text:
    Jacob Balz, Jr., Resp’t, v. D. McLean Shaw, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Mortgage — Chattel—Notes.
    Where the mortgagee takes the note of a third person in lieu of the notes mentioned in and secured by the chattel mortgage, such act alone does not discharge the mortgage.

      2. Same — Forfeiture—Conversion.
    Where a provision that the whole sum shall become due if the goods are removed from a certain place is violated, the mortgagee is entitled to maintain conversion therefor, though a note accepted for the price is not due.
    S. Sale — Husband and wife.
    The sale of the piano was held, under the facts and circumstances of the this case, to have been made to the wife and not to the husband, and the chattel mortgage was given thereon by the husband to be void as against an unfiled mortgage previously given by the wife.
    . Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      J. M. Fisk, for app’lt; John P. Schuchman, for resp’t.
   Bookstaver, J.

On the 23d of December, 1893, two persons, representing themselves to be Mr. and Mrs. Schwartz, called at plaintiff’s place of business to purchase a piano, and, after some negotiations, plaintiff sold them an upright for the sum of $450, the piano being delivered the following day, at 244 West Fifty-Second street, at which time $10 of the purchase price was to be paid, and notes to be given for the remainder, running sixty, ninety, and 120 days, respectively, to be secured by a chattel mortgage on the piano. The following day the piano was delivered at the place designated, and the $10 was paid by the person representing herself as Mrs. Schwartz, who at the same time signed the chattel mortgage. The notes specified in the mortgage had then been filled out and signed, but, as they did not specify the place where they should be made payable, it was agreed that new notes, with the name of the bank inserted, should be made, and sent to the plaintiff, and the salesman thereupon took the money and the chattel mortgage. On the 29th December following, Mr. Schwartz went to plaintiff’s store and offered, instead of the three notes, at promissory tiote made by one George Marks for $529.30, dated December 23, 1893, payable ninety days after date.- This note was accepted by the plaintiff as a substitute for the notes called for in the chattel mortgage, and was not due at the time when this action xya-s brought. At the time of the giving of this note» Schwartz asked payment of the difference, but the plaintiff, instead, gave him a receipt for $440 on account of the piano, and also an acknowledgment that, when the note was paid, Schwartz, should receive the difference. The chattel mortgage was never filed. The evidence on the part of the defendant tended to show that Schwartz, about January 2, 1894, applied to the defendant for a loan of $600 on property in the house 244 West Fifty-Second street, including the piano in question. Defendant sent an agent to examine and report on the piano and other furniture, and the value, and after such report, showing t-he piano was in the possession of Schwartz at his residence, and after Schwartz had shown him the receipt given him by the plaintiff, which was in the following language: “ Baus Piano Factory. J. Balz, Proprietor. Warerooms, 113 East 14th St. $440.00. New York, Dec. 29, 1893. Received of Mr. J. Schwartz four hundred and forty (by note) dollars on account of piano. (Stamped) Jacob Balz. Dec. 29, 1893. (Signed) Jacob Balz.’8 Defendant agreed to loan $550. Before doing so, he caused a search to be made in the register’s office for chattel mortgages or liens on the property, and found none, and thereupon gave Schwartz his check for $550 ; and Schwartz gave him two notes» for $275 each, and signed and delivered to defendant a chattel mortgage on various articles of household property, including the piano in question, and also made an affidavit that there were no-liens against the same. Subsequently, for an additional loan made by defendant, Schwartz gave him a second chattel mortgage. On. or about February 8, 1894, defendant took possession of the property described in the chattel mortgages, including the piano in question, they being on the premises in Fifty-Second street, and had possession of the same when this action was commenced.

At the close of the plaintiff’s case, and again when all the evidence was in, the defendant moved to - dismiss the complaint, on the grounds : (1) That the sale from Balz to Mrs. Schwartz was an absolute, and not a conditional, one, taking back a chattel mortgage for the purchase price of the property, which was never filed or recorded; consequently, that the title to the property vested in the purchaser fee and clear at that time of all rights of the plaintiff, .so that the purchaser had a right to do as she wished with the piano. (2) That on the 26th or 29 th day of-December, whatever is the date, the receipt was^given vesting the title in Mr. Schwartz to the piano in question, so that the chattel mortgage or conditional agreement whereby they were to give certain notes was-done away with and canceled, and the new contract substituted therefor. (3) Because this action was commenced prior to the time when the note matured, and therefore was prematurely brought. (4) Because on the 14th February, 1893, the plaintiff» having taken the note of a third party, and given the receipt he did, waived conditional payments and the chattel mortgage, and therefore had no right to the delivery of the piano to him, or to demand the same from the defendant. The court denied the motion, and submitted the case to the jury, in a charge move favorable to the defendant than either the facts or the law warranted; indeed, so favorable that, had the jury found a verdict in his favor, the judgment would necessarily have been set aside on account of errors in the charge.

After#the charge, one of the jurors asked a question which went to the vital point in the case, namely : “ If the lady represented as Mrs. Schwartz owned the piano, what right had Mr. Schwartz to dispose, bargain, or barter the instrument in any way,” — to which the court replied : “ I charge you in reference to that matter that the presumption of law is that Mr. Schwartz was the owner at the time he made the mortgage to Mr. Shaw, and the question for you to determine is, are there any circumstances in the case which would indicate that that fact is not true. You will bear in mind that an individual may buy property one moment, and cease to be the owner the next, because he may transfer it. Therefore, I charge you in this case that the presumption of law, is that Schwartz was the owner at the time he made the mortgage to Shaw.” This was certainly as favorable to the defendant as he could have asked ; yet the jury found there were circumstances in the case which rebutted that presumption, as they well might, when Mr. Shaw, on the 12th February, 1894, before the action was commenced, and knowing all the circumstances proved in the case, wrote to the warehouseman : “Mr. Balz claims the piano. I think the sale is a conditional one. If you agree with me, then deliver the piano to Mr. Balz," upon certain conditions. From the facts in the case, it is clear that the sale was made to Mrs. Schwartz, and not to Mr. Schwartz. She gave back the chattel mortgage. While this mortgage was never filed, still it was valid' as between the plaintiff and Mrs. Schwartz, the mortgagor; and as against her he was entitled to the immediate possession, because of her breach, among other things, of the condition and provision as to keeping the piano for her own use on the premises designated in the mortgage, which may be inferred from the fact that she was in possession of it last before the defendant obtained possession in the absence of explanation. She paid a part of the purchase price. The fact that the husband subsequently negotiated with the plaintiff that the balance was to be received in a note of another person, instead of Mrs. Schwartz, in no way changes the relations of the parties. Any one has the right to pay the debt of another if he chooses, and the mere fact of his doing so would not make him the owner of the property. Had the defendant’s mortgages been executed by Mrs. Schwartz, they would have had priority over the mortgage executed to the plaintiff, because then the statute in regard to the filing of chattel mortgages would have governed. But the defendant took his chattel mortgages from Mr. and not Mrs. Schwartz. There is absolutely nothing in the case which tends to show that he ever became the owner of the property by assignment or otherwise from his wife. Consequently he could give no title to the piano through the mortgages, as no one can give to another a better title than he himself possesses. 26 Am. & Eng. Enc. Law, 778. The appellant is his argument entirely overlooked the chattel mortgage executed to the plaintiff, nor did he seek to establish on the trial any title in the party from whom he received his mortgage other than that which might be inferred from the fact that Schwartz executed the mortgages, and was in the apparent possession of the property, and' his affidavit to the effect that he was the owner and it was unincumbered.

Nor, in our opinion,, did the receipt given on the 29th December, 1893, when the Marks note was accepted by the plaintiff, either supersede the chattel mortgage given by Mrs. Schwartz or constitute a bill of sale to Mr. Schwartz. " It is in the words and figures following: “ Baus Piano Factory. J. Balz, Proprietor. Ware-rooms, 113 East 14th St. $440.00. New York, Dec. 29, 1893. Received of Mr. J. Schwartz four hundred and forty (by note) dollars on account of piano. (Stamped) Jacob Balz, Dec. 19, 1893. (Signed) Jacob Balz.” The plaintiff testified that, when he received the Marks note, he did not make any inquiry as to the standing of the maker of that note, as he thought he had his contract (meaning mortgage) from Mrs. Schwartz, and that he did not ask anybody about the responsibility of the maker of that note. This clearly shows that he did not intend to give up the lien which he had by reason of his mortgage. In the absence of any agreement to take a security in absolute satisfaction of a debt, the intendment of the law is that such a conditional payment only; that is, if the note is paid, the debt is discharged, and otherwise not. The agreement to take one security instead of another must be proved, and, if any inference is to be drawn for silence or want of evidence on that subject, it is in favor of the payment being a conditional one. Greenwich Ins. Co. v. Oregon Imp. Co., 76 Hun, 194; 58 St. Rep. 474. The receipt given by the plaintiff to Schwartz, and shown Shaw, is not a bill of sale. It does not purport to convey title. It is simply an acknowledgment that Schwartz personally handed plaintiff a promissory note on account of the piano, but does not indicate to whom the piano was sold, or by whom the note was made ; and, even if it might be held to be an evidence of a sale to any one, it does not indicate whether that sale was absolute, conveying immediate title, or conditional upon the payment of the note. It does, however, indicate the party from whom the piano was received; and gave to the defendant notice that, by inquiry of the plaintiff, he could have obtained full information in regard to the transaction . If he chose to rely upon the representations of Schwartz and the inference to be drawn from the apparent possession, instead of going to the plaintiff, who would have been bound by an information he gave Shaw, he must abide the consequences.

