author: HARDIN, P. J.

text:
    W. H. Rich, App’lt, v. Homer C. Markham, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Justice of the peace—Judgment—Time.
    Where a justice, within four days after the trial of an action without a jury, enters on his minutes, “Judgment is hereby rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides costs of an action,” but did not figure up the costs until after the four days had expired, such judgment is valid as to the damages awarded, hut is void as to the costs.
    Appeal from a judgment of the county court, affirming a judgment of the justice court, and adjudging that the said judgment, so far as the cost therein is concerned, be, and the same hereby is, reversed and held for naught.
    Merrell, Ryel & Merrell, for app’lt; O. S. Mereness, for resp’t.
   HARDIN, P. J.

It is contended by the appellant “that the justice never rendered any judgment until the 19th of April, 1893, and after the lapse of the four days after final submission, and after the cause had passed from his jurisdiction.” We think the facts stated in the return and amended return of the justice are -opposed to this contention of the appellant. The cause was tried' on the 14th of April, 1893, and submitted to the justice for decision; and, inasmuch as he was entitled to four days, the last day for the rendition of a judgment was the 18th day of April, 1893. On that day he made an entry as follows:

“Judgment is hereby rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides costs of the action.

. “W. H. EGGLETON,. J. P.”

In the amended return the justice certifies, viz.:

“On April 18, 1893, I determined that the defendant was entitled to recover damages against the plaintiff to the amount of $40.66, and so entered the same on my docket and on the minutes of the trial kept by me, besides the costs of the action; and on the same date, to wit, April 18, 1893, I entered the items of costs which were to go in the judgment, as follows : * * * The item for serving summons was first entered on the docket among the items of cost, April 19, 1893. I left the amount of costs unfinished, in order to obtain from plaintiff’s counsel the amount of witness and subpoena fees on the part of plaintiff, in order to include them,in the judgment, being of the impression that they should be included in the judgment; and, not obtaining the information desired from plaintiff's counsel in reference to said witness and subpoena fees, I thereupon, and on the 19th day of April-, 1893, finished the item for filing papers by insering twenty-four as the number of papers filed, and $1.20 as the total for filing papers, and also at the same time entered among the items of cost the items for serving summons, $3.25, and immediately footed up the costs, and arrived at the sum of $7.95 as the costs of the action included in the judgment, and arrived at the sum of $48.61 as the total amount of the judgment against the plaintiff.”

When the justice, on the 18th, rendered a decision upon the merits, and made his entry of judgment for the amount of damages, a valid judgment was rendered against the plaintiff, and it was beyond the power of the justice to destroy the same by adding costs thereto on the following day. We think the facts in relation to the acts of the justice bring the case within the rule laid down in Dauchy v. Brown, 41 Barb. 555. In that case it was held that certain alterations did not make the judgment void ; “ that, being made after the time limited by statute for the justice to enter judgment and enter it in his docket, they were clearly void acts, as much as if they had been done by a stranger, and, being void, they could not affect the judgment.” We are entirely satisfied with the opinion of the court delivered by James 0. Smith, J., and we think the authorities cited in the opinion fully sustain the conclusion reached.

Appellant calls our attention to Putnam v. Van Allen, 46 Hun, 492; 11 St. Rep. 855. We think that case differs from the one before us. In that case the trial was before a jury, on October 1, 1885. In that case the justice did not write “Judgment” opposite the total items; and, upon the facts disclosed, it was held that his acts on the 5th of October were without authority, and that the judgment attempted to be entered on that day was clearly void, “ as having been rendered, not forthwith after the verdict, * * * at a time when the justice had no right to enter a judgment.” In the course of the opinion delivered by WILLIAMS, J., he said:

“This judgment appealed from was clearly void as having been rendered not forthwith after the verdict, but four days later, at a time when the justice had no right to enter any judgment”

And that judge further said, in the course of his opinion, “ that no judgment was rendered or entered October 1, 1885.” The case, therefore, differs essentially from the one in hand.

The principal question involved in this appeal is carefully discussed in the opinion of the learned county judge, and we are satisfied with the views he there expresses; and for the reasons therein stated, as well as upon the views we have already expressed, we are of the opinion that the action of the county court was proper.

Judgment of the county court of Lewis county affirmed, with costs. All concur.

