text:
    Alicia Maud Bliss, App’lt, v. Grace F. West et al., Resp’ts.

      B. H. Cowdrey, for app’lt; G. A.Seiras, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 858.


source: Caselaw Access Project

license: Public Domain

text:
    Henry M. Burtis, Resp’t, v. John Cassidy, App’lt.

      Chas. J. Patterson, for resp’t; Jos. A. Burr, Jr., for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 581.


text:
    Anton Nowak, App’lt, v. George F. Waller et al., Resp’ts.

      John R. Reid, for app’lt; Timothy M. Griffing and Wilrnot M. Smith, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 458.


text:
    Chloe E. Persons et al., App’lts, v. Lucy M. Seargent, Imp’ld, Resp't.

      Watson M. Rogers, for app’lts; S. C. Huntington, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 1134.


text:
    Supreme Court—General Term—Second Department.
    Filed December 14, 1891.
    Edgar Eighmie v. Jacob Townsend.
   Motion for leave to appeal to the court of appeals granted.


author: Mayham, P. J.

text:
    General Term—Third Department
    Filed February 12,1892.
    James C. Birge, Resp't, v. The Berlin Iron Bridge Co. et al., Appl'ts.
    Motion to resettle order. , _ ,
    , , Daniel Magone {Thomas Spratt, of counsel), for^app Its; A. D. Walds and Qeoi'ge B. Malby, for resp't. ' -
   Mayham, P. J.

I am of opinion that the order in this case made upon the decision of the general term of this court which was handed down on the 30th of November, 1891, should show that that decision was made upon questions of law only.

The conclusion reached by the justice delivering the prevailing opinion was upon the consideration of the questions of law raised and involved in the case, and not upon any determination of any disputed question of fact, or m the exercise of any discretionary power vested in the court.

The order designated as No. 1 in the moving papers should stand as the order of the court.

Motion granted.

Herrick, J., concurs.


author: Mayham, J.

text:
    James C. Birge, Resp’t, v. The Berlin Iron Bridge Co. et al., App’lts.
    Motion for reargument.

      Daniel Magone (Thomas Spratt, of counsel), for app’lts; A. D. Wales and George B. Malby, for resp’t.
   Mayham, J.

I see no beneficial purpose that can be attained by a reargument of this case at general term of this court.

The questions of law were fully considered on the hearing before this court and a conclusion reached by a majority of the court, wine., on a reargument would in all probability be adhered to, especially as the court is not now constituted as it was at the time of the former argument and decision. Nor do I think any time or expense would be saved by such reargument, as the questions involved will not probably be satisfactorily settled, except upon the decision of the court of appeals.

J think, therefore, that the motion for reaxgument should be denied.

Herrick, J., concurs.


text:
    General Term—Fourth Department.
    Filed February 13, 1892.
    Emma Fish, Resp’t, v. The Press Publishing Company, App'lt.
   Order affirmed, with .ten dollars costs and disbursements

Memorandum by Martin, J.


text:
    Thomas R. McQuade, Resp’t, v. Lodema Scrafford, App’lt.
   Judgment affirmed, with costs.


text:
    Louis House, Resp’t, v. William Patrick, App’lt.
   Judgment and order affirmed, with costs.


text:
    William W. Gilmore v. Edward E. Ham.
   Motion denied.


text:
    Frank E. Moulton, Resp’t, v. Denis O’Sullivan, App’lt.
   Motion denied, with ten dollars costs.


text:
    In the Matter of Proceedings to Disbar William Youmans.
   Motion denied without prejudice to motion to dismiss the proceedings on notice to the petitioner.


text:
    Uri C. Van Vleck et al., Resp’ts, v. Emilus J. Enos et al., App’lts.
   Order reversed, with ten dollars costs and disbursements, and motion granted nune pro tune, without costs.


text:
    Uri C. Van Vleck et al., Resp’ts, v. Emilus J. Enos et al., App’lts.
   Order modified so as to allow a new trial upon payment of the costs of the action as taxed by the clerk of Madison county, and further modified by striking out the last two paragraphs thereof as they appear in the appeal book.


text:
    Henry C. Hermans, App’lt, v. Lewis M. Smith, Resp’t.
   Order reversed, without costs.


text:
    In the Matter of the Probate of the last Will of Maria M. Hungerford. Wesley H. Osincup, App’lt, v. Avilla C. Burton et al., Resp’ts.
   Decree of the surrogate’s court of Broome county reversed, and a new trial of the issues of fact directed before a jury of the circuit court of Broome county; to be settled before Martin, J. Costs of this appeal to abide the final direction of the surrogate’s court.


text:
    Julia L. De Camp et al., Ex’rs, App’lts, v. The St. Lawrence & Adirondack Railroad Co., Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the St. Lawrence & Adirondack Railroad Co. to acquire Real Estate of Julia L. De Camp.
   Order affirmed, with ten dollars costs and disbursements.


text:
    James A. Jaycox, App’lt, v. Richard W. Ellis, Impl’d, Resp’t.
   Order modified by allowing the judgment to be amended nunc pro tune, so as to conform to the provisions of the Code relating to the eniry of judgment against joint debtors, and as modified order affirmed, without costs of this appeal to either party; the form of the order to be settled before Martin, J.


text:
    Augustin H. Pease, Ex’r, Resp’t, v. Benjamin F. Pease et al., App’lts.
   Judgment affirmed, with costs of the appellants and respondent payable out of the funds.


text:
    John Savell, App’lt, v. George W. Wauful et al., Resp'ts.
   Judgment and order affirmed, with costs.


text:
    Fanny Hall, Resp’t, v. Erastus Hall, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Joseph Kuhn et al., Resp'ts, v. Charles Ess et al., App’lts.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    Daniel M. Tuttle, Assignee, v. Richard B. Ruby.
   Held, that the defendant is entitled to offset the amount deposited by him with the plaintiff’s assignors.

Judgment ordered for the defendant, with costs.


text:
    William Lord, App’lt, v. Albert H. Atkins et al., Resp’ts.
   Judgment affirmed, with costs.


text:
    Susan F. Anderson et al., Resp’ts, v. Charles W. H. Carter, App’lt.
   Judgment i eversed on the law and facts, and a new trial ordered, with the costs of this appeal to abide the event.


text:
    Mary E. Van Marter, App’lt, v. Sylvanus Van Marter, Resp’t.
   Judgment and order reversed on the law and facts and a new trial ordered, with the costs of this appeal to the appellant.


text:
    Joseph H. Shullenburg, Superintendent of the Poor of Schuyler county, App’lt, v. James M. Douglas, Overseer of the Poor of the town of Newfield, Resp’t.
   Judgment and order affirmed, with costs.


text:
    Thomas S. Smith, Resp’t, v. James H. Bouton, App’lt.
   Judgment and order affirmed, with costs.


text:
    Michael C. Gavin, Resp’t, v. The Washington F. & M. Ins. Co., App’lt.
   Judgment and order reversed and a new trial ordered, with costs to abide the event.


text:
    In the Matter of Betsey Ann Mason, a supposed lunatic, App’lt, v. Alanson Hicks, Resp’t.
   Order affirmed, without costs of appeal to either party.


author: Per Curiam

text:
    The Glenside Woolen Mills v. Edward Hannan, Superintendent of Public Works, et al.

    Motion denied.
   Per Curiam

opinion filed with the clerk of Broome county.


text:
    Bryan H. Osborne, Ex’r, Resp’t, v. The Equitable Accident Association of Binghamton, App’lt.
   Interlocutory judgment affirmed, with costs, with leave to answer upon payment of costs of the demurrer and of this appeal.


text:
    Wilson H. Gardenier, App'lt, v. David P. Morehouse, Impl’d, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    General Term—Fifth Department.
    Filed January 22, 1892.
    Sarah F. Galusha, App’lt, v. Norman H. Galusha et al., Resp’ts.
   Interlocutory judgment appealed from affirmed.


text:
    Mary Mulligan, Adm’rx, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
   Judgment and order appealed from affirmed.


text:
    Percy Dunham, App’lt, v. Marion P. Worthy, Resp’t.
   The court declines to consider this appeal for the reason that the appeal hook does not contain a decision in writing filed by the court pursuant to g 1010 of Code Civ. Pro., nor any direction for the final or interlocutory judgment to. be entered pursuant to g 1021.


text:
    Charles Sweeney, Resp’t, v. The City of Buffalo, App’lt.
   Judgment and order appealed from affimerd.


text:
    In the Matter of the Application of The Rochester Electric R. Co., Resp’t, to Acquire Lands of Jennie S. Wilkins et al., App’lts.
   Order appealed from affirmed, with costs.


text:
    Andrew Rogers, App’lt, v. Edwin Le Van et al., Resp’ts.
   Judgment of county court of Niagara county appealed from affirmed, with costs.


text:
    In the Matter of the Estate of Josiah H. Monroe.
   Decree of the surrogate of Chautauqua county appealed from affirmed, with costs payable by the appellant personally.


text:
    Caroline Nellis, Resp’t, v. The Brooklyn Life Insurance Co. of New York, App’lt.
   Judgment appealed from affirmed.


text:
    Mary G. Hart, Resp’t v. Edward C. Selover, Ex’r, App’lt.
   Order appealed from denied, with ten dollars costs and disbursements to be paid by the appellant personally.


text:
    Corydon Fisk, Overseer of the Poor of the Town of Hume, Resp’t, v. Fred P. Bolton, App’lt.
   Judgment of county court of Allegany county appealed from affirmed, with costs.


text:
    Edward W. Hankins, Resp’t, v. The N. Y., L. E. & W. R. R. Co., App’lt.
   Motion to amend order denied.


text:
    Fred R. Gray, Resp’t, v. The Rochester City & Brighton R. R. Co., App’lt.
   Motion for re-argument or for leave to appeal to the court of appeals denied.


text:
    George W. Cole, Resp’t, v. Sidney B. Roby, App’lt.
   Motion for re-argument or for leave to appeal to the court of appeals denied.


text:
    Betsey Whitman, Adm’rx, App’lt, v. Matthew F. Foley et al., Resp’ts.
   Motion for a re-argument denied.


text:
    Giles H. Boyd, Resp’t, v. William Bassett, Imp’ld, App’lt.
   Motion for re-argument or for leave to appeal to the court of appeals denied.


text:
    Eliza Rice et al., Resp’ts, v. John W. Calkins et al., App’lts.
   Motion to dismiss denied, with ten dollars costs.


text:
    New York Common Pleas—General Term.
    Filed December 23, 1891.
    David S. Graham, App’lt, v. Robert B. Merritt, Resp't.
    Appeal from ninth district court.
   Judgment affirmed, with costs.


text:
    Edward Glock, App’lt, v. John Hammond, Resp’t.
    Appeal from third district court.
   Judgment affirmed, with costs.


text:
    Clarence Davis, Resp’t, v. Charles Wolnisky, App’lt.
    Appeal from fourth district court.
   Judgment reversed and new trial ordered, with costs to appellant to abide the event.


text:
    Jacob Weisz, Resp’t, v. Levy Brenner, App’lt.
    Appeal from fifth district court.
   Judgment affirmed, with costs.


text:
    Hugh King, Resp’t, v. George L. Link et al., App’lts.
    Appeal from third district court.
   Judgment affirmed, with costs.


text:
    Morris Young, Resp’t, v. Emma Bruns, App’lt.
    Appeal from seventh district court.
   Judgment affirmed, with costs.


text:
    Mary H. Tousey, Resp’t, v. Frederick Eschner, App’lt.
    Appeal from eleventh district court.
   Judgment affirmed, with costs.


text:
    Filed January 7, 1892.
    The People ex rel. John Ward v. Henry D. Purroy et al.