The language of Woodruff, J., in Spraights v. Hawley, 39 N. Y. 441, on this question in a similar case, is very apropos :

“The appellants contend upon some general idea that because the mortgagor had possession, and the defendants honestly believed they were owners, and in the belief, innocent of any wrongful intent, sold the property, and paid over the profits, it is not just that he should be held responsible. In other words, it is, as to the defendant, a hard case. How, all this would be very well if it were true that mere possession of personal property was such evidence of ownership or of authority to dispose thereof that all persons were at liberty to assume such ownership or authority, and act in reliance thereon. Unfortunately for the appellants this is not so. Indeed, the cases in which possession imports such authority are very few, and the mere fact of possession, unaccompanied by other ■circumstances giving it a specific character indicative of authority, never does.”

The contention that this action for conversion, having been commenced before the Marks note natured, was premature, is not well founded. As before shown, the Marks note was not taken in lieu of the mortgage, but "as additional security. The provision in the mortgage that the piano should not be removed from the place where it was delivered having been violated, the whole sum became due, and the plaintiff therefore had not only title, but right, to the immediate possession of the piano, and could maintain trover for it.

We, therefore, think there was no error in the refusal of the •court to dismiss the complaint, and that it was properly submitted to the jury, whose finding upon the question of ownership and right to possession is conclusive upon us.

Appellant’s counsel urged strongly upon the argument that a new trial ought to be granted because of the rulings of the court, in the progress of the trial, wherein it stated that it would put the defendant on his defense to show that he was a purchaser in good faith, and intimated that, if that were shown, the defendant would be entitled to a verdict; that, in consequence of this ruling, the defendant made no attempt to offer additional testimony on other points, and took no exception to a ruling excluding evidence which, if admitted, would have been of benefit to the defendant. This argument might properly have been addressed to the general term of the city court, which had the right to set aside the verdict as contrary to evidence or in the furtherance of justice; but this court can review the case only upon the exceptions presented by the record, and, as there are no exceptions to this ruling or to the exclusion of evidence, we have no power to set aside the verdict or consider any objection which is not based upon someexception taken at the trial. Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544. Besides, a party cannot take advantage of an erroneous ruling in his favor, and go to the jury upon an erroneous theory, and then, if he falls, seek to set aside a verdict rendered against him.

Ho error having been committed by the court prejudicial to the appellant, the judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    William R. Morgan et al., App’lts, v. Edwin T. Short, Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Evidence — Declarations—Agent.
    When acts of the agent will bind the principal, his representations, declarations and admissions will also bind him, if made at the same time, constituting part of the res gestae.

    Appeal from a final order in summary proceedings in favor of defendant.

      Jeroloman & Arrowsmith, for app’lts; Jackson Wallace, for resp't.
   Bischoff, J.

This proceeding was instituted to recover possession of the premises in question, for nonpayment of rent due April 1, 1894, by the terms of a written lease. The only issue litigated upon the trial was that raised by the defense of eviction, and upon this issue a jury found in favor of the defendant. From the evidence it appears that defendant removed from the premises in November, 1893, but retained the keys of the particular portion leased by him, and in no way disputed his liability for rent. At that time he applied to plaintiffs for permission to sublet, naming a proposed undertenant. As to what was the outcome of this application, the evidence leaves us in some doubt; but it is conceded that in the latter part of November, 1893, defendant visited the building, and found a padlock placed upon the door of the demised premises. According to the testimony of defendant and his witnesses, the plaintiff’s janitor stated that he had placed this lock upon the door in obedience to plaintiffs’ orders, and that his instructions were to allow no one to enter without a permit in writing. Defendant then left the premises, and, so far as appears, never resumed possession. The plaintiffs’ denial that they ever authorized the act of the janitor, and the latter’s testimony that he had not been so authorized, and had so stated to defendant at the time of their interview, merely created a conflict of testimony, as to which the jury’s finding concludes. The only question before us upon this appeal is whether or not the evidence given by defendant, with regard to -the janitor’s statements in explanation of the presence of the padlock, was sufficient to support a finding of an eviction. Assuming, as we must, that the jury credited the defendant’s evidence, we have the fact that the janitor’s declaration was actually as stated. Thus, upon familiar principles, and in view of the charge delivered below, and next to be noted, we must hold this to be proof that the padlock was affixed with an intention upon plaintiffs’ part to deprive defendant of a beneficial enjoyment of the premises. The rule with regard to the effect of an agent’s declarations, as binding upon his principal, may be stated as follows: “When acts of the agent will bind the principal, then his representations, declarations, and admissions will also bind him, if made at the same time, constituting a part of the res gestae.” Kasson v. Mills, 8 How. Prac. 377. The question whether or not the act of placing the padlock upon the door was within the scope of the janitor’s employment was left to the jury by the justice below, without objection by plaintiffs, and we must assume that their finding followed the charge. Hackett v. Gaslight Co., 6 Misc. Rep. 75; 55 St. Rep. 492. So, also, with plaintiffs’ acquiescence. It was charged that the jury could find for the defendant if they believed his testimony as to the statements of the janitor. We find no ground, therefore, for disturbing the conclusion reached by the jury upon the facts; and, no questions of law being presented for review, the final order is affirmed, with costs.


text:
    Louis M. Simpson, App’lt, v. Cornelius W. Rourke, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Bailment — Restaurant keeper.
    A restaurant keeper is not an insurer of the effects of customers who may have accepted the invitation held out by him, but, at most, is required to use the ordinary care called for by the circumstances.
    Appeal from a judgment, rendered in favor of defendant by the justice without a jury.

      Clarence D. Cruikshank, for app’lt; Daniel P. Mahoney, for resp’t.
   Bischoff, J.

This action was brought to recover the value of an overcoat alleged to have been lost from the defendant’s restaurant at a time when plaintiff was upon the premises as a customer. The justice determined the issues in favor of the defendant, and, we think, correctly, since the evidence supports a fair inference that the latter was not chargeable with negligence in his manner of caring for the apparel of persons patronizing his establishment. A restaurant keeper is not an insurer of the effects of customers who may have accepted the invitation held out by him, but, at most, is required to use only the ordinary care called for by the circumstances. Buttman v. Dennett, 9 Misc. Rep. 462; 61 St. Rep. 89, One of the defendant’s employes was specially detailed to perform the duty of keeping watch over the hats and coats in the restaurant, and to keep suspicious characters away from the premises; and defendant himself occupied a position in the room, which, by reason of the presence of continuous mirrors upon the walls, enabled him to observe the actions of customers at all points. It-further appeared that the plaintiff’s garment was the first which had been lost from this restaurant. The plaintiff had not placed his overcoat in the physical custody of defendant or his servant, but had removed it, after having selected a seat, and personally placed it upon a rack. The question, then, was merely as to the sufficiency of the general supervision exercised over the restaurant for the protection of a customer’s property placed therein. It was not made to appear that the size of the restaurant, or any special conditions, called for greater vigilance than was actually exercised; and while the justice might, perhaps, have found some slight grounds for a contrary inference, we do not consider his conclusion to have been against the evidence. It was for him to draw the inferences from the facts, and this court is not to disturb the conclusion reached, unless manifestly erroneous, which the conclusion arrived at in this Case certainly was not. No exceptions were taken upon the trial, and the issue of fact was properly resolved, as shown. The judgment must be affirmed, with costs.


author: Daly, C. J.

text:
    Thomas Ford, App’lt, v. Jacob Schlosser, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Boundary — Practical location.
    The acquiescence of adjoining proprietors for forty years in the practical location of a boundary line between their lands is conclusive, though such location was originally made under an agreement resulting from a mutual mistake as to facts.
    3. Vendor and purchaser — Title.
    Where the vendor and his grantors have been in the possession of the land sold for a period of forty years, with the acquiescence of the adjacent owners and-in the absence of any dispute about it, any objection on the part of the purchaser is not meritorious, but technical, and does not justify him in refusing to complete the contract.,
    Appeal from a judgment, dismissing the complaint.
    - Thompson & Koss, for app’lt; Davis & Kaufmann (Edward Kaufmann, of counsel), for resp’t. .
   Daly, C. J.

The defendant. Jacob Schlosser, on October 7, 1893, contracted to sell to the plaintiff, Thomas Ford, for $34,500, three lots of land in the city of New York, known by the street numbers 323, 325, and 327 West Eleventh street, formerly Hammond street, and described as follows: “ Beginning at a point on the northerly side of West Eleventh street, 'distant 117 feet 3 inches westerly from ‘the westerly side of Greenwich street, and running thence northerly 95. feet 4 inches, running thence westerly 25 feet, thence southerly 2 inches, thence again westerly 48 feet 1 inch,, and thence again southerly 95 feet 5 inches, to the said northerly side of West Eleventh street, and thence easterly 73 feet 6 inches, to the point or place of beginning,” — subject to certain leases. The plaintiff paid $1,000 of the purchase price on the execution of the contract, and this action is brought to. recover it back, as well as for damages, on the ground that the defendant was not able to give a good and merchantable title to a portion of the said premises, being a strip of land on the westerly side thereof, 2 feet 10 inches wide, by the entire ■ depth, besides a strip of 4 or 5 inches in the rear. The land which defendant contracted to convey has been in possession of the vendor and his grantors'or their tenants since 1836, or nearly sixty years, and has been built upon and inclosed by them since 1854, or over forty years; and defendant claims title to the strip in question not only by deed, but by prescription and acquiescence of the adjoining owners in the practical location of boundaries, and by adverse possession sufficient to confer a good, merchantable title. The defendant’s chain of title is as follows: A deed to him from the executors of Eichard Y. Kissam,_ dated April 28, 1891, conveying tlie property by the above description, and two deeds to Eichard Y. Kissam — one from John J. Herring and wife, dated May 9, 1836, (which includes the disputed strip on the west side), and one from Stuart F. Eandolph and wife, dated M'ay 24, 1836, which embraces all the remainder of the premises. These latter deeds together convey four lots on the north side of Hammond street with a frontage of 98 feet, which, from the descriptions given in the deeds, are supposed to be situated 115 feet west of Greenwich street, and 168 feet east of Washington street.