The opinion of Judge Turner, in the county court, is as follows : ' '

The issues in this action were fairly tried in 'the court below, and its conclusions thereon should not be disturbed. If, as the appellant insists, the judgment be void, his right to bring this appeal cannot be question. Striker v. Mott, 6 Wend. 465; Watson v. Davis, 19 id. 371; McMahon v. Rauhr, 47 N. Y. 67-72; Gillingham v. Jenkins, 40 Hun, 594. The action was tried before the court April 14,1893, and on the 18th day of April, 1893, the justice made this enty on his minutes:

“April 18, ’92. Judgment is hereby rendered in favor defendant and against plaintiff for $40.66 damages, besides costs of the action. W. H. EGGLETON, J. P.”

It is quite evident that the justice inadvertently wrote “April 18, ’92,” for “April 18, 1893,” the proper date; hence the error did not prejudice either party to-this action.

It appears from the answers of the justice to the interrogatories of plaintiff’s counsel in making an amended return herein that, on the 18th day of April (the last day on which he could render judgment), he figured up and determined the amount of costs in the action, except the items of serving the' summons and for filing papers, and that he did not determine the precise amount of the whole costs until the morning of the 19th of April, 1893, but that all the costs except the two items for serving the summons and for filing papers were set down and entered on the 18tli of that month. It also appears that he did not add up the entire costs until the morning of the 19th of April, after he had determined the amounts for serving the summons'and for filing papers. The time for a justice to render and enter a judgment in an action tried before him without a jury is limited by statute to four days after the trial is finished and the case submitted. Code Civ. Proc. § 3015. This was also the rule before the adoption of the Code, 2 Rev. St. p 247, § 124. The judicial power of the magistrate being thus limited to the four days, any subsequent act of his in attempting to render,a judgment, as well as such judgment itself, would be coram non judice, and of itself wholly void. Gillingham v. Jenkins, supra. The act of the justice in determining the amout of damages and the costs therein is judicial, and not ministerial, and cannot be postponed until after the expiration of the statutory time of four days. He may, however, make the entry in his docket book after the expiration of the four days, as that is a ministerial, and not a judicial act. In legal parlance, a judgment is the conclusion of law upon facts found, or admitted by the parties, or upon'their default in the course of the suit; or to define it more precisely, as expressed by Blackstone and other legal writers, it is “ the decision or sentence of law, given by a court of justice or other competent tribunal, as the, result of proceedings instituted therein for the redress of an injury.” 3 Bl. Comm. 895. “ Where a verdict, or the decision of the justice upon a trial with or without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law.” Code Civ. Proc. § 3014,

It appears from the return and amended return herein that the justice did, on the 18th of April, decide the case, and enter upon liis minutes that judgment was rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides the costs of the action; and that on the same day he entered various items of costs, not adding them up, however, which amounted in the aggregate to the sum of $3.50; and that on the next day, the 19th, he entered the figures for serving the summons and filing papers in the list of other items of costs, and added up and set down in the entry of costs the total or aggregate of all those items. When the justice rendered his decision, and made the entry of judgment on the 18th, the case was closed judicially, so far as he was concerned, and he had no authority or power to alter, add to, or subtract from the same. Dauchy v. Brown, 41 Barb. 555. The respondent contends that the act of the justice on the 19th of April, wherein he determined and set down in the items of costs the fees for serving, the summons and for filing papers, and then added up the total of costs, was so immaterial and slight that it should be disregarded as falling within the scope and intentions of section 3063 of Civil Procedure. This contention cannot prevail as to the acts committed on the 19th, for the act of determining the items and amount of costs was judicial, and, except by consent of the parties, could not be performed on that day. It was not a technical error or defect, but one jurisdictional with the magistrate who did the act, and cannot be sustained in law. Silvern. App. § 589. Nevertheless, it seems to me to be clearly established that .an unauthorized act on the 19th cannot and should not invalidate a proper and completed judicial act done on the 18th of April; hence that the judgment which he rendered on the last-named day in defendant’s favor, and against the plaintiff, for damages, as by him entered, is valid, .and should not be disturbed, Had he added up the costs he determined and entered on that day (the 18th), I think no question could well be raised as to the regularity or validity of the same; but, as it was, he did not do that until the day following, when his power to do so had lapsed.