   Motion for re-argument denied.


author: Per Curiam.

text:
    Filed February 1, 1892.
    Fraser C. Fuller, Resp’t, v. Edward Kemp, Jr., App’lt.
    Motion for re-argument, or leave to appeal to the court of appeals.
   Per Curiam.

Motion for re-argument denied. . Leave to go to the court of appeals granted.


text:
    The People v. Frank A. Smith and Francis J. Fitzpatrick.
    Motion to vacate judgment entered on a forfeited recognizance.
   Per Curiam.

On the former application it did not appear that the People had not been prejudiced by the delay, but as that fact is now made to appear by the papers submitted on this application, the motion is granted, the forfeiture remitted, and judgment directed to be vacated. *


text:
    Mary A. Hall, Resp’t, v. Thomas Canary, App’lt.
    Appeal from a judgment of the general term of the city court affirming a judgment for the plaintiff, entered on the verdict of a jury in an action to recover for merchandise sold and delivered to the defendant.

      Edward Browne, for resp't; Alberti. Sire, for app’lt.
   Per Curiam.

The only exceptions which appear in the record of this appeal, and are urged for reversal of the judgment, are those taken to the trial justice’s exclusion of certain questions addressed to the witnesses by defendant’s counsel under objection by plaintiff’s counsel. These questions were so palpably incompetént that it. seems a mere waste of time to discuss the exceptions taken to their exclusion.

Judgment affirmed, with costs.


text:
    Filed February 24,1892.
    Henry F. Booth, Resp’t, v. Albert B. Simpson et al., App’lts.
    Appeal from seventh district court.
   Judgment affirmed, with costs.


text:
    Bernhardt Kaskel, App’lt, v. George Zucker, Resp’t.
    Appeal from judgment of the seventh district court.
   Judgment affirmed, with costs.


text:
    The U. S. Electric Light & Power Co., App’lt, v. Joseph Rimoldi, Resp’t.
    Appeal from judgment of the second district court.
   Judgment affirmed, with costs,


text:
    Filed March 7, 1892.
    The Health Department of the City of New York, Resp’t, v. The Directors, Church Wardens and Vestrymen of Trinity Church, App’lts.
    Motion for leave to appeal to court of appeals.
   Motion granted.

See 43 St. Rep., 142.


text:
    Martin Smith, App’lt, v. John P. Banta, Resp’t.
    Motion to strike cause from calendar for non-service of printed papers and for judgment of affirmance.
   Motion granted.

Judgment affirmed, with costs.


text:
    Wm. Downey, Resp’t, v. John J. Gorman et al., Appl’ts (two appeals).
    Appeal from order of general term of the city court affirming order of special term.
   Appeal dismissed, with ten dollars costs.


text:
    Wm. Downey, App’lt, v. Henry McAleenan et al., Resp’ts (two cases).
    Appeal from order of the general term of the city court reversing order of the special term.
   Appeal dismissed, with ten dollars costs.

See 42 St. Rep., 672.


text:
    Jas. S. Virtue & Co., Limited, Resp’ts, v. John Beacham, App'lt.
    Appeal from judgment of the city court.
   Judgment affirmed, with costs.

Affirming 41 St. Rep., 466.


text:
    Filed March 8, 1892.
    Wm. Gray et al., App’lts, v. Abram Wakeman, Resp’t.
    Appeal from judgment of the city court.
   Judgment affirmed, with costs.

Affirming 40 St. Rep., 646.


text:
    Filed March 9, 1892.
    The East River Electric Light Co., Resp’t, v. Francis A. Clark, App’lt.
    Appeal from judgment of the city court.
   Judgment affirmed, with costs.


text:
    Ida Simon, Resp’t, v. Simon Scheuer, App’lt.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    Filed March 10, 1892.
    Henry W. Steinhousen, Assignee, Resp’t, v. John Mason, App’lt.
    Appeal from order of this court, made at special term, by Hon. H. Bibchoef, Jr.
   Order affirmed, with costs.


text:
    Filed March 11, 1892.
    Robt. Hill, Resp’t, v. Moritz Kummings, App'lt.
    Appeal from judgment of the eighth district court.
   ■ Judgment affirmed, with costs.


text:
    Wm. Darling, Resp’t, v. John Rowan, App’lt.
    Appeal from judgment of the sixth district court.
   Judgment affirmed, with costs.


text:
    Filed March 17, 1892.
    Cornelius C. Hickok, App’lt, v. Horace K. Thurber, Resp’t.
    Appeal from order of the general term.
   Order appealed from affirmed, with costs, and judgment absolute for the defendant.


text:
    Filed March 18, 1892.
    The Lamson Consolidated Store Service Co. v. George Hartung.
   Motion for re-argument granted.


text:
    David Mackey, Jr., v. Aaron Kahn.
   Motion for leave to appeal to court of appeals denied, with ten dollars costs.


text:
    Paul Irrera, Resp’t, v. Hannah Hart, App’lt.
   Motion to dismiss appeal denied and appeal set over for May term.


text:
    Virginia W. Baldwin, Resp’t, v. Wilhelmina A. Thibadeau, App'lt.
   Motion for re-argument denied, but appellant may have leave to appeal to the court of appeals, if he desires so to do.

See 43 St. Bep., 157.


text:
    The People v. Samuel Samuels and Julius Israel.
   Per Curiam.

The moving papers fail to disclose that anyr diligence was used to find the complainant and bring him into court at the trial. The facts required by the former decision of this court in the case have not yet been shown. The application to discharge the forfeited recognizance and judgment must be denied.


text:
    Jastrow Alexander, App’lt, v. Jas. R. Griswold, Resp’t.
    Appellant’s motion for leave to appeal to the court of appeals.
   Per Curiam.

The principles governing the decision of this appeal, stated in the well considered opinion of the general term, are abundantly sustained by authority, which appears from the cases cited, and appellant’s counsel fails to show that they were not correctly applied to the facts of the case at bar.

This motion should be denied, with costs.


text:
    New York Superior Court—General Term.
    Filed January 11. 1892.
    The People ex rel. Nally v. Charles F. MacLean et al.

   Writ dismissed.


author: Gilderslegve, J.

text:
    Filed January 29, 1892.
    Annie C. Sperb, Resp’t, v. The Metropolitan Elevated Railway Company et al., App'lts.
    Appeal from a judgment entered on report of a referee, on February.il, 1891, which awards plaintiff $1,457, with interest from January 31, 1891, to date of judgment, for past damages sustained by her on account of the operation and maintenance of defendants’ elevated railroad in front of premises Ho. 934 Sixth avenue, besides $180.18, her costs, and $150 granted as an extra allowance. The judgment further enjoins the defendants from maintaining or using their elevated railroad structure, or operating their railroad thereon, in front of said premises Ho. 924 Sixth avenue, except on the payment to plaintiff of $2,350 as the price of so much of her property in the street as has been taken by defendants.

      Dames & llapallo, for app’lts; Edwin, M. Eelt, for resp’t.
   Gilderslegve, J.

We find no errors in the admission or exclusion of evidence that are of sufficient weight to warrant a reversal of the judgment. The case seems to have been carefully tried, and a fair preponderance of evidence justified the findings of the referee.

The judgment appealed from is affirmed, with costs.

Dugro, J., concurs.


author: Gildersieeve, J.

text:
    James S. Shady, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.
    Appeal from a judgment entered on the report of a referee.

      Davies & llapallo, for app’lts; Edwin M. Felt, for resp’t.
   Gildersieeve, J.

The judgment appealed from fixes the past damages at $435, awards the plaintiff'$169.93 costs, and enjoins the defendants from maintaining their elevated railroad in front of the plaintiff’s premises, Ho. 943 '■Sixth avenue, unless they pay the plaintiff $1,500 within the time specified, together with interest thereon from the date of the entry of judgment.

The appellants urge that the awards are excessive, and not justified by the evidence. To prove this, their counsel has made an analysis showing the rental value of the property in question, and also the difference in value of other property in the neighborhood before and since the building of the elevated road.

Tlie testimony bearing upon these points was, no doubt, carefully weighed by the learned referee in his consideration of the case, and the fair preponderance of evidence justifies the judgment. There are no errors in the rulings of sufficient weight to warrant a reversal.

The case of Sperb v. Met. El. R. Co., cited by the appellants, is in conflict with the decision of Suarez v. Man. R. Co., 39 St. Rep.. 549, an authority of •equal value, The case of Mine v. Man. R. Co., cited by the appellants, has ■been decided adversely to the appellants by the court of appeals.

For the reasons above indicated, the judgment is affirmed, with costs.

Freedman and McAdam, JJ., concur.


text:
    Alexander McSorley, Resp’t, v. John G. Prague, App’lt.
    Appeal from judgment entered on the report of a referee.