The only question in the case arises from a conveyance by Kissam to Lambert Suydam of a portion of the premises, made October 13, 1836. The portion conveyed to Suydam is a lot 25 feet in widtli by 95 feet in depth, described in such conveyance in different ways, and which it is contended by plaintiff divested Kissam of the whole premises embraced in his deed from Herring, including the strip in question. The conveyance to Suydam described the lot (1) as distant 188 feet west of Green-which street; (2) as the premises conveyed to Kissam by Herring in the deed above referred to; (3) as “ the said lot hereby conveyed or intended so to be, being the lot next adjoining the two lots owned by tlie' said Lambert Suydam of the second part, and on the easterly side thereof; ” (4) as distant .168 feet 4 inches easterly from Washington street. These distances do not agree with .those in the deeds to Kissam, nor with the actual measurements of the block between Greenwich and Washington streets; and the errors as to location by distances arise from the fact that a false location to the corner of Washington and Hammond streets had been made, and the owners of that corner had encroached with their lot line, and afterwards with their buildings, upon Washington street for a distance of over two feet. The location by distances in the deed of Kissam to Suydam is practically unimportant, since it was especially declared" in the deed as the intention of the grantor, and so received by the grantee, that the lot next adjoined the lots of the latter on the easterly side thereof; and, after Suydam acquired the land so intended to be conveyed to him by Kissam, the boundary between it and the remaining lots of the latter was established by the erection of structures on their respective properties, which have remained undisturbed for over forty years, in the possession of the parties and their descendants and tenants; the premises so practically located as belonging to Kissam, and occupied by him for that length of time, being the same property contracted to be sold by defendant to the plaintiff. The ownership of the defendant and his grantors and their tenants have never been disputed by Suydam or his heirs, the only parties who could complain; the encroachment, if any, being upon their land. The plaintiff had been able, in fact, to procure from all the heirs of Suydam, save one against who there was an unsatisfied judgment, a release of the strip upon whichthe encroachment, if any, was made ; so that the only dispute of the title of Kissam is made for the first time by the plaintiff. The practical location of the boundary line between the Kissam and Suydam properties as established between the respective owners, and acquiesced in for so long a period, is not merely evidence of an agreement between them, but is “ proof that the location is correct of so controlling a nature as to preclude evidence to the contrary. The acquiescence of adjoining proprietors forty years in the practical location of a boundary line between their lands is conclusive, although it be proved that such location was originally made under an agreement resulting from a mutual mistake as to facts.” Baldwin v. Brown, 16 N. Y. 359. “ The doctrine as to practical location of a boundary line is well settled in the courts. It was adopted as a rule of repose, with a view of quieting titles, and rests upon the same ground as the statute in reference to adverse possession which have continued for a period of twenty years. It applies not only to cases of disputed boundaries, but to those which there can be no real question about.” Sherman v. Kane, 86 N. Y. 57-73. See Jones v. Smith, 64 N. Y. 180. “If two adjacent owners agree upon and establish a dividing line between their premises, and actually claim and occupy the land on each side of the line for the statutory period, such possession will be adverse, and will confer a title by prescription.” 1 Am. & Eng. Enc. Law, 240, and cases.

The facts established the title as claimed by defendant to the whole property which he contracted to convey. His grantor, Kissam, had an undisputed title by deed in 1836; and that portion of the premises which in that year he conveyed to Kissam was practically located between the adjoining owners so as to leave Kissam in full and undisturbed possession, ever since that time, of the premises which his executors conveyed to defendant and which defendant sold to plaintiff. The possession of the lot by defendant and his grantors for so long a period, the acquiescence of the adjacent owners, and the absence of any dispute about it, make plaintiff’s objection to the title not meritorious, but technical. Meyer v. Boyd, 51 Hun, 291-294; 20 St. Rep. 918.

The judgment in favor of the defendant at the trial term was correct, and should be affirmed, for the reasons given by the learned trial judge.

Judgment affirmed, with costs.

All concur.


author: Geigerich, J.

text:
    Samuel Milch, Resp’t, v. Westchester Fire Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Pleading — Amendment.
    It is mandatory upon the district courts to allow a pleading to be amended, at any time before, or during, the trial, if substantial justice will be promoted thereby.
    2. Appeal — Error cured.
    An error in refusing to nonsuit upon a plaintiff’s opening is cured by a subsequent amendment, which removes the grounds of nonsuit.

      Appeal from a judgment, rendered in favor of plaintiff by the justice without a jury.

      Charles A. Bunk, for app’lt: Charles I. Schampain, fur resp’t.
   Geigerich, J.

The plaintiff, at the time of the transactions hereafter mentioned, was a public adjuster of claims for losses arising by the destruction by fire of buildings and contents covered by insurance policies. The defendant, on or about July 5, 1893, -issued its policy to one Adolph Stern, insuring his furniture, etc., against loss by fire for one year from July 23,1893. A fire having occurred on December 27, 1893, said Stem employed the plaintiff to "obtain the amount of his loss, and by an instrument in writing, dated January 2, 1894, “in consideration of the valuable services rendered and to be rendered” by the plaintiff, assigned to the latter the said policy and the amount due thereunder to the amount •of the plaintiff’s fees for services as such adjuster and of advances of money by him for expenses. The plaintiff claimed that on January 3, 1894, he mailed the said assignment to the plaintiff, together with notice of the damage by fire; but the latter, while admitting the receipt of such letter, denied, through its special adjuster, the receipt of said assignment. After the filing by plaintiff of proof of loss with the defendant, the latter, on March 6,1894, settled the loss with said Stern by paying to him a certain sum; and the company received from him the return of the policy of insurance, and a receipt in full accord and satisfaction of all claims and demands against the defendant for loss and damage by reason of the said fire. The defendant having refused to pay plaintiff’s claim, the latter then brought this action. The pleadings were oral. The complaint originally was for “ money due by reason of lien contract between plaintiff and defendant, money advanced; ” and the answer was a general denial.

Upon the trial the defendant’s counsel moved to dismiss the complaint on plaintiff’s opening, which was denied. After putting in some testimony, plaintiff’s counsel moved to amend the complaint" by alleging the cause of action to be money due the plaintiff under an assignment from one Adolph Stern of an interest in a policy issued by the defendant to the said Stern, which amendment was allowed. Counsel for appellant insists that the justice erred in permitting such amendment; but we have repeatedly held that it is mandatory upon district courts to allow a pleading to be amended at any time before the trial, or during the trial, if substantial justice will be promoted thereby. Runge v. Esau, 6 Misc. Rep. 147; 56 St. Rep. 409; Steinam v. Bell, 7 Misc. Rep. 318; 57 St. Rep. 462; Huttan v. Murphy, 9 Misc. Eep. 151; 59 St. Rep. 662. The power to amend, in our opinion, was properly exercised by the court below; and as the defendant proceeded with the trial upon the amended -complaint, and fully litigated the questions presented thereby, by introducing testimony to refute the testimony adduced on the part of the plaintiff in respect thereto, it is apparent that the defendant was not prejudiced by the amendant. If the justice erred in refusing to nonsuit on plaintiff’s opening, the error was cured by the amendment thereafter allowed.

After a careful reading of the evidence, we are unable to say that the judgment is against the weight of the evidence. There is a direct conflict upon the point whether the plaintiff inclosed the assignment in his letter of January 3d, but we are inclined to the belief that the weight of evidence is in his favor.. We think that the decision of the justice as to the facts was in all respects correct, and we see no reason for disturbing it, in the absence of the elements which are requisite to review such determination. Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120; Weiss v. Strauss, 39 St. Rep. 78.

The objection that plaintiff in rebuttal put in evidence contradicting his own witness is not well taken. As it appears from 'the record that the question was not objected to until the answer had been given, and there being nothing to show that the objection could not have been made, the objection should not be considered. Perkins v. Quarry Co., 11 Misc. Rep. 328; 65 St. Rep. 417, and citations. Besides, further examination of the witness upon this point was discontinued upon the remark of the justice: “1 think you have gone into the case as far as necessary.”

For these reasons, the judgment should be affirmed, with costs.


author: Fitzsimons, J.

text:
    Henry Huber Company, Resp’t, v. William A. Soles, App’lt.

      (New York City Court, General Term,

      Filed May 28, 1895.)

    Trial — Short-cause calendar.
    One day’s notice of order placing a cause on the short-day calendar in the New York city court is sufficient.
    Appeal from an order, placing the cause on the short-day calendar.
    , Samuel P. Hotchkiss, for app’lt; Langbein Bros. & Langbein, for resp’t.
   Fitzsimons, J.

An order was granted herein, placing this, cause upon the short-cause calendar for trial for February 21st. A copy of said order was served on the defendant’s attorney February 20th at 1 o’clock. He had, therefore, ample time to prepare-for the trial, and thus the cause was regularly on the day calendar for trial. Rule 14 of this court was not enacted for the benefit of members of the bar, but solely for the convenience of the clerk having charge of the making up of the day calendar of the court. The defendant’s constitutional right of trial of his cause was not taken from him, as he seems to think. It appears to us that he had his day in court, but neglected to take advantage of it. Defendant had no right to have the default in question vacated. That is a favor which the court had a right to refuse him if the interests required such a refusal. Apparently the special term-justice thought that the alleged defence was entirely without merit. In that conclusion, after ail examination of the record, we-concur; particularly as defendant denies any indebtedness in the answer, and admits in his affidavit that he owed plaintiff at least §¿90-83, because he swears that he assigned a claim for that sum to plaintiff in part payment of the claim in suit. This contradiction, and his letters printed in the appeal book, show, I think, that the interests of justice were best served by making the order appealed from, which must be affirmed, with costs.