If I am correct in these views, this judgment should be affirmed as to the amount of damages recovered, but not as to the costs, for there was no valid judgment determined or entered on the 18th, as to the amount of costs which went into the judgment. The judgment herein for $40.66 damages should be affirmed, and reversed as to the costs, the sum of $7.95, and costs upon this appeal allowed to respondent for the' sum of $10 only. Appellant, who paid the $7.95 costs, has an adequate remedy to recover back the same.


source: Caselaw Access Project

author: RUSSELL, J.

license: Public Domain

text:
    John Francis Maher et al., Pl’ffs, v. Della Garry et al., as Executors, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed January, 1896.)

    l. Evidence—Parol.
    An oral agreement, made contemporaneously with the signing of the written contract which would have the effect of nullifying the written agreement and impairing the purpose and power which that agreement expressly states and conveys, is inadmissible in evidence.
    3. Contracts—Construction.
    The contract, with the collateral contemporaneous oral agreement, was construed, in this case, to give to the testator absolute power to rescind during his life time, and leave it to his judgment to prevent after his death the doing of a thing which he might do in life, and to authorize the executors to rescind.
    Action by John Francis Maher and Patrick J. Molohan against Della Garry and others, executors of Thomas Garry, deceased, to. enjoin them from rescinding a partnership agreement, made between their testator and plaintiffs.
    Dill, Seymour & Kellogg, for pl’ffs, Guggenheimer, Untermyer & Marshall, for def’t.
   RUSSELL, J.

This action is brought, not to reform a written contract of partnership or joint enterprise, but for injunctive relief against the executors of the deceased associate, based upon a claim of a right to continue the joint business, derived from an oral agreement collateral to and contemporaneous with a written agreement of partnership or joint enterprise. The deceased Thomas Garry, was the owner of a store business in Grand street, Mew York city, and desired to retire from active participation in it. He associates with him in the continuation of the business two of his former employes, by agreement made May 14, 1892. By the agreement he leaves in his capital, $151,327.45, which he has the right to withdraw, with interest thereon at six per cent, per annum, at any time he sees fit. The plaintiffs contributed $8,000 to the capital and Mahar had the right to withdraw $33 per week and Molohan $18 per week, and had no further interest in the business or profits until the capital of Garry was withdrawn. By the eleventh section of the agreement, Garry or his executors, administrators, successors, or assigns, had at any time the power to terminate, rescind, and annul the agreement, free from all claims for damages, on paying to the parties of the second part the $8,000 and interest. Garry, until his capital was repaid, was the sole owner of the business and assets, and might at will alter any previous part of the agreement; but upon the withdrawal of the full amount of his capital the agreement should be binding on him. Upon the withdrawal of such capital Garry was to assign one-fifth of the business - and assets to each of the plaintiffs; but might, by his election, continue the business for five years, with an option of another term of five years, either by general or special partnership.

The evidence in the case as to the collateral agreement shows that at the time the agreement was read to the plaintiffs, and before signing, they objected to the eleventh section, conferring the power to cancel, saying to Garry that they were willing to trust him, and sign it, but, as he was liable to die, they did not know what his executors would do, and what position they would be then placed in; but they withdrew the objection upon Garry’s stating that he would add a codicil to his will directing his executors to conform to the agreement and have the business continued, provided the plaintiffs complied with the contract. Garry died in May, 1894, having withdrawn of Ins capital the sum of about $78,-000, and his executors had withdrawn at the time of the trial enough more to leave only about $60,000 of Garry’s capital in the business. In April, 1895, the executors served upon the plaintiffs notice that they elected to cancel and withdraw the remaining capital, and offered to pay the plaintiffs the amount of their contribution of $8,000 and interest. The plaintiffs rejected the offer, and brought this injunctive suit, claiming that during the three years of their management of the business it has been a profitable one, and that, through the force of the written agreement and the oral collateral promise, they have acquired the right to continue it so that the business may pay the remaining Garry capital with interest, and that thus they may acquire a two-fifths interest in the property, with the contingent partnership privileges set forth in detail in the written agreement. If the agreement is now rescinded the plaintiffs will only receive the capital they put in, with interest, and retain the sums concurrently paid or allowed to them for services out of the' business. In that event, their loss would he the amount profit earned by their management of their business, they being indemnified for the capital which they put in, and, to a certain amount, for their labor in the continuance of the business.