      Charles W. Dayton, for app’lt; Hatch & Warren, for resp’t.
   Per Curiam.

We find no errors in the rulings of sufficient weight to warrant a reversal. The "testimony satisfactorily sustains the findings of the referee, and justifies the judgment rendered.

For the reasons set forth in the opinion of the referee, the judgment is .affirmed, with costs.

Freedman, McAdam and Gildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Filed March 14, 1892.
    Lewis Seasongood et al., Resp’ts, v. The New York El. R. R. Co. et al., App’lts.
    Appeal from judgment in favor of plaintiffs, entered on the report of a •referee.

      Tackett & Bennett, for resp’ts; Davies & Rapallo, for app’lts.
   Gildersleeve, J.

This is an action for damages to the fee and rental "values of plaintiffs’ premises Nos. 760, 763, 764, 766, 768, 770, 773 and 774 Third avenue,'in the City of New York, caused by the maintenance and operation in front thereof of the defendants’ elevated railroad.

The judgment allows defendants to pay to plaintiffs the sum of $11,500, ■with interest from the date of the entry of judgment, in avoidance of the injunction; and it also awards to the plaintiffs the sum of $3,070, for past damages sustained from March 33, 1889, to the date of the trial, with interest from the date of the trial to the date of the entry of the judgment, together with $480.18 costs, extra allowance and disbursements.

The case seems to have been carefully tried, and we find no errors in the admission or exclusion of testimony that call for a reversal of the judgment.

The evidence fairly sustains the findings of the referee, and justifies the judgment..

It therefore follows that the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J. concur.


text:
    John M. Otter, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.
    Appeal from a judgment, entered on the report of a referee, in favor of the plaintiff.

      Davies & Rapallo, for app’lts; Saekett & Bennett, for resp’t.
   Gildersleeve, J.

This is an appeal by the defendants from a judgment in favor of the plaintiff, entered on the report. of a referee. The judgment restrains and enjoins the defendants from maintaining and operating their elevated railway in front of plaintiff’s premises, No. 946 Second avenue, in the ■city of New York, unless the defendants pay to the plaintiff the sum of $3,100 in exchange for a conveyance and release of the property taken by them; and the judgment also decrees that the plaintiff recover of the defendants the sum of $1,783.76, past damages, interest, costs and extra allowance.

We find no questions of law arising on this appeal that have not already been repeatedly decided against the defendants, except so far as the rulings on the admission of evidence is concerned; and as to these rulings of the referee, we find no error of sufficient weight to warrant a reversal of the judgment.

A fair preponderance of evidence sustains the findings of the referee, and justifies the judgment.

It, therefore, follows that the judgment appealed from must he affirmed, with costs.

Sedgwick, Ch. J., and Dugbo, J., concur.


author: Gildebsleeve, J.

text:
    Samuel Weiss et al., Resp’ts, v. The Metropolitan Elevated Railway Company et al., App’lts.
    Appeal from a judgment in favor of plaintiffs, entered on the report of a. referee.

      Davies <& Sapallo, for app’lts; Sackett & Bennett, for resp’ts.
   Gildebsleeve, J.

The judgment permits the defendants to pay to the plaintiffs the sum of $1,700 in avoidance of the injunction restraining the defendants from maintaining and operating their elevated railroad in front of. plaintiff’s premises, No. 952 Second avenue, in the city of New York; and; awards to the plaintiffs the sum of $878.31, as past damages and interest thereon, and $132.43 as costs and disbursements.

The case seems to have been carefully tried hy the learned referee, and we find no errors in the admission or exclusion of evidence that require a reversal of the judgment. The evidence fairly sustains the findings of the referee and warrants the judgment.

It, therefore, follows that the judgment appealed from must he affirmed, with costs.

Sedgwick, Oh. J., and Dugbo, J., concur.


text:
    Mary Cluff, Plff, v. Henry S. Day et al., Def’ts.
   Motion for re-argument denied.

See 42 St. Rep., 960.


author: Adams, J.

text:
    Wesley Mandeville, Rec’r, Resp’t, v. Edward H. Avery, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1.' Res ad judicata—Pleading.
    To render a judgment available in bar of an action commenced prior to its entry, it must be pleaded by supplemental answer.
    3. Same—Chattel mortgage—Replevin.
    In an action to set aside two chattel mortgages and recover the proceeds of sale thereunder, a judgment in an action of replevin, declaring the defendant to be the owner, was interposed in bar. One of the mortgages was concededly valid. Held, that in the absence of evidence to the contrary it would be assumed that the replevin action adjudicated'that his title and right of possession were by virtue of the valid mortgage, and that the judgment could not be used as evidence against plaintiff’s claim to the surplus moneys held by him after payment of his valid mortgage.
    Appeal from a part of a judgment at the Monroe equity ferm in favor of the plaintiff on the 29th day of June, 1891.
    The action was brought by the plaintiff as the receiver in supplementary proceedings to set aside two chattel mortgages executed by defendant Beck, and to recover the proceeds of the sale of the property covered by the mortgages, or to recover the amount of Beck’s equitable interest therein. The following is the opinion below:
   Adams, J.

Upon the former trial of this case at the circuit, I ■was impressed with the idea, that however much the defendant Avery had laid himself open to the charge of perpetrating a legal fraud as respects the rights of the creditors of his co-defendant Beck, there was nothing in his conduct towards them which was •culpable from a purely moral standpoint. In other words, it appeared without substantial contradiction that in all that was done by him as president and representative of the National Bank of Auburn, he had constantly in mind the success of the mortgagor Beck in his business enterprise, and while endeavoring, as was his •right and duty, to protect the interests of his bank, he was at the ■.same time striving to give Beck an opportunity to realize from his business and pay his creditors.

This impression has been strengthened somewhat by the addi-. tional evidence taken upon the last trial, and were it not for one feature of the case which seems, within the authorities and within the decision of this case by the court of last resort, to characterize the bank mortgage as fraudulent and void, I should have no hesitation in reaching the conclusion that the defendant Avery-had established a perfect defense to the plaintiff’s cause of action.

He testifies that the chattel mortgage executed by Beck to-the National bank was drawn by him and was given to secure a loan negotiated through him; and that the entire transaction was had with him ; that the loan was a bona fide one for the full amount expressed in the mortgage and that no part had been paid; all of which evidence is virtually conceded to be true.. Moreover, he says that in making the loan and taking the mortgage in the manner he did, he had no intention of defrauding any creditor of Beck, and in one sense, I think it fair to assume that, in saying this he spoke the exact truth; for his subsequent conduct shows that whatever construction the law may place upon his acts, there was, as has already been suggested, no moral wrong-intended. When the plaintiff heard of the existence of the mortgage and sent his agent Gordon to ascertain what it meant, there-was no attempt at concealment or equivocation on the part of the defendant; on the contrary he told, him frankly what he had done and why he had. done it, and so impressed was Gordon with-the propriety and integrity of the defendant’s conduct, that he expressed his approval thereof and presumptively, at least, made a. favorable report to his principal of what he had learned respecting the bank mortgage. It was undoubtedly upon this assumption, accompanied by the further fact that several days elapsed before any dissent was expressed by Ross, that it was held upon the-former trial that he had acquiesced in Avery’s arrangement with Beck, that the latter might retain possession of the mortgaged property, and that, with full knowledge of all the facts, having thus acquiesced, he could not now be heard to say that, as to him, the mortgage was fraudulent and void.

However, the question of acquiescence or estoppel has been eliminated from the case, and it only remains to be seen whether, upon the facts as they now exist, the defendant can be said' to-have placed his bank in a position where it can not avail itself of its mortgage security, or in other words, whether the mortgage of January 24, 1887, was executed upon the agreement or understanding between Beck, the mortgagor, and the bank, the mortgagee, that the former might remain in possession of the mortgaged property and dispose of it in substantially the same manner as before the execution of the,mortgage. This question was submitted to the jury upon the first trial and was answered by them in the affirmative. When the case came before the court upon its equity side, this conclusion of the jury was adopted and it was subsequently reaffirmed by both the general term and the- court of appeals ; the latter tribunal saying there was ample evidence to sustain the finding, 124 N. Y., 376; 36 St. Rep., 338, so that unless the additional evidence furnished upon the last trial in some appreciable manner varies or modifies that which was given upon the trial at circuit, it must be held that this question is practically res adjudicata.

I have already said that such evidence does tend to strengthen the impression which was at first produced, respecting the defendant's fraud from a strictly moral standpoint; but can it be said that, with the other facts in the case, it so strengthens his position that the conclusion heretofore reached by the courts and jury is not the reasonable and proper one in a legal sense?

To answer this question intelligently it will be profitable to recapitúlate very briefly the undisputed facts of the case, which may be thus stated: The National Bank of Auburn, upon the 24th of January, 1887, took from the defendant Beck a chattel mortgage upon his stock of boots and shoes, and materials and machinery, for the manufacture thereof, in the city of Auburn, to secure a loan of $1,150, made by him some time previous to that date. The execution of this ■ mortgage was not accompanied by any immediate delivery or followed by any actual or continued change ■of possession of the property mortgaged; on the contrary, the mortgagor was permitted to remain in possession of such property and to sell the same, precisely the same as he had done prior to the execution of the mortgage, without any interference whatever upon the part of the mortgagee, for the period of about fourteen •days, or until February 8th, when another mortgage was given to Avery to secure an individual claim, following which Avery assumed possession of and control over the property. It is true, .and this is the new evidence in the case, that Beck and his wife both worked in the store, making and repairing boots and shoes, and that a considerable portion of their trade was the result of what is termed “ custom workthat at the time of the execution of the bank mortgage, Avery ascertained from Beck that he would require fifteen dollars per week for living expenses, he and his wife ordinarily earning twice that sum from their “ custom workand that it was thereupon agreed 'that he might retain out of the avails of the business as a whole the sum of fifteen dollars per week, the balance to be employed in reducing his indebtedness. It does not appear what amount of goods was sold, or how much money was realized under this arrangement, nor what proportion of the amount realized during these fourteen days was from “custom work,” and what from' the sale of stock. Neither does it appear what, if anything, was paid to any of Beck’s creditors; nor indeed who his creditors were, aside from those who figure in this controversy.