All concur.


author: Conlan, J.

text:
    State Bank of the City of New York, App’lt, v. Jacob Postal et al., Impleaded, etc., Resp’ts.

      (New York City Court, General Term,

      Filed May 28, 1895.)

    1. Bills and notes — Question op pact.
    Where, from, an inspection of a note, it is difficult to say when it is pay able, the question is for the determination of the jury.
    2. Evidence — Banks.
    Where, in an actipn by a bank on a discounted note, it is difficult to determine whether the time written in the note was two or four months after date, and the indorsers claim that they are relieved from liability by reason of non-protest, checks, drawn on the .bank by the maker of the note are admissible for the purpose of charging the bank with knowledge of the maker’s peculiar way of writing the word “two.”
    Appeal from a judgment, entered on a verdict in favor of defendants, and from an order denying a new trial.

      George Carlton Comstock, for app’lt; Morris Goodhart, for resp’ts.
   Conlan, J.

This is an appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial. The action was brought on a promissory note made by one M. Fische to the order of himself, dated September 19,1893, and indorsed, by the defendants Postal and Price, and before discount by the plaintiff. The note was protested as a four-months note, and the indorsing defendants Postal and Price contend that it was a two-months note, and that they are therefore relieved from liability, not having been charged by a proper protest. The only question submitted to the jury was whether the note in suit was due in two or four months. From an inspection of the note, it would be difficult to say whether the time written in the note on the blank space before the printed word “months" was “two” or “four"; it therefore became a question of fact for the jury. The defendants introduced in evidence a number of checks drawn by the maker of the note in suit, on the plaintiff, commencing early in May, 1892, and continuing down to the making of the note, in some of which the word “two" was written similarly to the time written in the note, and in others the word “four” was written legibly and spelled correctly. Defendants also introduced a promissory note in the handwriting of Fische, dated May 9,1893, at four months, and discounted by the plaintiff, where the time was written as “four” months, as tending to show knowledge on the part of the plaintiff as to Fische’s peculiar way of wilting the word “two,” as distinguished from the word “four.” The plaintiff objected to the introduction of the checks, on the ground that they passed only the paving teller and bookkeeper, and were not before the directors,. as in the case of notes offered for "discount, and therefore not notice to the plaintiff. The plaintiff is a corporation carrying on a banking business. Its method or system is its own and persons ■employed in carrying out this system are its agents and servants, and if it has established channels through which business paper must go that do not bring knowledge to its officers, it is the fault of the system employed, and cannot be urged to the prejudice of innocent parties dealing with it, without either knowledge of or control over its interior operations. The checks uumistalrably -show that the plaintiff frequently, during a course of dealings extending ovef a period of nearly a year and a half prior to the making of the note in suit, recognized and acted on a similar written word to the one on the note in suit as meaning two, and not four. But, aside from what may be gathered from an examination and ■comparison of the notes and checks, there is direct evidence that the plaintiff had actual knowledge that the note was for two months before its discount. It is true that this evidence is flatly ■contradicted by Mr. Rosenbaum, the cashier of the plaintiffs. The ■conflict thus presented was one for the jury. We think the case was fairly submitted, and that the verdict should stand.

Judgment affirmed, with costs.


text:
    Frederick A. Boyden, Resp’t, v. Austin F. Baldwin et al., App’lts.

      (New York City Court, General Term,

      Filed May 28, 1895.)

    PKINCIPAL AND AGENT — RATIFICATION.
    Where plaintiff is employed by an.agent of the defendant to sell goods on commission, and the defendant afterwards fills the orders procured by plaintiff and pays him his commissions, the contract of employment is thereby ratified.
    Appeal from a judgment entered in favor of plaintiff.

      Seward, Guthrie, Morawetz & Steele, for app’lts ; Samuel G. Adams, for resp’t.
   Conlan, J.

This is an appeal from a judgment entered by direction of the court and from an order denying a motion for a new trial. This action was brought to recover commissions on .sales of merchandise belonging to defendants by plaintiff to third parties, under an agreement that he was to receive ten per centum •on all immediate or direct orders, as well as on all subsequent orders from such new customers so long as they continued to trade with defendants. The evidence of Boulger, at folio 39, and of the plaintiff, at folio 66, clearly shows the employment of the plaintiff by Boulger, who was then in the employ of the defendants about December —, 1891. The subsequent conduct of the ■defendants, in filling orders and paying commissions, constituted a full and complete ratification of that employment. ' Open oral agreements to pay commissions on future sales of merchandise have always been a fruitful source of dissatisfaction and litigation. Such contracts are, however, legal and valid obligations, and enforceable in our courts until terminated by some act of the parties. The contract sued-on does not seem to have been terminated down to the time plaintiff asked for an accounting, in October, 1892. The amount of goods sold is not seriously disputed by defendants, but it is claimed that plaintiff is not entitled to commissions on a great portion of the orders, because they were initiated by others, and that the influence of the plaintiff did not contribute directly to the sale. This contention cannot be sustained. The plaintiff was entitled to his commissions, notwithstanding the participation of friends. It is not contended that the friendly assistance plaintiff received in any way increased defendants’ liability to pay commissions to others, nor can it be denied that they got the benefit of the orders so obtained. The appellants do not urge any of the rulings of the trial judge as error, and on all the facts we are of the opinion that the direction made by the trial judge was warranted.

The judgment is therefore affirmed, with costs.


text:
    Leonard M. Gage, App’lt, v. Henry Peetsch, Resp’t.

      (New York City Court, General Term,

      Filed May 28, 1895.)

    Costs — Security.
    An order, requiring plaintiff, as a non-resident, to give security for costs pending appeal, on the ground that he has no office for the regular transaction of business within the city of New York, will be reversed, where the moving papers fail to show such fact affirmatively.
    Appeal from an order requiring plaintiff to give security for costs.

      William F. Randal, for app’lt; Johnston & Johnston, for resp’t,
   Conlan, J.

This is an appeal from an order requiring the plaintiff, as a nonresident, to give security for costs pending appeal. The moving papers fail to show affirmatively that the plaintiff has not an office for the regular transaction of business within the city of "New York. The order must therefore be reversed, with costs, on the authority of Stephenson v. Hanson, 4 Civ. Proc. R. 104.


author: Pryor, J.

text:
    The People ex rel. Edward Glennon, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Policemen — Certiorari .
    On certiorari the general term has jurisdiction to review the decision of the board of police commissioners in denying an adjournment of the trial of a policeman ; and, if it be found that such denial involved an abuse of discretion, the order of the board upon such trial, dismissing the policeman from the force, will be reversed, and the policeman reinstated.
    Certiorari to review the decision of commissioners of the board of police of Hew York City, in dismissing relator from the police force.

      Friend & House, for relator; Francis L. Wellman, for resp’ts.
   Pryor, J.

The learned counsel for respondents insists that we have no jurisdiction to review the decision of the board of police commissioners in denying the relator’s motion for an adjournment, but the authority he cites in support of the contention, People ex rel. Doherty v. Board, 84 Hun, 64; 65 St. Rep. 175, distinctly recognizes the right of revision in case the refusal of the adjournment involved an abuse of discretion. People v. Thompson, 94 N. Y. 452. We have held in People ex rel Devery v. Martin,. (herewith decided) 67 St Rep. —, that the denial of the adjournment in that proceeding was an abuse of discretion; and, since the motion on the part of the present relator was supported by the-same proof of inability to secure that attendance of Devery, its denial was necessarily an equal abuse of discretion. Nay, upon the application by this relator it was patent to the commissioners that with all their power, and after every exertion, they found it. impracticable to compel Devery’s attendance. Sick or well, by concession, Devery’s presence at Glennon’s trial was an impossibility. Counsel for respondents affirms that “ it is self evident,, from the whole record, that it was with the full knowledge, consent, and privity of Officer Glennon, his intimate friend and ward-man, and coworlcer in wrongdoing,” that Devery did not attend the trial. We have to express regret that counsel did not cite tons any folio or page of the record where the evidence of such collusion might be found, for the omission has imposed upon us the ineffectual labor of exploring for the alleged proof. We discover such in the volume before us. On the contrary, the uncontroverted fact is that relator called, over and over again, at Devery’s. house for conference in reference to their case, and was refused access to Devery on acccount of his illness. Undoubtedly, if we assume the guilt of Glennon and Devery, and that they were “ coworkers in wrongdoing,” the inference -of their collusion in the-absence of Devery is obvious enough. But we had supposed that, even on the trial of a policeman, he is entitled to the presumption of innocence ; and the mere fact that, in the prosecution of Glen-non and Devery, they are jointly accused, is no proof that they are conspirators in crime.

The question is, did the relator present a case to the board which, in the exercise of a sound discretion, should have given him an-adjournment of the trial ? (1) Glennon and Devery were charged as accomplices in the same offenses ; and, of necessity, Devery knew whether Glennon committed them. The relator .made due affidavit that Devery wras “a material and necessary witness for relator ; ” that his presence at the trial “ was indispensable to relator’s defense,” as he “ had been advised by counsel, and verily believed; ” and that Devery ll would testify under oath to all material charges and specifications, and deny each and every of them.” (2) By affidavit, the relator showed diligent but fruitless effort, by an attempted service of subpoena, to secure the attendance of Devery. (3) By affidavit it appears that Devery’s presence; at the trial of relator could be insured by an adjournment until Devery’s recovery. (4) The relator makes affidavit of his innocence.