It is very apparent, both from the terms of the agreement itself and from the conversation between the parties at the time of the execution of that agreement, that the testator intended to own and control the property and business absolutely until his capital was withdrawn, and to have the power to withdraw from the arrangement and to resume possession at any time that he saw fit, without being obliged to give a legal excuse therefor, as he was trying an experiment in placing these two young men in the control of his business; an experiment from which he might wish to retire in case of unskillful management, or such a change in the business affairs at that location as might render a continuance unprofitable or hazardous. It is also apparent from the agreement and the conversation that the plaintiffs saw that they had nothing to lose, and were very willing to trust' to the judgment, discretion, and good will of the testator in offering them the management of the business, by which they might within a few years acquire a very valuable interest in it. Upon this footing and understanding the parties made their written contract. In no event were the plaintiffs to have anv interest in the property -until, by the continuance • of the business in the uncertain future, that business had freed itself from, the burden of the capital which started it by the accumulated profits; and until that time should come the testator might terminate the arrangement, indemnifying the plaintiffs in sums fixed for their capital advanced and services performed. This was not only the scheme of the contract, but it was plainly and understandingly expressed in the instrument itself, so that the plaintiffs fully understood its scope and effect. To now interpose an oral agreement,, made cotemporaneously with the signing, which would render the testator’s rights, which were expressly provided should be.carried over to his executors, ineffective, and to destroy that power of cancellation which was definitely provided for, would have the effect of nullifying the written agreement, and impairing the purpose and power which that agreement expressly stated and conveyed. This case, therefore, does not present the situation of a general oral agreement, a part of which is, by its terms, committed to. writing and signed, and the other part left unexecuted by any written document; but rather that of an agreement full and complete in all its parts, and signed by the parties; as containing the agreement.

Nor can fraud be predicated of the action of the testator or his executors by their insistence upon the legal rights fixed by that agreement. It may have surprised the plaintiffs that the testa- and the executors should act as they did, and by the action of the testator in making a codicil to his will of the character he did, and then revoking it, that the executors should terminate a business alleged to be profitable. Their surprise and disappointment do not impose upon the other parties the charge of fraud, for the contingency was on.e which they knew,might occur when they executed the agreement under the circumstances they did.

There is another view of this case which may be taken without treating the alleged agreement as an attempt to modify the legal effect of the written agreement, and which is satisfactory as reconciling the conversation with the agreement itself. The plaintiffs concededly gave to the testator the absolute power to cancel during his lifetime. The trust which they reposed in his willingness to deal justly with them was fully as great as that which they would be expected to place in him if they placed a moral reliance upon his executing a favorable provision in his will. They were willing to trust him at the same time not to exercise unjustly the* power to cancel, and also to incorporate a provision in his will continuing the business; Both acts had to be performed in his lifetime; both acts were left, not only to his sense of justice, but to his possible perception of the danger of continuing a business decreasing in value or increasing in risk in time's of financial distress, so that he might provide for himself, or for his estate when he could no longer supervise it, against the perils of the future. So considered, the whole, transaction at the time of the signing of the instrument was consistent'with the purposes and intentions of the parties, and it is the most reasonable supposition that the pláintiffs 'relied upon his willingness to allow the business to continue after death, if in his judgment it should likely be safe to do so. rather than upon a legal obligation to prevent after his death the doing of a thing which he might do in life, and which legal obligation was nowhere incorporated into the lengthy and expressive instrument which contained the agreement of the parties. From these views it follows that judgment must he rendered in favor of the defendants dismissing the complaint, with costs


author: BROWN, P. J.

text:
    Barbara Bauer et al., Resp’t, v. William S. Gribbel et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 18, 1896.)