The evidence does show, however, that a considerable portion of the property was sold, and that none of the avails thereof was applied toward the reduction of the mortgage debt or that owing to the plaintiff; and Gordon swears that Avery told him he did not know what had become of them. This is denied by Avery, but he does not furnish any information as to their disposition. To this evidence must be added the declaration of Avery that the bank did not intend to interfere with Beck, but designed that he should continue his business, and thus have an ..opportunity to recover from his embarrassment. The motive for this arrangement, it is true, may have boon disconnected with any real, actual, fraudulent intent, and yet if there was no immediate delivery or change in .the possession of the mortgaged property, and if the-mortgagor was permitted to manage and sell the same practically for his own benefit, as I think must be held was the fact, the-necessary result of- such an arrangement was to cover up all the property of the mortgagor, and thus to hinder and delay his creditors in the collection of their claims; and, inasmuch as a party is-presumed to have foreseen and intended the necessary consequences of his own act, it follows that, if those consequences defraud another out of any just right, the law pronounces him guilty of a fraud. Babcock v. Eckler, 24 N.Y., 623-632; Coleman v. Burr, 93 id., 17-31. Had the arrangement been simply that the mortgagor was to remain in possession of the mortgaged property with permission to sell the same and apply the avails upon the mortgage-debt, it would have been one not inconsistent with an honest intent. Ford v. Williams, 24 N. Y., 359; City Bank v. Westbury, 16 Hun, 458. But unfortunately for the defendant, such was not. the case, and therefore no other conclusion can be reached than that the bank mortgage was fraudulent and void as to the creditors of Beck. Brackett v. Harvey, 91 N. Y., 214; Potts v. Hart et al., 99 id., 168.

Upon the final submission of this case, several propositions were-urged upon the attention of the court, which had not before been presented. I have examined them all with care, but without being able to satisfy myself that they aid the defendant. The' claim that the admission of title by the plaintiff in the case of Avery v. Mead is fatal to a recovery in this action, proceeds upon the theory that the defendant had been put to an election of" remedies, at least that is the theory upon which the case of Terry v. Munger, 121 N. Y., 161; 30 St. Rep., 746, cited as an-authority, was decided; but one obvious answer to this contention is that the admission was made for the purpose of saving rights involved in another action long after this action had been at issue, and it is, therefore, difficult to perceive how it operates-as an estoppel.

Another point raised confessedly depends for its correctness-upon the fact that Avery took possession of the mortgaged property under his own mortgage exclusively; but this is not the fact, It is true that he took possession on the 9th of February, and that the bank mortgage was not assigned to him until a month later, so that counsel is quite correct in insisting that he could not have taken possession of the property under the bank mortgage as its owner, but he could have taken possession on behalf of the bank, and that is precisely what he swears he did do, in-an affidavit made on the 18th of February, to be used upon a motion to vacate an attachment; and the notice of sale establishes; most conclusively that the property wag sold upon the bank mortgage, as well as upon that of A very.

It seems, therefore, that from whatever point of view this caséis examined we are necessarily confronted by the question of the-validity of the bank mortgage, and with that question determined adversely to the defendant, there is nothing left for him to rest, his defense upon.

The only remaining question which requires any consideration pertains to the award of costs, and this is not altogether free from embarrassment. The case is one. in which the matter of costs, rests in the discretion of the court, and this discretionary power embraces the entire costs of the action, notwithstanding the order of the court of appeals, which grants a new trial, “ with costs to-abide the event.” First Nat. Bank v. Fourth Nat. Bank, 84 N. Y., 469. The final event is a judgment in which neither is wholly successful, for it adjudged the Avery mortgage valid. At first blush, therefore, it would seem a proper case for denying costs to either party, Law v. McDonald, 9 Hun, 23, and such would be the direction 'if each step in the litigation had been attended with the same result, but until the decision of the court of appeals the defendant had been successful as to the entire issue.

It appears that the decisions of the lower courts were erroneous, and plaintiff was in consequence thereof put to the expense of an appeal. This being the case, I fail to see why he should not be awarded costs ■ up to the last trial; but inasmuch as the result of that trial is in exact accordance with the decision of the court of appeals, it would seem to be a proper exercise of the discretionary power of the court to deny costs to either party for all proceedings subsequent to the order granting a pew trial

J. 0. & 0. L Avery, for app’lt; David Hayes, for resp’t

Lewis, J. This action has been twice tried, and the questions in it quite thoroughly litigated.

On an appeal from the judgment entered upon the first trial, substantially all the questions involved in the action were settled in favor of the plaintiff by the decision of the court of appeals, reported in 124 N. Y., 376; 36 St. Rep., 338. The opinion of the trial justice, printed, in the case, leaves very little to be said by this court in deciding this appeal.

The plaintiff claimed in his complaint that the defendant had in his hands moneys realized from the sale of personal property under two chattel mortgages held by defendant, which the plaintiff claimed to be fraudulent and void, and plaintiff sought to recover the moneys by virtue of a lien upon the property by. an attachment. The facts entitling the plaintiff to relief were fully set out in the complaint, and the plaintiff, upon the facts proven, was entitled to the relief demanded in his complaint

One of the defenses interposed by defendant was a judgment entered"in a replevin action adjudicating that the defendant Avery was the owner of the property covered by his mortgages. At the time of the first trial j udgment had not been entered in the replevin action.

The j udgment was thereafter entered, but upon appeal to the general term of this court it was reversed, and thereafter, and before the second trial, j udgment was again entered in said action in favor,of the plaintiff therein.

The judgment was entered some two years after the answer interposed in this case, so that the judgment which the defendant sought to avail himself of was not pleaded. If it was to be used in bar of this action, it should have been pleaded by a supplemental answer. Hendricks v. Decker, 35 Barb., 298.

The defendant in his replevin action claimed to own and to be entitled, to the possession of the property involved in that action by virtue of two chattel 'mortgages; one for the sum of $290, which was concededly valid ; and one for $1,000, which has been adjudicated to be void.

They both covered the same property. He was in a sense the; owner, and was entitled to the possession of the property by virtue of his valid mortgages.. The replevin suit did not necessarily involve the legality of the thousand dollar mortgage. 124 N. Y., supra.

“ Where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some particular fact must show affirmatively that it went upon that fact or else the question is open for a new contention.” Lewis v. O. N. & P. Co., 125 N. Y., 341-348; 34 St. Rep., 973.

In the absence of evidence to the contrary we must assume that the replevin action adjudicated that appellant’s title and right of possession were by virtue of the valid mortgage, and the judgment could not be used aS evidence against the plaintiff’s claim-to the surplus moneys held by him after the payment of his valid mortgage.

The trial court, we think, properly disposed of the question of costs.

We fail to see any reason for a reversal of the judgment. It should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


author: Lewis, J.

text:
    Edward E. Erwin, Resp’t, v. Francis Erwin et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Specific performance—Agreement to convey land.
    The father of plaintiff entered into a paroi agreement with him, by which it was provided that if he would enter into possession of a farm, cultivate and improve it as his own, that it should belong to plaintiff, and that at the father’s death he would convey or devise it to plaintiff. Plaintiff entered into possession and made valuable improvements, but his father conveyed the premises to one of the defendants. Held, that plaintiff, under these circumstances, was entitled to a decree for specific performance of the agreement as against the grantees and devisees of his father.
    Appeal from a judgment in favor of the plaintiff upon the decision of the court at special term in Steuben county February 2, 1891.

      J. F. Parkhurst, for app’lts; Frederick Collin, for resp’t
   Lewis, J.

The action was brought to compel Francis Erwin and others, as grantees of Francis E. Erwin, deceased, of a farm in Steuben county, to convey to the plaintiff such farm in fulfilment and performance of a paroi agreement of Francis E. Erwin, deceased, with the plaintiff.

A former trial of the action was had, which resulted in a decisión and judgment in favor of the plaintiff, and upon - appeal the judgment was reversed and a new trial granted because of an error in the admission of evidence. 54 Hun, 166; 26 St. Rep., 759. The new trial has been had, and resulted in a decision and judgment in favor of the plaintiff. The trial court found that there was a paroi agreement entered into between Francis E. Erwin, deceased, the father of the plaintiff, and the plaintiff, in the year 1858, by the terms of which it was agreed that if the plaintiff would enter into the possession of the farm in controversy and cultivate and improve it as his own that it should belong to the plaintiff, the title to remain in the father during his lifetime, and that at his death he would convey or devise it to the plaintiff, and that the plaintiff entered into the possession of the farm and made valuable and permanent improvements thereon, and in all respects kept and performed his part of the agreement, and that he never abandoned the contract or the premises.

There was evidence tending to prove these facts thus found by the trial justice. The testimony of many of the plaintiff’s witnesses is open to the criticisms made by the appellants’ counsel, but the witnesses were before the trial justice. He saw them and observed their manner of giving their evidence. If the facts testified to by these witnesses were true, the plaintiff‘was entitled to the relief demanded in the complaint. There was, we think, ample testimony to sustain the findings of the trial court.

There was evidence tending to show that the plaintiff abandoned the premises and the contracts. This was controverted by the testimony of the plaintiff. There was sufficient evidence to sustain the finding of the trial court in favor of the plaintiff upon this claim of the defendants.

We find no reason for disturbing the judgment.

It should be affirmed, with costs of the appeal against the appellants.

Judgment affirmed, with costs.

Dwight, P. J., and Macombeb, J,, concur.


text:
    The People, Resp’ts, v. Michael Murphy, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Arson—Evidence.
    On the trial of an indictment for burning a barn, in and about which the defendant had been employed for several years, evidence as to the poisoning of animals and injuries to carriages in the barn at the time of the fire is competent as tending to show that the person who committed the crime had an intimate acquaintance with the premises and surroundings, and also to show malice.
    2. Same.
    Certain witnesses having testified upon a comparison with letters conceded to have been written by defendant that a threatening letter received by the owner of the barn was in defendant’s handwriting, defendant produced other specimens of writing, and on cross-examination asked the witnesses their opinions as to whether they were written by defendant. Held, that as the opinions of the witnesses were not based on the writings-; produced by defendant, it was immaterial who wrote them, and defendant Vas concluded by their answers, and could not show that they were written by someone other than himself.