To entitle relator to an. adjournment, the law required nothing more. Brooklyn Oil Works v. Brown, 7 Abb. Pr. (N. S.) 382. And the denial of the application is reversible error. Garfield Nat. Bank v. Colwell, 28 St. Rep, 723 ; Gallaudet v. Steinmetz, 6 Abb. N. C. 224. If, in a civil action, attended by no penal consequence, an erroneous refusal to adjourn a trial be fatal to a judgment, much more should such wrongful refusal vitiate a proceeding essentially of the nature and effect of criminal prosecution.

The respondents suggest that, as counsel for the relator remained and took part in the proceeding, he is precluded now from objecting to a denial of the adjournment. We do not collect from the record that counsel participated in the trial, but, if he did, he may yet challenge the refusal of the adjournment. 2 Bumsey Prac. 220.

The offer of the prosecuting attorney to admit that Devery would swear as claimed by the relator was ineffectual to supersede the right of relator to the presence of the witness. Bank v. Michel, 1 Sandf. 687. Uor was the offer to take the testimony at Devery’s house of any avail, in face of the fact, known to counsel and the board, that Devery was inaccessible, on account of illness. Indeed, the various proposals by the prosecuting attorney of expedients to obtain Devery’s evidence are obviously of no significance ; seeing that they were impracticable, and that the relator, with his counsel, though personally present, under the menace of the board, had retired from the trial.

The respondents now contend that “ the evidence, as disclosed on the trial of relator, demonstrates that Devery could not have been a material witness for relator. Such disclosure, if in fact apparent, was made after the denial of the adjournment, and might not have occurred, had the relator been allowed an opportunity to produce Devery. The proposition that on the ex parte trial the charges against the relator were so clearly established that no fullness of defense could have saved him has been already answered in the Devery Case.

Upon the whole, we are of the opinion that the relator should have been vouchsafed an opportunity to produce the witness in his behalf, and that it was an abuse of discretion to refuse him the privilege. It may be essential to the discipline of the service that the commissioners should have an- arbitrary power of dismissal from the police ; but, while the law remains as it is, we are bound to see that no member of the force be removed in violation of the safeguards of fair and just procedure. The order of the board is reversed, and the relator reinstated, with costs.

All concur.


author: Herrick, J.

text:
    In the Matter of the Application of the Amsterdam, Johnstown and Gloversville Railroad Company for a Certificate, etc.

      (Supreme Court, General Term, Third Department,

      Filed May 24, 1895.)

    1. Appeal — Railroad commissioners.
    Unless the court can see that the decision of the board of railroad commissioners is founded upon erroneous legal principles, or that it proceeded' contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has abused the discretion vested in it and has arbitrarily refused to issue the necessary certificate, the court will not reverse its determination and compel it to issue a certificate.
    2. Railroads — Commissioners—Certificate.
    The fact that an existing railroad is making excessive charges for freight and passenger transportation, does not establish that public convenience and necessity require another railroad, within section 59, chapter 676 of . 1892.
    Application for a certificate that petitioner has complied with the railroad law.

      Hale, Bulkeley & Tennant (Matthew Hale and Andrew J. Nellis of counsel), for application ; Hamilton Harris (A. D. L. Baker, of counsel), opposed.
   Herrick, J.

The Amsterdam, Johnstown & Gfloversville Bail-road Company was incorporated July 12, 1894, pursuant to chapter 565 of the laws of 1890, and the laws amendatory thereof, for the purpose of constructing a steam railway between Amsterdam, Montgomery county, and Johnstown and G-loversville, Fulton county, a distance of about fourteen miles. The company has paid to the state treasurer the taxes upon the capital stock, as required by statute. Section 59 of- chapter 676 of the Laws of 1892 provides that:

“No railroad corporation hereafter formed under the laws of this state, shall exercise the powers conferred by law upon such corporations, or begin the construction of its road until the directors shall cause a copy of the articles of association to be published in one or more of the newspapers in each county in which the road is proposed to be located, at least once a week for three successive weeks, and shall file satisfactory proof with the board of railroad commissioners; nor until the board of railroad commissioners shall certify that the foregoing conditions have been complied with, and also that public convenience and necessity require the construction of said railroad as proposed under said articles of association. * * * After the refusal to grant such certificate, the board shall certify a copy of all maps and papers on file in its office, and all the findings of the board when so requested by the directors aforesaid. Such directors may thereupon present the same to a general term of the supreme court, of the department within which such road is proposed, in whole or in part to be constructed, and said general term shall have power, in its discretion, to order said board, for reasons stated, to issue said certificate, and it shall be issued accordingly.”

The corporation so formed complied with the necessary prelimi» nary requirements of this statute, and made application to the board of railroad commissioners for a certificate “that public convenience- and necessity required the construction of the proposed railroad.” The said board of railroad commissioners, holding that it did not appear to the board that “public convenience and necessity” required the construction of said railroad, as proposed in said articles of association, “and as set forth on the maps and profiles filed,” denied the application for such certificate. Whereupon the directors of said railroad corporation procured certified copies of all maps, papers, and evidence presented in said application, and have presented the same to this court, and ask for an order to compel the board of railroad commissioners to issue the certificate applied for. In re New Hamburgh & P. C. R. Co., 76 Hun, 76; 59 St. Rep. 150, where a similar application was made to the general term of the supreme court, after stating the manner in which the application was brought before it under the statute, the court said:

“ This mode of proceeding, while it grants the court power to-review the action of commissioners, plainly indicates that the court is to treat the application as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in the first instance. The burden rests upon the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess.”

I concur with that view of the province of this court in these proceedings. Hnless the court can see that the decision of the board of railroad commissioners was founded upon erroneous legal principles, or that it proceeded contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has-abused the discretion vested in it, and has arbitrarily refused to issue the necessary certificate, I do not think that the court should reverse its determination and compel it to issue a certificate. The railroad commissioners are vested with the supervision of the railroads of the state. It is made their special and peculiar duty to investigate and inform themselves as to the condition of existing roads, and as to the needs of the various parts of the state for transportation facilities; and their opinion upon these matters, in" regard, to which a proper discharge of their official duty requires them to be specially informed, is entitled to respect and consideration, Upon the hearing before the railroad commission, oral testimony was-given by witnesses sworn both on behalf of and in opposition to the-application. Petitions, signed by hundreds of the residents of Amsterdam, Gfloversville, and Johnstown, were presented to and filed with such board of railroad commissioners. Some of the petitioners certify that public convenience and necessity require the-construction of the proposed road, and others certify that public-convenience and necessity do not require the construction of the proposed road. The board of railroad commissioners, in making its order denying the application, filed a memorandum, which, amongst other things, contains the following statement:

“ In the pending application, the route of the proposed road from Akin, a small settlement about three miles west of the Amsterdam station on the New York Central, westerly for about three miles to Tribes’ Hill, on a line substantially parallel with the line of the Central, and lying a few hundred feet north of it. There are stations on the New York Central at both Akin and Tribes’ Hill. From Tribes’ Hill the proposed line runs northwesterly on a course gradually diverging from the line of the Central, passing at the most distant point within from two to two and one-half miles of the Fonda station of the Central, which station is some five miles west of the Tribes’ Hill station on the Central. The proposed line then turns northerly, and runs to Johnstown, on a course in the immediate neighborhood of and naralel to the lines of the Cayadutta Electric Railroad and the Fonda, Johnstown and Grloversville Railroad, and in fact crossing these roads in several places. From Johnstown to Grloversville it follows practically a route already occupied by three existing railroads, viz. the two just mentioned and the Johnstown, Grloversville and Kingsboro Horse Railroad. Considered as a whole, it offers a route from Akin to Grloversville of fourteen- miles in length, as against an existing route of about sixteen miles by the New York Central to Fonda, and from thence to Grloversville by the Cayadutta Electric Road, and a second routs of about twenty-one miles by the Central to Fonda, and the Fonda, Johnstown & Grloversville. Conceding that the new road may make a saving of a few miles, this saving is of no consequence except for passenger traffic. The only manner in which the proposed road would reach the city of Amsterdam would be by a connection with an existing electric street railroad now running to Akin, which from Akin to Amsterdam paralells and is adjacent to the New York Central. The proposed road does not touch any community or inhabited region not now amply supplied with railroad facilities. The evidence is undisputed that the existing roads are abundantly able to transact all business now offered, or that is likely to be offered for many years to come. If the charges made for transacting such business are exorbitant, there is a better method for curing this evil than by inviting superfluous competition. Furthermore, if the- existing roads between Fonda and Grloversville are making exorbitant charges, this fact may indicate that there is hardly business enough to support them upon reasonable charges, in which case there is obviously no occasion to build another road in a neighborhood already oversupplied. The board is of the opinion and finds that public convenience and necessity do not require the construction of said railroad.”

