections 57 and 58 to remove the proceeding so that it may be tried after indictment, if the requisite security and bail can he obtained. The return in this case did not show the performance of these requirements. Held, that the return was silent on these points, because the affidavit of the defendant was silent. That by section 751 the errors to be relied upon on appeal must be specified in the affidavits upon which the appeal was allowed, or they would not be considered in the appellate court. That the magistrate was not required to make return as to matters not contained in the affidavit.
    6. Same—requirement of notice to prisoner by Code Crim. Pro., § 58 —Is directory not mandatory.

      Held, that the requirement of notice to the prisoner was not mandatory, hut directory.
    7. Same—What is waiver of notice.-

      Held, that the defendant by his demand of an immediate trial by the court waived all considerations of other modes of proceedings than that demanded.

      F. A. Lyman, for app’lt; O. H. Lewis, dist. att’y for resp’ts.
   Boardman, J.

The defendant was arrested on a complaint charging him with assault in the third degree, an offense of which courts of special sessions have exclusive jurisdiction under section 56 of- the Code of Criminal Procedure, except as provided by sections 57, 58 and 59.

He was brought before the court, was told that he could have time to procure counsel and was entitled to a trial by jury. On being asked if he was ready for trial, and if he selected to be tried by a jury after having pleaded not guilty, he demanded immediate trial by the court without a jury.

A trial was accordingly had, the defendant was convicted and sentenced to four months in the penitentiary, which sentence on the appeal to the court of sessions was reduced to thirty days.

Immediately after his conviction defendant made an affidavit setting forth various grounds of error in such proceeding and conviction, and applied for and obtained an allowance of an appeal therefrom. The objections called to the attention of the justice in defendant’s affidavit are such as would arise in a proper case under section 211 of the Code of Criminal Procedure. That section is found in part four of the Code, the caption of which is as follows :

“Of the proceedings in criminal actions prosecuted by indictment. ” We have held in People v. Bates (38 Hun, 180), that this caption might be taken into consideration in determining the signification of words used in it. By doing so we find the requirements in section 211 aimed at cases in which the defendant had an absolute right to be tried by a jury after indictment.

Such is not the present case, and the defendant had no such right. It might be given to him under section 57 in the discretion of certain officers. It would have been absurb, therefore, for the magistrate to inform the defendant that he had such right. He was asked how he would be tried. He replied by the court without a jury, and was so tried.

So far as section 211 applies to the present case, if at all, its provisions were compiled with.

By section 58 the magistrate is required to inform the accused of his rights under section 57 and section 58 to remove the proceeding so it may be tried after indictment if the requisite certificate and bail can be obtained. This was not done so far as the returns show. Two answers are made to the omission.

First. That the return is silent on that subject because the affidavit is silent in respect to it. In People ex rel, Baker v. Beatty (39 Hun, 476), it is held that the error to be relied upon on appeal must be specified in the affidavit upon which the appeal was allowed or it will not be considered in the appellate court. Sec. 751. The reason is given in section 756 whereby the magistrate “must make a return to all the matters stated in the affidavit and must cause the affidavit and return to be filed, etc.” He is not required to make returns as to matters not contained in the affidavit. This is reasonable.

When the appeal is taken it must be presumed the appellant knows what alleged errors he wants to review.

The return is made with reference to such errors only. If this be not true, all sorts of technical objections may be urged upon appeal when but one worthless objection is alleged in the affidavit. It should be presumed that the proceedings were légal and valid unless it is affirmatively shown that they are otherwise. '

Second. We are not prepared to hold the requirement of such notice to the prisoner mandatory and that a failure to give it is a jurisdictional defect. The large majority of magistrates authorized to hold courts of special sessions are laymen possessed of little legal knowledge, and still less experience in legal affairs. We cannot think it was intended that the neglect of this and similar provisions should prove fatal to a conviction. If so, what shall be the limit to the information to be given? Will a verbal statement of the substance of sections 57 and 58 be enough, or must the section be read through to the accused? While the statute should be observed in the interest of justice and fairness, we think it is only directory. The defendant, by his demand of an immediate trial by the court, waived all considerations of other modes of proceedings than that demanded. The right was one that he could waive. People ex rel. Murray v. The Justices of the Court of Special Sessions, etc., 13 Hun, 533; affirmed, 74 N. Y., 406.

The judgment of the court of sessions should be affirmed.

Hardin, P. J., and Follett, J., concur.