    Contract—Covenants—Building restriction.
    Where the owners of adjoining city lots hold subject to a covenant not to erect thereon any building, in the first instance, less than two stories high and 13 feet from the street line, one may restrain the other from erecting on a part, of his lot a building contrary to such restriction, though tliere is on such lot at the time a building which complies with the covenant.
    Appeal from an order continuing a temporary injunction.
    Action by Barbara Bauer and another against William S. Gribbel, and another to restrain tlte erection of a building on a lot belonging to defendants. The parties are the owners of two contigous city lots, which they severally hold subject to a covenant in their respective deeds prohibiting the erection on said lots, or any part thereof, of any building, in the first instance, less than two stories in height, and less than 12 feet from the line of the street in front thereof, on each of which lots was standing at the time they acquired the property a two-story dwelling house, not less than 12 feet from the street line. Defendants having begun the erection, on a part of their lot of a one-story store building, less than 12 feet from-the front line of the lot, plaintiffs brought this action to restrain the erection of such building. From an order continuing a temporary injunction until final hearing, defendants appeal.
    Jay S. Jones, for app’lts; Edward E. Vollmer, for resp’ts,
   BROWN, P. J.

— The appellants and respondents are the owners of adjoining property on the northerly side of Arlington avenue, in the city of Brooklyn. The common source of title was one Edward F. Linton, who conveyed the property to one Anna M. Beach The deed to said- Beach contained the following covenant:

“The party of the second part, for herself, for heirs and assigns,hereby expressly covenants that the first building or buildings erected on said lots, or on either, anv, or all of them, or on any part of either or all of said lots, shall not be less than two stories in height, arid that the front line of such building or buildings shall he set back at least twelve feet from the line of the street fronting the same.”

The said Anna M. Beach conveyed to the appellants and respondents the lots of land now owned by them, respectively; and such conveyances were made subject to the restriction aforesaid as to the building line, and the buildings to be erected upon the lots conveyed-. Prior to the commencement of this action there were upon each of the lots aforesaid dwelling houses, which had been erected in full compliance with the covenant aforesaid, the front line of which was 12 feet from the street line. Between the west side of the appellants’ house and the west line of their lot there was a vacant space of about 13 feet, from which the appellants have commenced the erection of a one-story building, which projects 7 or 8 feet in front of the dwellings. The original injunction restrained the appellants from continuing the erection of this building, and the order appealed from continued such injunction until the final judgment in the action.

We are of the opinion that the order should he affirmed upon the merits. The meaning and intent of the covenant is plain. It forbids the erection of any building on the lots, or any part of them, in the first instance, unless such building is at least two stories in height, and is set back 12 feet from the street line. One evident purpose of the covenant was to establish a building line, and the restriction in this respect applied to every foot of the land conveyed. The appellants argue that this construction would prevent the erection of an outbuilding in the rear of the lots. Such a building would clearly be within the letter of the covenant, but it would not necessarily follow that a court of equity would specifically enforce the covenant against such a structure. AVhether it would or would not depend upon the circumstances of each case. Conger v. N. Y. W. S. & W. Railroad Co., 120 N. Y. 29; 30 St. Rep. 124. The covenant must have a reasonable construction and one which will carry out the evident intent of the parties. I do not think it would prevent the construction of a one story extension in the rear of a dwelling house that in other respects complied with its terms, and possibly it would not prevent the construction of a one-story wing on the side of a two-story house. But the building in process'd: construction extends beyond the building line, and infringes upon the 12-foot space, and in this respect it is a substantial and material violation of the convenant.

The order must be affirmed, with $10 costs and disbursements,

All concur.


author: PER CURIAM.

text:
    Augusta G. Genet, Resp’t, v. President, Manager, and Company of the Delaware & Hudson Canal Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Reference—Withduawing submission.
    Where a cause pending before a referee was submitted on March 19th, and the documentary evidence was soon after withdrawn for use in the trial of another action between the same parties and was not returned to the referee until October 17th, and in the meantime on July 2d, defendant moved before the referee to reopen the cause and put in evidence the judgment rendered in such other action, whieli motion was pending and undetermined on December 3d following, when plaintiff served .notice of her election to terminate the reference, on the ground that the referee’s report liad not been filed or delivered within 60 days after final settlement of the cause, it was held that, at the time when plaintiS’s notice was served, the cause had not been finally submitted to the referee.
    Action by Augusta G. Genet against the president, manager, and company of the Delaware & Hudson Canal Company, for damages on contract. The cause was referred, and was submitted to the referee, March 19,1895. Pending the trial before the referee, plaintiff began an action against the defendant herein, in the superior court, based on the same contract involved in this action, and raising an issue identical with that pending before the referee, on the trial of which second action documents and exhibits in evidence before the referee were borrowed from him by both parties, and offered in evidence therein, and not finally returned to him until October 17,1895. That action resulted -in a judgment, July 2, 1895, in favor of defendant, who thereupon moved the referee to reopen the case, and put in evidence the judgment of the supreme court, which motion has not yet been decided. December 3, 1895, plaintiff served notice on defendant’s attorney that she elected to end the reference. From an order appointing a new referee, on motion of plaintiff, supported and opposed by, affidavits setting up, with other matters, the foregoing facts, defendant appeals.
    F. Walling, for app’lfc; Geo. C. Genet, for resp’t,
   PER CURIAM.