The testimony offered and produced, not only oral, but that contained in the petitions filed, seems to have been confined almost entirely to expressions of opinion that “ public convenience and necessity ” require the construction of the road in question, without giving any facts upon which such opinion is based, excepting the alleged fact that one of the present railroads, and the principal one, which the board of railroad commissioners finds the proposed road will practically parallel, is making excessive ■charges for freight and passenger transportation. Petitions presenting no facts, nor the evidence thereof, but simply expressing the opinions and desires of the petitioners, are not evidence, and cannot take the place of evidence. Local sentiment, aroused by the alleged misuse or abuse of an existing franchise, affords no sufficient reason for granting another franchise upon the ground that public convenience and necessity require the construction of another road. No evidence was given to show that the amount of passenger traffic or freight traffic is so great as to require an additional road for its accommodation, and I think the evidence before the commissioners abundantly justifies their statement that u the evidence is undisputed that the existing roads are abundantly able to transact all the business offered, or that is likely to be offered for many years to come.” The privilege of constructing and operating a railroad is not one that exists in the incorporators as a common right; it is a privilege or franchise that is granted by the state, and can only be obtained by complying with the laws adopted by the state regulating the granting of such franchises. Prior to the enactment of section 59 of chapter 676 of the Laws of 1892, it was within the power of fifteen or more citizens to form a railroad corporation, and to lay its tracks through any section, upon securing from the property owners the necessary right of way. This section affected a change. It was evidently intended to resist the building of roads not actually needed, in order to protect, not only existing railroads, but also citizens from investing in alluring but profitless enterprises. The propriety and necessity of constructing a road was not left to be determined by enterprising but perhaps ill-informed or ill-advised citizens, or by those seeking by threats of destructive competition to levy tribute upon existing roads, but was placed in the hands of accredited officers of the state, who should act for and in its behalf in determining whether the interests of the state and of the community immediately affected would be promoted by the building of a road. Provisions had theretofore been made to be thereafter referred to, for the correction of abuses in the management of roads already constructed, so that it was no longer necessary to correct evils in the management of existing roads by constructing competent ones. And, before a new corporation can construct a road, the corporation must secure from the railroad commissioners their certificate “ that public convenience and necessity require the construction of such railroad.” The corporation applying for such a certificate necessarily holds the affirmative upon that question. It devolves upon it to show that its construction is required by public convenience and necessity. The certificate does not issue to it simply upon its filing its application, as a matter of right, unless evidence is produced before the board to show that public convenience and necessity require its construction. It is not entitled to it as a matter of right in the event of no one appearing to oppose its application ; nor, if any one does appear in opposition, is he obliged to prove a negative, and convince the board that public convenience and necessity do not require the construction of the road. The burden of proof is upon it to establish the performance by it of the requirements of the law, and to establish the existence of that condition of affairs which will authorize the state authorities to grant a franchise authorizing it to operate its road in the locality proposed. It is applying for something from the state, and it must prove its claim to it under the laws, the same as any person who attempts to establish any other claim or right.

So, also, in applying to this court, the- burden is upon the applicants to show to us affirmatively that the railroad commissioner» have erred in their refusal to grant the necessary certificate. Their determination as to whether they will grant a certificate of public-convenience and necessity is necessarily and properly largely a matter of discretion; not an arbitrary discretion, but a discretion-enlightened and guided by their experience in the affairs of railroads, the'problems of transportation, the needs of the people, together with the special facts brought before them in each particular case. To guide them, where it is claimed existing roads donor. afford the necessary facilities, the commissioners may properly take into consideration the means that the law affords to regulate-the management of railroad corporations, and correct mismanagement and enforce the providing of proper service. From an examination of the records in this case, it seems to me that the railroad commissioners were abundantly justified in finding that it did not appear that “public convenience and necessity” require the “construction of the said railroad as proposed in said articles of association, and as set forth on the maps and profiles filed,” and that they have not abused their discretion, nor can I sáy that they erred in its exercise.

As I have before stated, the opinions of the witnesses sworn in behalf of the application, and the certificates of the petitioners, residents in Amsterdam, Gloversville, and Johnstown, certifying that public convenience and necessity required the construction of the road, are almost entirely based upon the alleged exorbitant charges of the existing railroads, and their belief that rates of passenger and freight traffic will be lessened by the construction of the applicant’s road. In the memorandum of the railroad commissioners, before referred to, it is stated that, if the existing roads are exorbitant in their charges, “this fact may indicate that diereis hard by business enough to support them at reasonable rates in which case there is obviously no occasion to build another road in a neighborhood already supplied.” But it is claimed that the principal company already in existence has recently declared a dividend of eight per cent., and has in addition a surplus in its treasury, and that those facts show that there is no necessity for charging the present rates._ Without inquiring into the truth of such claims, nor for how long a time the existing company has been running and declaring dividends upon its stock, or whether the original investors have from the time of the commencement of their road down to the present time received reasonable returns for their investments, but, for the purposes of this case, assuming that their charges are, under all the circumstances, unreasonable, I think that the railroad commissioners did -not err in holding that that was not a sufficient reason for certifying that public convenience and necessity required the construction of the road. Where there is no railroad in existence in a locality, or when the traffic is so great as not to be properly cared for by one road, or even where there is traffic sufficient to adequately support more than one road, we may say that public convenience and necessity require the construction of another. But where, as in this case, it appears that “existing roads are abundantly able to transact all the business offered, or that is likely to be offered for many years to come,” I do not see how it can be said that public convenience and necessity require the construction of another. The charging of exorbitant rates does not, in the present state of the law, make a case for the building of another road. Such charges may indicate either that there is insufficient business to support the roads with lesser charges, or it may indicate bad management and a grasping disposition on the part of their operators. There is no pretense that there is too much business for the capacity of the existing railroads, and the remedy for the present high charges, if they are unnecessarily high, is not by building an opposition road, which may cripple those already in existence and destroy the value of the investments in them, or lead to the purchasing of the new road by the old companies, but, as indicated in the memorandum of the railroad commission, the remedy is to apply for a reduction of the rates. It is provided by section 161 of chapter 565 of the Laws of 1890 that if in the judgment of the board of railroad commissioners, after a careful personal examination of the same, it shall appear—

“That any change of the rates of fare, for transporting freight or passengers, * * * is reasonable and expedient, in order to promote the convenience and accommodation of the public; that the board shall give notice to the corporation of the change which they deem proper, and if after a fair hearing, the corporation refuses within a reasonable time to make the changes required by the board, the board shall present the facts in the case, to the attorney general, for his consideration and action, and also report them to the legislature.”

Section 162, as amended by chapter 676 of the Laws of 1892, provides that a special term of the supreme court shall have power—

“In its discretion in all cases of decisions and recommendations by the board, which are just and reasonable, to compel compliance therewith, by mandamus, subject to appeal to the general term, and the court of appeals, and upon such appeal the general term and the court of appeals may review and reverse upon the facts as the law.”

These provisions of the statute, together with others which I have not quoted, seem to me to afford a remedy for the alleged grievances against the existing roads. If an application had been made to the railroad commissioners to compel a reduction of the rates, and it had been made clearly to appear that they were exorbitant, and, notwithstanding that fact, the commissioners had refused to recommend the needed relief, so that the only relief at-tamable was by building another road, the case would appear before us in a different aspect. The court must assume, however, that the railroad commission will do its duty in the premises, and, upon its being made to appear to it that the existing railroads are charging unnecessarily high rates for transportation, that it will recommend their reduction. And it must also be assumed that the attorney general will do his duty, and present their recommendation to the court in the event of the railroads refusing to comply with the recommendation of the railroad commission ; and, upon its being so presented, the court will endeavor to dó its duty in the premises.

The only substantial reason given for the opinion that public convenience and necessity require the construction of the applicant’s road being the alleged excessive charges of the existing railroads for freight and passenger transportation, and there being a remedy provided for that by existing laws, it seems to me that the railroad commissioners were correct in declining to issue the certificate in question, and that there is no reason, either upon the facts or from their construction of the law, for reversing their determination, and compelling them to issue the certificate. The application should, therefore, be denied, with the costs and disbursements in this court.

Putnam, J., concurs; Stover, not acting.


author: Cullen, J.

text:
    Charles W. Denike, Resp’t, v. Henry P. De Graaf, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Evidence — Sealed contract.
    Where the action is based upon a sealed contract, a person not. a party to it cannot show that one of the parties thereto acted as agent for him.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      James R. Marvin, for app’lt; H. J. Morris, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of,the plaintiff, entered on the verdict of the jury at circuit, and from an order denying"defendant’s motion for a new trial. The action is to recover damages for deceit in the contract for the exchange of lands. The complaint alleges that one Burnham, acting for the plaintiff, entered into an agreement with the defendant under their hands and seals for the exchange of certain lands, and that the plaintiff was induced to enter into such contract and carry it out by the false representation of the defendant that the land he agreed to convey had cost him $125,000 in trade. The written agreement produced on the trial was between Burnham individually and the defendant, and was under seal,

The first question presented is whether the plaintiff can maintain this action. That he could have maintained no action on the contract is unquestionable, because, as to agreement under seals it is not permitted to show that any of the parties acted as agents tor a principal not named in the instrument. Briggs v. Partridge, 64 N. Y. 364; Schaefer v. Heukel, 75 N. Y. 378. The plaintiff concedes this proposition, but contends that the rule only applies when the action is brought directly on the sealed instrument, and that this action is not on the contract, but for fraud in inducing him to enter into the contract. We are referred to no authority in support of this claim, nor can we find any. The plaintiff was not, in law, a party to the contract. Though Burnham was his agent, the plaintiff was no wise bound in the contract, or liable for its nonperformance. In Squier v. Norris, 1 Lans. 282, the husband, with the authority of his wife, made a contract under seal in his own name for a sale of his wife's land, and she received a sum of money on account of the sale. Yet it was held that a performance of the contract by the wife could not be enforced. We cannot see how a party can be defrauded by the execution of a contract between strangers, and such in law were the parties to the contract to this plaintiff. Upon discovery of a fraud, the party defrauded has two remedies. He may disaffirm the contract, and, tendering the return of what he has received under it, may compel the other party to restore what he has obtained from it; or he may affirm the contract, stand on his bargain, and recover his damages, —the difference between the actual value of what he had received and what would have been its value had the fraudulent representations been proved. Vail v. Reynolds, 118 N. Y. 297; 28 St. Rep. 707. As Burnham was the only party who could have enforced the contract, it would seem clear that he was the only person who could disaffirm it. The right to disaffirm could not well vest in one person, and a right to recover damages in another. Further, as said in Vail v. Reynolds, the action for deceit is an affirmance of the contract. The action is in fact based on the contract. Practically the representation is a warranty which the law incorporates into the contract on account of the fraud of the defendant. It is impossible to separate the title to a right of action for such damages from the title to the contract itself, except by an assignment. The judgment and order denying motion for a new trial and the complaint should be dismissed, with costs.


author: Van Brunt, P. J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Mary A. McGuire, as Executrix of the Will of John Callahan, Deceased.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Executor — Claim—Admission.
    The service of a verified answer by the execution denying liability, in an action commenced against the testator and discontinued after the subitution of the executor, is not equivalent to its rejection when subsequently presented to the executor, but it is established by the failure of the executor to reject or refer it.
    Appeal from the decree, settling the accounts and directing payment of a creditor’s claim.