      Appeal from the judgment of conviction of the defendant at the Niagara county sessions of the crime of arson in the third degree entered in that county on the 11th day of June, 1891.
    He was sentenced to be confined in the Auburn state prison for the term of five years and six months. Defendant was charged in the indictment with having feloniously set. fire to and burned a certain barn in the city of Lockport, the property of one Elisha Moody.

      T. F. King, district attorney, for the People; Bichard Orowley, for app’lt.
   Lewis, J.

It is not necessary to rehearse the evidence given upon the trial, for, though mainly circumstantial; it was amply sufficient to warrant the conviction of the defendant of the crime of which he was charged. The evidence as to the poisoning of the animals and the injuries to the carriages in the barn was important and competent. The defendant had been for a number of years before the commission of the crime employed in and about the barn. He was familiar with the location of the carriages and the places where the animals were kept. He knew the presence in the barn of the poison and the location of the grain and pail used in feeding the poison to the cow. Hence, the evidence as to the injuries to the carriages and the poisoning of the animals was important and competent as tending to show that the person who committed the crime had an intimate acquaintance with the premises and'the surroundings; and it was also competent as tending to show- that the person who committed the crime entertained, as it was shown the defendant did, malicious and revengeful feelings toward the owners of the barn and property.

The exception of the defendant toevidence of Edward M. Moody as to the ownership of the barn burned is untenable. If incompe tent, the defendant.suffered no injury therefrom, as there was other and competent evidence given upon the trial establishing the fact that Elisha Moody was the owner of the barn as alleged in the indictment. Elisha Moody was living in the house upon the land on which the barn stood, and was in occupation thereof as tenant by curtesy and was, therefore, for the purposes of the action, the owner of the barn.

The People called a number of expert witnesses who testified that the letter, Exhibit “A,” addressed to Mrs. Rehm, which contained threats to ' burn her house and barn and burn the property of Mr. Moody, and the letter, Exhibit “ B,” addressed to Mr. Elisha Moody, containing threats, were in the handwriting of the defendant. These witnesses formed their opinion as to the letters being written by the defendant by comparing them with other writings conceded to have been written by the defendant. TJpon the cross-examination of these witnesses, the defendant’s counsel produced nine different specimens of writing, and asked these expert witnesses of the People their opinion as to whether they were written by the defendant. Some of the witnesses testified that they thought they were all in .the handwriting of the defendant. Others thought a portion of them were written by the defendant, and that the balance of them were not written by him. John .Murphy, a brother of the defendant, was thereupon called as a witness, and the defendant’s counsel offered to prove by him that he wrote some 'of the nine specimens shown the People’s expert witnesses, and that others of them were not written by him. The defendant did not offer to show which ones were written by the witness, nor those that were not written by him The evidence was excluded, and the defendant duly excepted.

The opinions of the People’s witnesses as to the defendant having written Exhibits “A ” and “ B ’’ were not based upon an examination of the writings produced by the defendant. They had not seen them when they gave their testimony. So that, as far as their evidence was concerned, it was immaterial who wrote the nine papers produced by the defendant. If the evidence had been admitted, it would have been collateral to the material question, to wit: tire authorship of Exhibits “A” and “B.” The defendant was, therefore, concluded by the answer of the People’s witnesses. Van Wyck v. McIntosh, 14 N. Y., 439; Hilsley v. Palmer, 32 Hun, 472.

We have examined the other exceptions of the appellant and find nothing in them calling for a reversal of the judgment.

The judgment of conviction should be affirmed and the proceedings remitted to the court of sessions of ¡Niagara county, with directions to proceed tjiereon.

Judgment affirmed, and the proceedings are remitted to the sessions of ¡Niagara county to proceed thereon.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

text:
    Sophia Booth, Resp’t, v. The Rome, Watertown & Ogdensburgh Terminal Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Nuisance—Blasting.
    Plaintiffs house adjoining defendant’s road was shaken and its walls weakened by the repeated concessions of blasting in making an excavation for the road. Held, that the blasting was the proximate cause of the injury, although no particular blast was shown to have been the cause, and that defendant was liable although there was no negligence on its part or that of its servants.
    3. Same—Railroad corporations. •
    A railroad company has no immunities, by reason of its corporate character, relieving it from responsibility for the direct injuries caused by its work, though it and its servants are without actual negligence.
    3. Same—Evidence.
    Evidence that the work was done by an independent contractor is inadmissible in such a case, where it appears that the contractor was specially employed to do the particular work and it was known to all the parties to the contract that blasting would be necessary.
    Appeal by the defendant from a judgment entered in Monroe county March 19, 1891, on the verdict of a jury at the circuit, and from an order denying its motion for a new trial made upon the minutes of the court.

      P. M. French, for app’lt; David Hays, for resp’t.
   Macomber, J.

As finally submitted to the jury, the issues in this action related to the defendant’s liability for damages sustained by the plaintiff by reason of injuries to her property caused partly by the blasting done by the defendant upon its own premises in making excavations for the building of its railroad, and partly by the occupation of the front portion of the plaintiff’s lot by the defendant in permitting dirt to slide from an embankment erected by it.

In the complaint and at the trial an effort was made to recover damages also for injuries sustained by reason of the change of grade of the street made by the railroad company. But this claim was rejected by the court, and finds no place in the verdict of the jury, which was for the sum of $1,750 for the plaintiff, being $1,500 for damages caused by blasting, and $250 for the deposit of earth. -The plaintiff’s premises which were so damaged lie on the west side of North St. Paul street in the city of Rochester, and adjoin the defendant’s railroad on the south. She had owned them since the year 1885. A house thereon was built in the year 1883, and its front is about four feet from the north line of the lot. The defendant’s railroad was constructed in the year 1887. It crossed North St. Paul street nearly at right angles. The grade of the street was raised, and the street carried over the company’s tracks by means of a bridge, to all of which the authorities of the city of Rochester had given assent. We are well satisfied that the amount of the verdict was not too large, provided the plaintiff had a cause of action for injuries to her real estate, caused mainly by the blasting. From the necessity of the case the jury was called upon to exercise its good judgment under the evidence, and determine a sum which would make a just compensation for the trespass of the defendant.

We may safely assume, for the purposes of this appeal, that the defendant not only had the right to make the excavations and put its railroad tracks in the place named, but that it had also the incidental right of making all necessary blasting therefor. .It is true that the blasting, the effect of which caused such a large part of the plaintiff’s damages, was done without negligence so far as the evidence discloses the fact to be.

From this circumstance, it is argued by counsel for the appellant that the defendant is not liable for the injuries thus sustained by the plaintiff.

This argument is based mainly upon the conceded fact that no particular blast is shown to have caused the shaking of the foundations of the.house and the weakening of its walls, but that the same came by the repeated concussions or detonations received either through the motion of the atmosphere or of the intervening earth.

Under the facts disclosed, we do not think the defendant can be justified under the doctrine of Lasala v. Holbrook, 4 Paige, 170, which holds that the defendant had the right to excavate its own lands, if done with due care, though the ultimate effect might be to cause an adjoining and recently built house to fall.

Nor does the case fall within the principle of Atwater v. Trustees, etc., 124 N. Y., 602; 37 St. Rep., 234, affirming the judgment of this court in Atwater v. Trustees, etc., 56 Hun, 293; S. C., 30 St. Rep., 587. In that case many of the authorities cited to us upon this appeal were fully considered, and it was concluded therefrom that municipal corporations engaged in the performance of works of a public nature, authorized by law, are not liable for consequential damages occasioned thereby to others, where private property is not directly encroached upon, unless such damages are caused by misconduct, negligence or unskillfulness. The rule was there limited, and we still believe it should be limited, to injuries inflicted in the performance of public works, and strictly of a public nature, directly authorized by statute. If, as it seems to us, there is anything more contained in the opinion of Denio, J., in Bellinger v. The N. Y. Cent. R. R. Co., 23 N. Y., 42, the same does not appear to be . germane to the' case then before the court, and must be considered as obiter. See Radcliff’s Ex'rs v. Mayor, etc., 4 N. Y., 195.

But the principle exonerating a party from consequential damages when performed under public law for a public purpose, without negligence, does not apply to the facts disclosed in this case. Consequential damages are those which are not the direct and immediate results of the acts complained of. In the case before us, as we view it, the injury caused by the defendant to the plaintiff's premises was direct and not consequential. The act of the defendant was a direct trespass, as in the case of St. Peter v. Denison, 58 N. Y., 416, where the blast blew a chunk of frozen earth for a considerable distance upon the premises of another and injured the plaintiff, and a recovery was had without proof of negligence; or where the injury was purely accidental, without negligence, as was the case of Heeg v. Licht, 80 N. Y., 579, where it was hold that one storing gmipowder was liable,without proof of negligence, to a person who was injured by an accidental explosion. See also Bohan v. Port Jervis Gas Light Co., 122 N. Y., 18; 33 St. Rep., 246, and McKee v. D. & H. C. Co., 52 Hun, 52; 22 St. Rep., 224.

Moreover, the stautory sanction to the defendant, which was organized under the general railroad act, Laws 1850, chapter 140, and its amendments, was not an express power or authorization to cross North St. Paul street precisely in this way. Its right existed only under the general railroad law of the state, and of that provision of the constitution of the state which permits the delegation by the legislature of a quasi power of eminent domain to railroad corporations. Cons., art. 8, §§ 1 and 3. But there was no obligation, on the part of the defendant, to locate and build its road in this particular place. Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y., 10; 3 St. Rep., 56. We think that the defendant has no immunities, by reason of its corporate character, relieving it from responsibility for the direct injuries caused by its work, though it and its servants were without actual negligence,

It is further claimed that the defendant was not liable because the work of-' excavating and blasting had been let to one Casey, who, it is claimed, was an independent contractor, for whose acts-the defendant was not liable. We agree fully with the opinion of the learned justice rendered on the motion for a new trial, that the evidence to show such relation between the company and Oasev was not competent under the pleadings, and fully approve of the doctrine of the authority cited by the learned justice, namely,- Baker v. Bailey, 16 Barb., 54, and for the further reason that the evidence was entirely immaterial, whether competent under the pleadings or not, because the only testimony relating to the question shows that Casey was employed by the defendant specially to do this particular work, and that it was known to all of the parties that blasting would be necessary in order to make the proper excavations for laying the defendant’s tracks. McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y., 178; Dressel v. City of Kingston, 32 Hun, 533.