We are of opinion, upon the facts as they appear in the affidavits, that, at the time, when the plaintiff gave her notice electing to terminate the reference, the cause was not finally submitted to the referee, within the meaning of section 1019 of the Code of Civil Procedure.

The order should be reversed, with $10 costs and disbursements/ and the motion denied, with $10 costs.


author: BARTLETT, J.

text:
    Markar G. Dadirrian, Pl’ff, v. Z. K. Theodorian, Def't.

      (Supreme Court, Kings Special Term,

      Filed July, 1895.)

    Trade-Marks—Descriptive words.
    The word “Matzoon,” though in the Armenian language a descriptive term meaning “ fermented milk,” will be protected as a trade-mark, where it lias been used for many years as the designation of a preparation of fermented milk.
    Action by Markar G. Dadirrian against Z. K. Theodorian to enjoin the infringement of plaintiff’s trade-mark by defendant.
    Betts, Hyde & Betts, for pl’ff; Foster L. Backus, for def’t.
   BARTLETT, J.

The equities of this case are plainly with the plaintiff. The evidence leaves no doubt in my mind that the defendant’s desire to use the word “ Matzoon ” on his goods is due to the trade meaning which that word has acquired through the efforts of the plaintiff, and not at all to the descriptive character of the term. Indeed, until the plaintiff’s use of it, it had no descriptive character which anybody in this country could comprehend except the few hundreds of persons here who were acquainted with the Armenian language. To every one else it was a fanciful or arbitrary designation, without any meaning of its own. The plaintiff, by attaching it to his preparation of fermented milk, has, after many years of labor, given it a signification,which is now well understood by the trade and the public, and the defendant, by marking his compound in the same way, seeks to avail himself of the benefit of the plaintiff’s industry. The resemblance between his label and those of -the plaintiff satisfies me that the defendant must have intended to induce purchasers to buy his preparation under the impression that it was the preparation of the plaintiff; and, under such circumstances, the plaintiff should be protected, unless there is some rule of law which stands in the way. Association v. Piza, 24 Fed. 149.

The rule invoked by the defendant is that a word is incapable óf exclusive appropriation as a trade-mark which was originally descriptive of the article to which it is applied, or which has become incorporated into the English language, so as to be recognized as descriptive of the article. “Matzoon,” he contends, is the Armenian name for fermented milk, not only in the semi-solid form in which it is most generally made, but also in the less common liqfiid form. He claims that this terms is properly descriptive of the liquid form in Armenia, and in this country among those acquainted with the Armenian tongue, and hence that no one can acquire an exclusive right to use it as a trade-mark here. The word “ maadzoon” seems most nearly to represent in English the sound of the name which Armenians give to the semi-solid or custard-like preparation of fermented milk made in Turkey. There is a conflict of evidence as to the application of this term to the same substance when liquified. The fact seems to be that when reduced to the liquid state, either intentionally or by shaking in the process of transformation, it is still denominated “maadzoon ” in some districts, while in others it is called “taan.” When the plaintiff came to put his liquid preparation upon the market in this country, he adopted as its designation an inaccurate transliteration of the name most commonly applied by Armenians to the semi-solid product. “Matzoon” does not correctly indicate the lettering of the Armenian word or its sound, to judge from the testimony of the numerous Armenian witnesses in this case. There is probably sufficient resemblance in the sound, however, to signify to Armenians that the preparation was some sort of fermented milk. But 1 do not think that such a term can properly be regarded as descriptive in this country. It would be absolutely meaningless to all but a little group of Armenians in the millions of inhabitants of the United States. It would be equally meaningless in most of Europe. A Choctaw word would signify just as much. To the medical profession, among whom the plaintiff sought approval for his product, and to the drug trade, the name “ matzoon ” was practically an arbitrary or fanciful designation. It was not incorporated" into the English language. It was derived from a language hardly known here, and to the vast majority of our people it meant nothing. Hence the rule upon which the defendant relies has no application here.