      W. R. Page, for app’lt; W. W. Niles, Jr., for resp’t creditor.
   Van Brunt, P. J.

In December, 1888, the respondent offered certain real estate at a notion by R. Y. Hartnett & Co., auctioneers. It was knocked down to John Callahan, the appellant’s testator, who made a payment to the auctioneers oil account of the purchase money. He thereafter refused to complete the purchase on the ground that the title to said estate was defective. The property was then resold, and brought a price lower than that which Callahan had bid. On the 20th of February, 1889, the respondent brought an action in the court of common pleas against Callahan, demanding judgment for the deficiency between the two sales, and for the expenses of the resale. Callahan died in April, 1889, before the trial or the action. The appellant was appointed ins executrix, and the action was revived against her as such executrix. An amended complaint was served, setting up the same cause of action ; and in July, 1889, the defendant appeared, and served a verified answer, denying the cause of action. On the 1st of August, 1889, the plaintiff therein moved to discontinue the action in the court of common pleas, which motion was granted and an order thereupon entered. Subsequently, in August, 1889, the respondent brought an action in the same court against the auctioneers, setting up substantially the same cause of action, and demanding the payment to her of the amount deposited by Callahan upon said sale. The issues were tried in February, 1891, and the plaintiff’s complaint was dismissed at the close of her case. In April, 1891, the respondent served upon the executrix a statement of her claim against the estate of John Callahan. This claim the executrix never rejected or offered to refer. On the 3d of February. 1892, the respondent presented a petition to the surrogate, stating that she was a creditor of John Callahan, deceased ; that more than eighteen months had elapsed since the appointment of the executrix, and that she had not accounted, and praying for a judicial settlement of the account. A citation was thereupon issued to the executrix. Certain proceedings were had, and the executrix was ordered to file her account. The executrix then filed her account, and the petitioner objected to it upon the ground that it did not state the amount or nature of her claim. The objections were referred to a referee, who found that the claim of the respondent had been established against the estate of the decedent, and should be paid. This report was confirmed, and a decree thereupon entered, and from that decree this appeal is .taken.

It seems to be assumed or claimed that the denial of the plaintiff’s claim in the action in the court of common pleas was equivalent to a rejection of the same. But the difficulty about the position of the appellant is that the proceeding in the court of common pleas was not under the statute. That action was discontinued, -the respondent preferring to pursue her claim against the estate under the statute. She then presented her claim to the executrix, and the executrix neither rejected nor offered to refer the same ; and after the lapse of a reasonable time, no action being taken upon it by the executrix, it became established. The answer in the action in the court of common pleas had nothing to do with the proceeding under the statute. The executrix was bound within a reasonable time to reject or offer to refer. If she did not, she admitted the claim ; and this was the condition of affairs which appeared before the surrogate, and he was clearly right in directing its payment.

The decree appealed from should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Cornelius N. Bliss et al., Resp’ts, v. Lewis M. Hornthall, Impleaded et al., App’lt. Clement A. Auffmordt et al., Resp’ts, v. Same, App’lt. Thomas A. Wicher et al., Resp’ts, v. Same, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Deposition — Commission.
    An open commission will not he refused for the reason that the testimony has been taken upon an open commission in an action brought by another plaintiff against the defendant involving the same issues, upon which defendant was represented by counsel and had the opportunity to cross-examine the witnesses, unless he consents that the testimony so taken may be read on the trial of the present action.
    Appeal from orders granting plaintiffs’ motion for open commissions herein.

      John V, Bouvier, Jr., for app’lt; Charles E. Hughes, for resp’ts.
   Per Curiam.

The strongest argument against an open commission is that, with the names of the witnesses and the knowledge to be derived from the open commission taken in the case -of Baily v. This Defendant (now on file), plaintiffs are in a position to formulate the necessary interrogatories. If, however, the labor of framing numberless interrogatories can be avoided, it should be. The defendant, by permitting the testimony already taken to be used upon the trial, subject to all proper objections, can avoid a commission, either open or upon interrogatories. Without passing upon the question whether, in such a case as this, an open commission should be issued, we think, upon the fact appearing that one has been issued by consent in a case between another plaintiff and this defendant, involving practically the same issues, upon which defendant was represented by counsel, and had the opportunity of cross-examining the witnesses, that unless he consents to the reading of the testimony so taken he has no just subject of complaint. There is no claim made that the former examination was not proper and fair and exhausive, nor is any good reason given why the testimony so taken could not be used.

The orders should be affirmed, with $10 costs and disbursements.


text:
    Elias Marks, App’lt, v. Benjamin Greenwald et al., Resp’ts.

      (New York City Court, General Term,

      Filed May 28, 1895.

    Bill of particulars — When ordered.
    The plaintiff, in an action against a surety for the misappropriation of funds by his principal, will be required to furnish a bill of particulars of ' his claim, to enable the defendant to frame his answer.
    Appeal from an order requiring plaintiff to furnish a bill of particulars.
   Fitzsimons, J.

This case is one in which a bill of particulars could be ordered by the court upon proper application. The plaintiff sues for the misappropriation of funds by the defendant Weinberg, the defendant Greenwald being his surety. He (Greenwald) asks for an itemized statement of the plaintiff’s claim, certainly a very reasonable request to make, and one which should be granted by the court, unless the defendant Greenwald possessed the sought-for knowledge, which he denies he has, because he swears that it will be impossible for him to answer herein unless the bill of particulars requested is granted him. Therefore, because of such statement, the court had a right, in fact it was its-duty, to make the order appealed from, which is affirmed, with costs.


author: Newburger, J.

text:
    Mary Israel, Resp’t, v. Henry W. Jordan, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed May 28, 1895.)

    Assignment for creditors — Assignee—Surety.
    The obligation of the surety for an assigeee for the benefit of creditors extends simply to funds that come into the hands of the principal as, assignee.
    Appeal from a j udgment in favor of plaintiff.

      Dwight T. Mason, for app’lt; Charles E. Le Barbier, for resp’ts,
   Newburger, J.

This action is brought to recover from the defendant (a surety on a bond of an assignee for the benefit of creditors) the amount of a judgment recovered against the assigneeby the plaintiff for moneys alleged to have been deposited with the assignee subsequent to the assignment. The defendant, by his answer, alleged that' the moneys for which plaintiff had recovered judgment against the principal of the defendant were not moneys which came into his hands as assignee, and not moneys for which, as such surety for such assignee, be was in any wise liable. At the close of the plaintiff's case, the defendant moved for a dis-‘ missal of the complaint on the grounds: First, that it appeared that the moneys for which recovery was sought were not part of the assigned estate ; second, that there was no evidence that theassignee failed to account for any money that came into his hands as such assignee, or failed to comply with any decree of the court having jurisdiction of assigned estates.

We think the motion should have been granted. It appears that the firm of L. Lazarus & Co. made an assignment for the benefit of creditors to the defendant Louis Jordan on or about the 25th day of August, 1890; that on the 30th day of September, 1890, the defendant Henry W. Jordan executed a bond for the faithful discharge by Louis Jordan of His duties as such assignee. It also appears that the .plaintiff, subsequent to the assignment, and on or about the 9th day of September, 1890, deposited with the said Louis Jordan certain moneys to be checked or paid out for the benefit of the plaintiff. The receipt by the assignee of plaintiff’s money was not an official act; it was his personal act, for which his surety was in no way liable. Defendant, in executing the bond as surety for the assignee for the benefit of his creditors, simply undertook that the assignee should faithfully “ execute and discharge the duties of such assignee, and duly account for all moneys received by him as such assignee.” The obligation of the surety simply extended to funds that came into his hands as assignee.

The judgment appealed from must therefore be reversed, and a new trial granted, with costs to appellant to abide the event.


author: Osborne, J.

text:
    The People ex rel., John Curran, Pl’ff, v. Board of Excise Commissioners of the City of Brooklyn, Resp’ts.

      (Brooklyn City Court, General Term,

      Filed April, 1895.)

    Excise — License—Transfer.
    Tire board of excise commissioners is vested with a discretion as to the location of licensed places, but this discretion must be properly, fairly, impartially and consistently exercised, without discrimination in favor of one as against another applicant.
    Certiorari to review a decision of the board of excise commissioners of the city of Brooklyn refusing to grant relator’s application for a transfer of a license.

      Francis A. McCloskey, for relator; Jacob Brenner, for resp’ts.
   Osborne, J.