We think that the disposition of the case made by the learned, justice at the trial, and on the motion for a new trial, was correct, and that the judgment and order entered should be affirmed.

Dwight, P. J., and Lewis, J., concur.


author: Dwight, P. J.

text:
    David Cornwell, Treas’r, Resp’t, v. Charles J. Cagwin, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Dairy Law—Cheese factory—Fraud.
    In an action against a patron of a cheese factory to recover a penalty for delivering skimmed milk, it is no defense that the cheese-maker, who was also treasurer, and the nominal plaintiff, but not one of the patrons, consented to his taking off cream for his family u«o.

      2. Witness—Evidence.
    An objection to a question put to a witness on cross examination with a view to showing hostile feelings is properly sustained where the question embraces other matters not admissible.
    Appeal by the defendant from a judgment of the county court of Cattaraugus county, affirming the judgment of a justice’s court.

      William G. Laidlaw, for app’lt; A. Spring, for resp't.
   Dwight, P. J.

The action was brought in a justice’s court to recover penalties alleged to have been incurred by the defendant, under the provisions of chap. 427 of the Laws of 1885, for delivering skimmed milk at a cheese factory. The justice rendered judgment against the defendant for fifty dollars, and costs, which' was affirmed in the county court.

The plaintiff was the treasurer of the unincorporated association of patrons of a cheese factory at Farmersville in Cattaraugus county, and the action was brought in his name, under the provisions of § 1919 of the Code of Civil Procedure, for the benefit of the association.

The statute (act of 1885, supra) provides that “ whoever shall, with intent to defraud, * * * bring to be manufactured to .any * * * cheese factory in this state * * * any milk from which any cream has been taken * * * shall for each and every offense forfeit and pay a sum not less than twenty-five nor more than one hundred dollars, with costs of suit * * * for the benefit of the * * * association * * * upon which such fraud is committed.” The defendant was one df the patrons of the cheese factory delivering his milk to it daily, and lie habitually committed the offense described in the statute and for which the penalty is prescribed. His wife was in the almost .daily habit of taking cream from the cans, for the use of the family, with his knowledge and approval, and he was in the. habit of delivering to the factory the milk from which the cream . had thus been taken.’ This he admitted on the trial; his only defense being that such acts were without the intent to defraud mentioned in the statute.

In support of this defense, he offered evidence to show that he had the permission of the cheese maker, who was also the treason rer of the association and the nominal plaintiff in this action, to take off cream for family use. The evidence was objected to, .-■and the ruling of the justice excluding it furnishes substantially the only ground of this appeal.

The ruling was clearly correct. The necessary effect of the act forbidden by the statute and admitted by the defendant was to -defraud the associated patrons by depreciating the quality and value of the cheese made at their factory, and the elementary principle that a man is presumed to intend the natural and necessary consequences of his act, knowingly committed, applies with full force to the case of the defendant. The evidence offered by him had no tendency to rebut that presumption. It does not help his case to show that another person was in complicity with him ■in the wrongful act. The consent of the cheese maker and treasurer was not the consent of the patrons of the factory. The ■treasurer was not even one of the patrons. He was the servant .and, in a limited sense, perhaps, the agent of the association employed to make and sell their cheese. His compensation depended upon the number of pounds of cheese manufactured; not upon its quality or price. Of course he had no authority to consent to a fraud upon his employers, and his complicity in the acts o£ the defendant could have no effect to relieve those acts of their fraudulent character. The evidence proposed was, therefore, properly excluded.

If the action had been brought by the plaintiff for his own benefit, or if the j udgment were to enure to his benefit, in whole or in part, a defense based upon the fact suggested by the question might, perhaps, have been available; but such "is not the ■ease. The treasurer was only the nominal plaintiff, and the recovery is, by the terms of the statute, “ for the benefit of the association upon which the fraud was committed.”

Only one other question is presented on this appeal. Mrs. Corn-well, a witness for the prosecution, was asked a question on cross- • examination, with a view, as it is said, of showing hostile feeling on filer part toward the defendant. But the question embraced other matters not admissible, and assumed facts not in evidence. The-objection to the question was properly sustained. The judgment must be affirmed.

Judgment of the county court of Cattaraugus county affirmed,, with costs.

Maoomber and Lewis, JJ., concur.


text:
    Mary J. Burnett, Pl’ff, v. Charles S. Wright, Ex’r, Impl’d, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Limitation—Action to reform and foreclose mortgage.
    A mortgage given by defendant’s testator omitted to mention the amount intended to be secured thereby. In an action to reform the mortgage by-inserting such amount and to foreclose the mortgage, Seld, that as the-mortgage could not be foreclosed until it had been reformed, the Statute of Limitations was sufficiently pleaded by an allegation that the cause of' action alleged did not accrue at any time within ten years prior to the commencement of the action.
    Appeal by the plaintiff from a judgment dismissing the complaint, entered on the findings and decision of the court at special' term, in Monroe county ; also, by the defendant from that portion, of the judgment which denied costs to the defendant. .

      M. W. GooJce, for pl’ff; D. B. Beach, for def’t.
   Dwight, P. J.

The action was to reform and foreclose amort- ‘ gage of real estate. The instrument set out in the complaint was in the usual form of a real estate mortgage, reciting a consideration of $600 for the conveyance of the land, but omitting to mention any sum as the amount the payment of which it was intended-to secure. The instrument was drawn upon one of the standard blanks for mortgages employed by scriveners in this state, and the blank was filled out in every respect, except that no words or figures were inserted in the blank in the sentence: “ This grant is intended as security for the payment of the sum of in one year from the date of this instrument,” etc. The complaint' contained appropriate allegations for a reformation of the mortgage,' by the insertion in the blank of the sum of $677.17, and ended with a prayer for relief, Yhich embraced such a reformation and a. foreclosure of the mortgage for that sum, with interest.

The answer of the defendant as the executor of the deceased mortgagor, as also the answer of Jane Grould, a grantee of the-mortgaged premises, who was made a defendant, but died pending the action, and for whom the defendant was substituted as her executor, set up certain equitable defenses and pleaded both the twenty years and ten years statute of limitations to the action the latter plea in both answers being in these words, that the said alleged cause of action set out in the complaint herein did not accrue at any time within the period of ten years prior to the-commencement thereof.” The mortgage was executed, acknowledged and delivered3 in January, 1868, and the action was commenced in November, 1887. 'The court at special term found and held that the mortgage was void for uncertainty, since itr ■specified no sum for which it was intended as security, or for ■which it could be enforced; that the ambiguity or defect was a patent one, and, therefore, it could not be explained or supplied by paroi proof; that the mortgage in order to be enforced must be reformed, and that the cause of action for a reformation was barred by the ten years statute of limitations, and on that ground dismissed the complaint.

A gainst, this disposition of the case the plaintiff, appellant, makes '•two contentions. The first is that the ten years statute was not effectually pleaded, and this upon the sole ground, as we understand, that it was pleaded to the whole of the plaintiff’s cause of ■action, whereas it applies only to that portion of the cause of -action which asks for a reformation of the mortgage.

We do not think the position is well taken. The final cause of action is really one, viz., for the foreclosure of the mortgage. But the mortgage being void for uncertainty and incapable of enforcement as it stands, its reformation is a necessary incident of its foreclosure. Without reformation the mortgage cannot be foreclosed. The statement of the cause of action for a foreclosure of the mortgage is incomplete without the allegations showing that the plaintiff is entitled to its reformation. With this view, no •doubt, the complaint purports to state but one cause of action, of which the object is the foreclosure of the mortgage, and, as preliminary thereto, a reformation of the mortgage by inserting in the blank the sum intended to be secured thereby.

It is true that a separate action might have been maintained for the reformation of the mortgage, but such an action could have had no other object than to prepare the way for an action to fore^ close it; and when the plaintiff determined upon a single action he very properly grouped all his allegations in a single narrative intended to exhibit his right to have his mortgage foreclosed and, in order thei’eto, to have it reformed. The case is very different from that of Brockway v. Wells, 1 Paige, 617, the only authority ■cited by counsel for the plaintiff in support of his present contention. In that case the action was to recover, after an accounting, two several and distinct sums of money received by the defend.ant at different times and in different capacities of trust. The two causes of action were entirely distinct; neither was in the least ■degree dependent upon the other, and it was held that a general plea of the statute of limitations was bad. We think the authority .and the principle of it fails of application to this case.

The other contention on behalf of the plaintiff we regard as much more ingenious tizan sound. It is to the effect that the condition or defeasance clause of the mortgage may be disregarded, in which case the instrument would become an absolute conveyance on its face, and being intended as a mortgage, may be enforced as such, without the aid of the power of sale contained in the instrument as executed between the parties. In such case no reformation is necessary; the action becomes one on a sealed "instrument and is subject only to the twenty years limitation, and mot to the limitation of ten years as in cases where a reformation is irequired.

It is a little difficult to characterize this contention; it seems to-be contrary both to pleading and to. proof. The instrument is-both declared upon as a mortgage and proved to be such. The-contention requires a double transformation of the deed, first, from a mortgage to an absolute conveyance, contrary to the act of the parties between whom it was executed and delivered, and then from an absolute conveyance to a mortgage in accordance ■ with their intent. Counsel in his argument even appeals to the terms-of that portion of the instrument which it is proposed shall be-disregarded for evidence of the intention of the parties as to the nature and effect of the instrument.

We think that neither of the answers of the plaintiff to the-findings and conclusions of the court is effectual as such. The-authorities cited by the learned judge at special term support those conclusions, Eaton v. Wilcox, 42 Hun, 61; 3 St. Rep., 501; Vandevoort v. Dewey, 42 Hun, 71; 3 St. Rep., 474, and those conclusions support the judgment dismissing the complaint. There are-suggestions in the case of circumstances which render the plea of the statute of limitations far from unconscionable, but as none-of the evidence is printed, and the findings of the court do not. embrace the circumstances referred to, we are not supplied with the data upon which to review the discretion of the court in refusing costs to the defendant.