There must be judgment for the plaintiff in accordance with the findings proposed in his behalf, as modified and signed. The injunction, however, will not go to the extent of fori lidding the use of the picture to Mt. Ararat and the ark. Such a picture appears to have been a symbol of things Armenian long before the plaintiff contrived his trade-mark,

Ordered accordingly.


author: BEEKMAN, J.

text:
    Catharine A. Hallahan, as Administratrix, etc., Pl’ff, v. George G. Webber et al., as Assignee, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    1. Contract—Fraud—Rescission.
    Where a contract is tainted with fraud in its inception, the defrauded party, upon the discovery of the deceit, has an election either to stand on the contract, or to rescind it, hut such election must he exercised within a reasonable time thereafter.
    S. Same.
    Where it is apparent that the delay lias not been unrca=onable, and that the rights of others have not been affected or jeopardized by it, the right to rescind is not gone because the person having it did not exorcise it immediately upon his discovery of the facts upou Which the right rested.
    S. Same—Waiver.
    A waiver of the right to rescind, or an election not to rescind, is either a matter of express declaration, or arises as a matter of necessary inference from the acts or conduct of the person against whom it is assorted.

      4. Same. *
    In this case, it was held that neither the action nor inaction of the plaintiff during the period which intervened between the making of the assignment and the election by her to rescind the sale affords grounds from which it can be properly inferred that she elected to afilian the sale, or which makes the assertion of her right to rescind, at the time when it was exercised, either inequitable or unjust.
    5. Same—Sale by general assignment.
    The right of a seller to rescind after an assignment by the purchaser is not affected by the fact that the assignee lias sold the goods, while the vendor does not seek to recover tire goods, but only the proceeds.
    Action by Catharine A. Hallaban, as administratrix, against George 0. Webber and another, as assignee, to recover the proceeds of property purchased from plaintiff to defendant Webber, on the ground that the purchase was induced by false representations of Webber as to his solvency.
    Theodore II. Friend, for pl’ff; Benjamin H. Bayliss, for def’ts.
   BEEKMAN, J.

I think it quite clear that the representations which were made by the defendant Webber to the plaintiff in order to induce the sale oE the property in question were false, and that the plaintiff would not have parted with her goods, if she had not relied upon them, and believed them to be true. It is perfectly plain that, at the time of the purchase by him from the plaintiff, Webber’s indebtedness largely exceeded his assets, and that he was in failing circumstances. His statements to the plaintiff, however, were of such a character as to justify a belief on her part that he was entirely solvent, was doing a prosperous business, and would be able to meet the notes, which he induced her to take for the property, upon their maturity. The evidence was at least abundantly sufficient to justify a recission of the contract. Hammond v. Pennock, 61 N. Y. 145.

The only point in the case which really invites discussion is the question whether the plaintiff, with knowledge of the fraud which had been practiced upon her, acquiesced in the transaction, and thereby made her election not to rescind the same. The facts relied upon by,the defendant in support of the affirmative óf this proposition are that on April 9, 1894, some seventeen days after he had made a general assignment for the benefit of his creditors, he called a creditors’ meeting, at which the plaintiff was present. A proposition was submitted on the part of the defendant Webber for a settlement of his indebtednéss on the basis of fifty cents on the dollar, for which his notes were to be given. The plaintiff objected to this, and the offer received no further consideration. Nothing.further appears to have been said by her at this meeting, but'after it was over, according to the testimony of one of the creditors, the plaintiff stated to him “ that she could break up this whole assignment, in her opinion, if ‘she desired to do so. She said she did not' know whether she should or not.” It also appears that at some time between the last-mentioned date and the 10th day of July following, the plaintiff called at the office of the counsel of the assignee for the purpdse of inquiring how the affairs of the assigned estate stood, and what dividend or settlement might be expected, and was informed by the counsel that he did not know. Nothing further seems to have taken place at the interview, beyond complaints on the part of the plaintiff that the defendant Webber had treated her badly in the matter. It also appears that, at the meeting of the creditors above referred to, it was stated by the assignee that unless some arrangement were made the- assigned property would be sold at public auction very shortly. On the 28th day of April, 1894, such a sale was had of the assigned property, including that which had been sold by the plaintiff to said defendant Webber. The usual notices required by .law were given, but the plaintiff claims that she was absent from the city at the time, and had no actual knowledge of the fact. On the 10th day of July the counsel for the plaintiff notified the defendants that the plaintiff elected to rescind the salé, and at the same time he tendered the notes which had been given to her for the purchase money, and demanded the return of-the property, which was refused, and thereupon this action was brought. It is contended on the part of the defendants that all of these acts on the part of the plaintiff, and the elapse of time between the discover}' by her of the. alleged fraud and the date when she attempted to rescind the sale, evinced an acquiescence on her part in the sale, which was, in itself, an election not to rescind.