The relator held a license to sell liquors at Ho.. 99 Columbia street, issued to him August 23, 1894. On December 10, 1894, he made application to the board of excise for leave to transfer said license to the premises Ho. 482 Hicks street, between Degraw and Harrison (such location being on a block some 600 feet long), and he complied with all the rules and regulations of the board of excise for the purpose of obtaining such transfer. On December 27, 1894, a remonstrance, signed by persons alleging themselves to be residents and property owners on said block, was filed with the board, protesting against the granting of said license, on the ground that there were already four saloons on the block, and that protestants believed “the same to be ample for all the wants and necessities of the public residing thereon,” and “that any increase in the number of saloons would be inimical to the best interests of that community." In accordance with the practice of the board of excise, it called upon the police captain of the precinct in which the premises were located to answer certain inquiries on a form of blank used for that purpose. In response to the question on such blank : “Do you re■commmend the granting of the application? If not,.state reasons,” — the captain answered: “No; place not needed.” On a public hearing afforded the protestants, but one property owner was examined in opposition to granting the transfer applied for. He owned the premises No. 480 Hicks street, and his opposition was based on the ground that there were more than sufficient saloons already on the block, and the police captain also testified that he reported adversely to the application on the ground that “the place is not required; there are enough there alreadyit was further shown by him that the block was about 600 feet long, .and that there were four saloons on the blqck, counting both sides ■of the street. On January 4, 1895, the relator’s application was refused, and he now seeks by certiorari to review the determination of the board of excise refusing his application. In the return to the writ of certiorari it appears that the board of excise denied the application of the relator “on the ground that the large number of signatures on the protest was of adjacent residents, and that, in the opinion of the commissioners, there are sufficient licensed places in that vicinity.” If the foregoing facts stood alone, T .should not be inclined to interfere with the disposition by the commissioners of excise of the application of the relator, as, in my opinion, they are vested with a discretion as to the location of licensed places. This discretion,, however, must be properly, fairly, impartially, and consistently exercised, without discrimination in favor of one applicant as against another.

It further appears from the return by the commissioners to the writ that on and prior to November 26, 1894, one Diskin held a license from the board of excise for the sale of liquors at No. 456 Hicks street, a place located on the same block and about 150 feet from the place to which the relator sought to transfer his license. On November 26, 1894, and about two weeks before the relator made his application for a transfer, the board of excise gave Diskin leave to transfer his license from No. 456 Hicks Street to No. 7 Pulton street, and after that time the premises No. 456 Hicks street ceased to be a liquor store. On January 10,1895, six days after relator’s application had been denied, one Bielmeier applied to the board for leave to transfer his license from No. 381 Palmetto street to No. 456 Hicks street, being the premises formerly occupied by Diskin. Two of the protestants against granting the relator’s application appearing as petitioners in favor of granting Bielmeier’s application. The police captain recommended the granting of this application, and on January 23, just nineteen days after relator’s application had been denied on the ground of the protest of the adjacent residents, and that there were “sufficient licensed places in that vicinity,” the board of excise granted the application of Bielmeier for another licensed place in the same vicinity. It is sought to sustain or explain this action of the commissioners on the ground that there was no protest filed, and that, when the police captain recommended the granting of the license to Bielmeier at No. 456 Hicks street, he thought that the liquor business previously carried on there had only been temporarily suspended, and that he was ignorant of the transfer of Diskin’s license from that place to No. 7 Fulton street. This may acconnt for the apparent inconsistency in the reports of the police captain, but it did not alter the facts, and those facts were known to or accessible to the commissioners. The granting of the license to Bielmeier to sell liquors at No. 456 Hicks street in less than three weeks after the refusal to grant relator’s application to sell liquors .at 482 Hicks street on the ground that there were already “sufficient licensed places in that vicinity,” in the absence of any satisfactory explanation or any change in the surroundings, is so entirely inconsistent with a fair, impartial exercise of discretion based on “good or valid reasons,” and is evidence of such discrimination in favor of Bielmeier’s application as against that of the relator, that I am forced to the conclusion that the application of the relator was “arbitrarily denied,” and that the action of the board of excise should be reversed.

Let an order be entered directing the board of excise to grant the application of relator, and awarding him costs on this proceeding. Ordered accordingly.


author: Gildersleeve J.

text:
    New York Press Club, Pl’ff, v. Samuel Loyd, Def’t.

      (New York Superior Court, Special Term,

      Filed April, 1895.)

    Deposition — Examination before trial — Affidavit.
    An affidavit, upon which an order for the examination of a party before trial is made, where it is entirely upon information and belief and states the source of such information, but does not assign any reason why an affidavit is not made by the party from whom the information is obtained, is insufficient.
    Motion to vacate an order for the examination of defendant to aid plaintiff in framing his complaint

      C. H. Hodges, for the motion; C. M. Beattie, opposed.
   Gildersleeve J.

The affidavit, upon which the order for the examination of the defendant to aid in framing the complaint was granted, is made by the plaintiff’s attorney, whose essential allegations therein contained are made on information and belief, derived from parties therein named, without producing the affidavits of such persons or excusing their nonproduction. It is a general rule of practice that an affidavit upon which an order for the examination of a party before trial is made, which is entirely upon information and belief, and which states the source of such information, but does not assign any reason why an affidavit is not made by the party from whom the information is obtained, is insufficient, and the order should be vacated. See Cross v. Insurance Co., 17 Civ. Proc. R. 199 ; 24 St. Rep. 860; Koehler v. Sewards, 29 St. Rep. 364; In re Bronson, 78 Hun, 351; 60 St. Rep. 725. It therefore seems to me that the order must be vacated. However, as it is discretionary with the court to make an order for defendant’s examination after having vacated á former one (see Simpson v. Budd, 9 Reporter, 489), the plaintiff may renew the application on proper affidavits, upon' payment to defendant’s attorney of $10 costs of motion. Motion to vacate order granted, with leave to renew on payment of $10 costs.


author: Gildersleeve, J.

text:
    Caroline Correll, Pl’ff, v. Adele Granget, Def't.

      (New York Superior Court, Special Term,

      Filed April, 1895.)

    Service and proof — Summons.
    - It is not good service of a summons to deposit and leave it on a chair in the room where the defendant then was, without offering to deliver it into her hands, or even asking for her by name or stating the nature of the paper.
    Motion to set aside the service of a summons and complaint as irregular.

      A. I. Sire, for the motion ; E. P. Schell, opposed.
   Gildersleeve, J.

It seems to me that the preponderance of evidence shows that the service of the summons and complaint was irregular. Defendant presents the affidavit of a disinterested! eyewitness, in addition to her own, stating that a stranger came into the room in which defendant happened to be at the time, and, without asking for defendant by name, nor stating the nature of the papers, deposited them in a chair, and directly afterwards departed, not a good service. The papers should have been handed to defendant, and, if she refused to take them, the server should have informed defendant of the nature of the papers, and of his purpose to make service of them, and then he should have laid them down at any appropriate place in- the presence of the defendant. See Davison v. Baker, 24 Ho.w. Pr. 39. It therefore seems to me that the motion to set aside the service of the summons and complaint must be granted, but without costs. Motion granted, without costs.


text:
    Giovanni Siriani, Pl’ff, v. Herman H. Deutsch, Def’t.

      (New York Superior Court, Special Term,

      Filed April, 1895.)

    1. Pleadings — Irrelevant matter.
    A motion to strike out of a pleading matter alleged to be irrelevant, redundant or scandalous must be noticed within twenty days from the service of such pleading.
    3. Same — Answer—Inconsistent defenses.
    The objection, to an answer, of inconsistency of defenses is not available.
    3. Same — Frivolous.
    A portion of an answer will not be stricken out on the ground that it is frivolous.
    Motion to strike out the answer “as setting up inconsistent defenses,” and part of the answer as irrelevant, redundant and frivolous.

      Antonia C. Astarita, for the motion; Horwitz & Hershfield, opposed.
   Gildersleeve, J.

This is a motion by the plaintiff to strike out the answer herein “as setting up inconsistent defenses,” and part of said answer as irrelevant, redundant, and frivolous. It seems to me that this motion should be denied. In the first place, the motion papers herein were served more than twenty days after the service of the answer. The practice of the court requires that a motion to strike out of any pleading matter alleged to be irrelevant, redundant, or scandalous must be noticed within twenty days from the service of such pleading. Rule 22, General Buie of Practice. Where a failure to serve such notice within the time required by the rule is shown in opposition to the motion, at the hearing, the motion must be denied. Gibson v. Gibson, 68 Hun, 381; 51 St. Rep. 897. In the second place, even if we assume that the defenses are inconsistent, still the defendant is at liberty to put his defense upon distinct, and even inconsistent, grounds. See Goodwin v. Wertheimer, 99 N. Y. 150. A party may plead plead as many defenses as he has, and the objection of inconsistency if not available. Ross v. Duffy, 12 St. Rep. 584. In the third place, with regard to the ground that a portion of the answer is frivolous, a frivolous answer is not stricken out, but judgment is granted thereon. Colt v. Davis, 20 St. Rep. 309. It is true, if an answer is frivolous, judgment may be granted thereon, but such an answer must be treated as an entirety, and judgment cannot be rendered thereon where a part only of it is frivolous. The court has no power, under the Code, to order judgment upon a part of an answer which rpay be frivolous, where a part is held good, and there are issues remaining to be tried. Strong v. Sproul, 53 N. Y. 497; Colt v. Davis, supra. It is not claimed that all of the answer herein is frivolous, but the motion is made only with regard to a portion of it.

For the reasons above set forth, the motion must be denied, with $10 costs. Motion denied, with $10 costs.