The judgment should be affirmed.

Judgment appealed from affirmed, with costs.

Lewis, J., concurs; Macomber, J., not voting.


text:
    In the Matter of Supplementary Proceedings for the collection of a tax of Charles H. Hartshorn, App’lt.

      Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Taxes—Misnomer.
    Where a person is concededly the owner of the land assessed, is the only-person bearing the name residing in the county and the only person liable, to pay the tax, he cannot claim to be misled by the addition of the letters “ est,” to his name on the roll.

      2. Same—Supplemental proceedings.
    The question as to the ownership of sufficient personal property to pay the tax cannot be raised for the first time on examination in supplemental proceedings. If the party wishes to raise that question he should do so by motion to set aside the order.
    Appeal from an order of the county court of Steuben county denying an application made by the appellant to vacate and set .- aside an order made on the 12th day of August, 1891, appointing a receiver of the property of • the appellant; also an appeal from an order made by the county judge of said county appointing such receiver.

      Daniel L. Benton, for app’lt; J. H. Stevens, for resp’t.
   Lewis, J.

The affidavit of the supervisor, Henry Colgrove,. stated facts sufficient to justify the order of the county judge,, directing the appellant to appear before him for examination concerning his property. Matter of Conklin, 36 Hun, 588.

It cannot be claimed that the appellant was misled by the addition of the letters “ est ” to his name on the roll. He was concededly the owner of the lands assessed, and he was the only person bearing the name of Charles Hartshorn residing in the county and was the only person liable to pay the tax.

Henry R. Ranger, the assessor, testified that the list of the lands as they were- assessed was shown to Hartshorn and that he acknowledged the assessment to be correct. The ex parte application made to the county judge to vacate his order was based soley upon the original papers, upon which the order1 was granted.

The county judge denied the application; Hartshorn acquiesced in the disposition that was made of the motion, and appeared before the judge and submitted to the examination.

Hpon the hearing he sought to show that he had sufficient personal property out of which the collector could have made the tax..

The county judge correctly held that that question was not open to investigation on the hearing before him.

If that matter was to be inquired into, an independent motion should have been made to set aside the original order upon notice based upon affidavits showing the facts upon which he relied to set aside the order.

The reassessment of the tax in 1891 by the assessors could not affect the regularity of the supplemental proceedings. There does not appear to be any merit in the appeal.

The orders appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., .and Macomber, J., concur.


text:
    Harriet J. Rhodes, Resp’t, v. Clinton F. Stone, Adm'r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Services—Member of family—Contract to pay for.
    Plaintiff lived and cohabited with deceased, although she knew his wife was living, kept house for him and worked on his farm, doing the same work as a laborer. In an action for such services there was evidence-of declarations of the deceased to_ the effect that plaintiff was of great assistance to him in his business arid was worth as much to him as an ordinary hired man, and he intended to pay her for her services, which declarations were soirietimes made in her presence and hearing. Held, that the relations of the parties did not necessarily forbid an express contract to pay her for her labor, and that the evidence was sufficient to sustain a • finding of an express contract to pay.
    Appeal from the judgment of this court, entered in the county of Steuben on the 15th day of May, 1889, in favor of the respondent against the appellant as the administrator of the estate of John R. Stone, deceased, and from an order denying a motion for a new trial upon the court’s minutes.

      Francis A. Williams, for app’lt; D. M. Darrin, for resp’t.
   Lewis, J.

This is an action to recover compensation for services performed by the respondent for the defendant’s intestate^ John R Stone.

The intestate in 1853 separated from his wife and from that ■time till his death in the year 1885 lived and cohabited with the .respondent

Their relations were apparently those of husband and wife; they were known and recognized as such by their neighbors and acquaintances.

The respondent was all the time aware of the intestate’s former marriage, that his wife was living, and that he had not been legally divorced from her.

The intestate and the respondent carried on the business of .farming; the respondent performed the usual services of a farmer’s housekeeper; she also worked upon the intestate’s farm, performing the labor of an ordinary farm hand, assisting the intestate in clearing land, pulling stumps, sowing, planting, cultivating and .harvesting crops.

There was evidence,' consisting mainly of the statements of the intestate made from to time, while the respondent was performing the services, that she was a great assistance to him in his business and was aiding him in accumulating property; that she was worth as much to him as an ordinary hired man, and that he intended to pay her for her services; that she should be well paid ; that he intended to give her a farm and other property by his will; that when he died she was to have pay for her labor.

These declarations as to the valuable services the respondent was rendering, and that he intended to pay her well for them, were often made in the presence and hearing of the respondent. The services were proven to be worth from two to five dollars' a week.

The respondent cannot rely upon an implied agreement to pay for her labor ; unless the evidence proves an express promise of the intestate to pay her, the verdict cannot be sustained, and if the illicit commerce between the parties was any part of the basis of the promise to pay for respondent’s labor, the agreement was void.

The relations of the parties did not necessarily forbid an express contract between them that the intestate would pay respondent for her labor. Cooper v. Cooper, 147 Mass., 372.

There is no suggestion in the evidence that the illicit relations were to form any part of the consideration of. the contract; notwithstanding the improper manner of her life with the intestate, she was at liberty to make an agreement with the intestate to perform labor for him for pay. There was sufficient evidence of such an agreement to sustain the verdict of the jury.

While there was evidence tending to show that the respondent had received full compensation for her work for the intestate, this evidence was controverted, so that it became a question of fact. The case was very guardedly and fairly presented to the jury, and we think the judgment must be sustained.

The judgment and order appealed from are affirmed, with ■costs.

Dwight, P. J., and Macomber, J., concur.


text:
    John Langford, Resp’t, v. William Broadhead and William J. Morse, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Indemnity—Parties.
    M. and W., members of a firm, entered into a contract with reference to dissolution, which contained a covenant by M. to indemnify and save W. harmless against all debts of the firm and all trouble and expense on account thereof. Defendant B., for the consideration of one dollar, joined in the contract for the purpose of joining with M. in said indemnity. Held, that as to W. the covenant of indemnity was joint, and that an. action for breach thereof was properly brought against B. and M.
    2. Same - Costs.
    Such covenant includes only costs necessarily and reasonably incurred» and not costs paid by the covenantee in supplementary proceedings against him.
    3. Evidence—Code Civ. Pro., §829.
    Evidence to show fraud on the part of the covenantee, who has since died, in procuring the covenant to be given, is inadmissible under § 828 of the Code.
    Appeal by the defendants from a judgment entered on the report of a referee.

      G. R. Lockwood, for app’lts; A. Hazeltine, for resp’t.
   Dwight, P. J.

The action was on a contract, under seal, executed by the defendants and one Ezra Wood, Jr., since deceased. The contract named the latter as party of the first part, and the defendant Morse as party of the second part, and most of the covenants contained in it were between those parties exclusively, and related to the dissolution and settlement of a copartnership which had previously existed between them. But the concluding covenant on the part of Morse was one by which he bound himself to pay all the debts of the firm, and to save Wood harmless therefrom and from all trouble and expense on account thereof, and in this covenant the defendant Broadhead joined in the following terms: “And said William Broadhead joins in this contract and puts his name and seal to the same for the consideration of one dollar to him in hand paid, etc., and for the purpose of joining' with the said Morse in indemnifying the said Wood against the outstanding liabilities of said firm; and said Broadhead hereby agrees to keep said Wood free and harmless from all said liabilities, including, etc., and from all costs, trouble and expense on account of the same.”

After the execution of the contract several judgments were recovered against Wood and Morse on liabilities of the firm, which were collected by execution out of the property of Wood, and he subsequently assigned his claim for indemnity under the contract to the plaintiff. Wood died before the commencement of this action.

There is no force in the contention that the defendants were improperly joined in the action. Although, as between themselves, Morse was, no doubt, the principal obligor and Broadhead! Ms surety, yet as to Wood their covenant of indemnity was expressly joint, and the action was properly brought against both.

The joint answer of the defendants set up the defense of fraud -on the part of Wood, by which they were induced to enter into the contract'of indemnity ; and Broadhead by a separate answer, interposed by way of amendment on the trial, averred similar fraud on the part of Wood and Morse conjointly, which induced him to unite with Morse in the execution of the contract.

These two rather inconsistent defenses it was sought to sustain by the testimony of the two defendants, offered in behalf of both :and of each of them. The testimony was objected to by the plaintiff under § 829 of the Code of Civil Procedure, and was very prop-erly excluded. Under whatever guise proposed, the offer was nothing other than an attempt on the part of the defendants to establish by their own testimony personal transactions or communi•cations between themselves and a deceased person, from whom the plaintiff derived his interest in the subject matter of the action. In the nature of the case the alleged fraudulent representation or conduct of the deceased which influenced the action of the defendants, or either of them, must have been a personal transaction or communication between the deceased and the defendant or defendants who sought to have the benefit of the testimony; and the testimony offered by the mouth of either of the defendants was in his own interest either separately or jointly with the other defendant. This brought the case strictly within the terms of the statute' referred to, and justified the ruling of the referee. The principle that one partner is chargeable with the fraud of his co-partner applies only to the partnership transactions, and the contract in question was not of that character; it was a ■contract of Broadhead with Wóod and Morse as individuals having separate and adverse interests.

One of the judgments collected of the property of Wood was recovered in an action in the supreme court on two notes of the firm held by the administrator of the estate of Wood’s father. Both defendants in the action were personally served, neither made any defense or appearance therein; and the judgment included costs in case of default, which; together with sheriff’s fees on execution, amounting to $74.77, were allowed by the referee against the defendants’ objection, in the amount recoverable by the plaintiff in this action.

All the other judgments against Wood and Morse of which proof or mention is made, were recovered in justice’s court; in neither of the actions was any- defense made, and only one of those judgments was paid by Wood, or charged to the defendants in this action. But the referee has allowed the claim of the plaintiff for the value of the services of an attorney who testifies ■that he was employed by Wood in connection with these actions, ■and in supplementary proceedings to enforce the judgments therein.

We think the allowance of costs and expenses in connection-■with any of the judgments recovered against Wood cannot be supported beyond the amount of costs entered in the two judgmente paid by him. It is true the terms of the indemnity are very broad, and include “ all costs, trouble and expense on account of” liabilities of the firm. But even this language will not be- construed to cover costs and expenses unnecessarily or unreasonably incurred. It was no doubt proper for Wood to suffer •the claims made against him to go into judgment, but not to drive the claimants to the levy of execution and sale of his property; .and least of all to proceedings supplementary to execution in ■ order to collect their judgments when recovered. The evidence fails to show the existence of circumstances which justified the ■expenses referred to, and we think they should not have been -allowed against the defendants.

In the actions in justice’s courts no defense was attempted, and so far as appears the services charged for by the attorney for Wood were rendered in resisting proceedings supplementary to ■execution. The charges last mentioned amounted to fifty dollars.

We find no other error in the rulings or decision of the referee. The judgment should be affirmed if consent is given to deduct therefrom the sum of $74.77, with interest thereon from March 18, 1882, to August 22, 1887, and the further sum of fifty dollars.

Judgment appealed from reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to modify the same by deducting from the face thereof the sum of $74.77, with interest from March 18, 1882, to August 22, 1887, and the further sum of fifty dollars; and if so modified affirmed, without costs of this appeal to either party.

Macombee and Lewis, JJ., concur.


text:
    Bertha Welke, App’lt, v. Rudolph Welke, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Divorce—Adultery—Evidence.
    In an action for divorce the only evidence tending to establish the charge of adultery, other than that an unmarried woman was housekeeper for defendant, who was living apart from liis wife, was the testimony of four men who gained access to defendant’s apartments on frivolous pretexts. Their testimony, so far it tended to show illicit relations between ■defendant and the woman, was denied by him and the woman. The men testified that their visits had no 'reference to an action for divorce; that .they did not know one was contemplated, and that they went there for the purposes mentioned. Held, that if the referee was convinced that their testimony in that respect was false, he had a right to reject their whole testimony as unworthy of credit, and that his finding that the fact of adultery was not proved was amply justified.
    Appeal by the plaintiff from a judgment dismissing her complaint, entered on an order of the Monroe special term confirming •the report of a referee, and directing judgment in accordance •.therewith.

      G. M. Allen, for app’lt; IT". F. Rampe, for resp’t.
   Dwight, P. J.

The action was for a divorce on the gronnd of •adultery. The parties were married in 1885, but lived, together only a few weeks, and both have, apparently, been content to live separately since that time.

One conceded fact in the case no doubt suggested to the plaintiff, or her advisers, the bringing of an action for an absolute divorce. That was the fact that for some months before the action-was brought the defendant had living with him, as the only other-member of his household, an unmarried woman of about his own age, in the ostensible relation of housekeeper and domestic servant. This fact was calculated to excite suspicion, but was, of course,, insufficient in itself to establish the charge of adultery. The only additional evidence tending to support that charge was furnished by the testimony of four men, entire strangers to the defendant, who gained access to his house, two of them in the evening, and three of them at midnight a week later, under pretenses so shallow and absurd as .to stamp these domiciliary visits with the-character of gross outrages upon the privacy of the home. The-referee undoubtedly rejected those pretenses as false, and believed that the sole purpose of the visits was to obtain evidence in sup-port of the plaintiff’s action which was, shortly after, commenced. But, what is of more consequence, these persons on the trial of the action had the hardihood to insist, on their oaths as witnesses,, that their visits had no reference to an action of divorce; that, they did not know that such an action was contemplated, and that their several invasions of the defendant’s home were made for the-purposes avowed at the time. So that if the referee was convinced that the excuses for the visits were falsely pretended, he must have found that their testimony in that respect was false and, in that case, he had the right to reject the whole of their testimony as unworthy of credit. Pierson v. The People, 79 N. Y., 424. Moreover their testimony, so far as it tended to show illicit, relations between the defendant and the woman living with him, beyond the fact that they were the only occupants of the apartments which constituted the defendant’s home, was directly contradicted both by him and by the woman, except that the latter, who did not understand English, was unable to testify to the conversation between the defendant and his visitors.

On this state of the evidence, the finding of the referee that the fact of adultery was not proved was amply justified, and the-complaint was properly dismissed.

The judgment should be affirmed.

Macomber and Lewis, JJ., concur.


author: Dwight, J.

text:
    James Littell, Resp’t, v. George Ellison, Ex’r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Decedent’s estates—Claim for breach of contract—Prior settlement.
    Defendant’s testatrix agreed'willi plaintiff that if the latter and his wife should perform certain services and plaintiff would pay for certain repairs, on a farm, that she would deed or will the farm to him. Plaintiff performed on his part, but testatrix devised said farm to others. Held, that a claim for breach of said contract was not included in a settlement ¡node with testatrix shortly prior to her death, on which a receipt in full of all claims to date was given and a lease of the farm taken by plaintiff.
    2. Same—Interest.
    Such claim is an unliquidated one, and "carries interest only from the; date of the referee’s report.

      Appeal by the defendant from an order of the special term in Steuben county, denying the defendant’s motion for a new trial, in case of a reference-under the statute.

      F. A. Williams, for app’lt; M. J. Sunderlin, for resp’t.
   Dwight, J.

The claim referred was against the estate of Rlioda Hughey, deceased, and was in effect- a claim for damages resulting from the breach of an oral agreement on the part of the deceased to devise or convey to the plaintiff by will or deed to take effect at her death, a small farm on which she lived. The claim as presented in writing and verified by the plaintiff, began 'by setting out three items of indebtedness of the deceased to the plaintiff: (1) for work and services of plaintiff and wife for six years at $240 a year, $1,440 ; (2) for money and materials paid out and expended by the plaintiff in putting i-epairs on the farm mentioned, $400; (3) for use of a horse on the farm for three years, $150. It then proceeded as follows : “ The above services were done, rendered and performed and said money and materials were paid out and expended by me under a verbal agreement between said Rhoda Hughey, deceased, and myself, in her life-time, "that if myself and wife would perform said services and I would expend said money in making said repairs, purchasing said materials and paying said workmen, at her decease she would will -or deed me the farm on which the same was expended, and on which she then resided, in payment and satisfaction of the same; -which said farm was of the value of $2,000. That at her decease she did not will or deed said farm to me, but disposed of it otherwise; and I claim that by reason of the premises there is justly due me from her estate either the value of said farm or the value of said labor, expenditures, etc.” The claim was, therefore, for a breach of contract, with a statement of the value of the services, etc., or the value of the farm, as the measure of damages.

The finding by the referee that the contract was made substantially as alleged cannot be disturbed. It is supported by the dii-ect evidence of the plaintiff’s wife, corroborated by some circum•stances and by evidence of declarations of the deceased. There is conflicting, though not directly contradictory, evidence, but the case, on the whole, supports the finding of the referee. The breach of the agreement, if it was made, is admitted. The deceased never executed any deed to the plaintiff, and although she did at two different times after the agreement was made execute an instrument intended to be her will, by which she devised the farm to the plaintiff, yet later, and a few months, only, before she -died, she executed what has been admitted to probate as her last will and testament, by which she- made other disposition of the property in question, and made no provision for the plaintiff in lieu of that contained in the former instruments, or in satisfaction of the agreement proved. It is not questioned that the contract was fully performed by the plaintiff and his wife.

A cause of action for damages was therefore made out, and the referee adopts as the measure of those damages the value of the services rendered, less payment thereon, and the money, etc., expended in repairs. The value of the six years service of 'the plaintiff and his wife he fixes at $1,300, besides the board and clothes of his family, furnished by the deceased, on which 1300s was paid in annual payments of fifty dollars, leaving a balance of $1,000 to which is added $400 as the amount and Value of the expenditures for repairs.

The principal contention of the defendant against this conclusion is based u]pan evidence showing a settlement between the plaintiff and the deceased some six months before her death, in which they exchanged receipts “in full of all claims, debts and demands of every name and nature up to this date,” and in which the plaintiff accepted a lease of the dwelling house on the-farm, for four months from that date. But the referee finds that such settlement “ had no reference to and did not include the plaintiff’s claim to have said farm when said-Rhoda Hughey died or was done with it according to said agreement; ” and so it, could not have done, since tile time had not elapsed during which that agreement was, by its terms, to be performed on the part of the deceased and no claim for damages for its nonperformance had yet arisen.

The assumption in this connection that' the referee has found that the item of $400 for expenditures in repairs was included, in the settlement, is a mistaken one. It is based upon one of the additional findings of the referee made in answer to a request of the defendant, which upon a cursory reading might seem, to convey the meaning suggested. Such meaning would be entirely inconsistent with the' findings of fact, conclusions of law and direction for judgment previously made, as well as with the whole scope and tenor of the referee’s decision. The inconsistency does not in fact exist. A careful reading of the finding referred to shows that the referee intended to except0 the item in question from the matters settled, as found by him, and to include it in the claim of the plaintiff based upon the failure of the deceased, to convey or devise the farm to him. Indeed the case contains an exception by the defendant to the-finding in question upon -the ground, apparently, that it did. except the item of $400 from the effect of the settlement.

There remains but a single'question arising upon the decision of the referee. He finds that the plaintiff is entitled to the sum. of $1,400, with interest thereon from the 28th day of June, 1888, which was the date of the death of the plaintiff’s testatrix. The-finding as to interest seems to be incorrect. The plaintiff’s, claim, whether for damages for breach of the agreement found, or for compensation for services or expenditures on a quantum meruit, was an unliquidated demand until the amount was ascertained by the referee, and should draw interest only- from the-date of his report. DeCarricarti v. Blanco, 121 N. Y., 230; 30 St. Rep., 926; Smith v. Velie, 60 N. Y., 106. The judgment should be modified by striking out interest on the amount of damages-found by the referee from the date of the death of the testatrix to the date of the referee’s report.

The objection to the testimony of the wife of the plaintiff as to-the agreement between him and the deceased was not well taken. The witness was neither a party to this a'ction nor to the transaction to which she testified, nor was she interested in the event of the action. The recovery, though measured in part by the value of her own services, belongs solely to the plaintiff. Hobart v. Hobart, 62 N. Y., 80.

The order appealed from should be affirmed, with the modification above suggested.

Order appealed from modified by inserting a provision.reducing the amount of the judgment as entered by the sum of $182, as of the date of the referee’s report, and as so modified affirmed, without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.