The law is well settled that, where a contract is tainted with fraud in its inception, the defrauded party, upon the discovery of the deceit, has an election either to stand on the contract, or to rescind it, and that such election must be exercised within a reasonable time thereafter. It is true that in many cases it is stated that the election must be made promptly, or as soon as practicable, after the discovery of the fraud. The reason for such a rule is that others shall not be prejudiced or misled by the appearance of ownership with which the vendor has invested the other party, when a prompt disaffirmance of the sale, upon discovery of the fraud affecting it, would have prevented any such injury. Whether or not a rescission for fraud has been prompt and timely must therefore be determined in the light of the reason which gives life to the rule, and in each case will depend upon the peculiar facts and circumstances of such ease; and where it is apparent that the delay has not been unreasonable, and that the rights of others have not been affected or jeopardized by it, it cannot be said that the right to rescind is gone because the person having it did not exercise it immediately upon his discovery of the facts upon which the right rested. A waiver of the right to rescind, or an election not to rescind, is either a matter of express declaration, or, as is more frequently the case, arises as a matter of necessary inference from the acts or conduct of the person against whom it is asserted. Where, after the discovery of the fraud, the person claiming the right to'rescind continues to deal with the property as if he were the owner, and does acts which are consistent only with an affirmation of the transaction attacked, he must be held to have elected not to rescind. The whole doctrine on this subject is most satisfactorily and clearly expressed in the case of Clough v. Railway Co., L. R. Exch. 26, where the court, in referring to cases of rescission of contracts for fraud, says:

“In such cases the question is, has the person on whom the fraud was practiced, having notice of the fraud, elected not to avoid the contract? or has he elected to avoid it? or has he made no election? We think, that, so long as he has made no election, he retains the right to determine it either way, subject to this: that if in the interval, whilst he is deliberating, an innocent third party has - acquired an interest in the property, or if, in. consequence of his delay, the position, even of the wrongdoer, is affected, it will preclude him from exercising his. right to rescind. And lapse of time without rescinding will furnish evidence that lie has determined to affirm the contract, and, when the lapse of time is great, it probably would, in practice; be treated as conclusivé evidence to show that he has so determined.”

This is not inconsistent with any of the decisions of the courts of this state, and is so accordant with reason and justice as to commend itself for adoption.

I do not think that the matters relied upon by the defendants in support of their contention justify the conclusion that the plaintiff liad lost her right to rescind the sale at the time when she manifested her election so to do. Her presence at the creditors’ meeting, where her attitude was that of dissent, certainly did not involve any dealing on her part with the defendant Webber, or with the assignee, from which it might clearly be inferred that she elected not to rescind the sale. Nor does it appear that the outcome of the meeting, in its relation to the defendant Webber, or to the assignee and creditors, would have been any different if the plaintiff had then and there declared her intention to rescind. Indeed, at no time during the three months which intervened between the date of the assignment and the time when the plaintiff manifested her election, were any acts done by either of the defendants which would not have been dope if the plaintiff had expressed her purpose at an earlier date, save, possible, at the sale of the'property by the assignee. The conversation between the plaintiff and one of the creditors, which took place after the meeting had adjourned, was evidence of nothing except that the plaintiff was then aware of the fraud which had been practiced upon her. but had not as yet determined whether she would attack the transaction on that ground or not. The inquiry made by her, at a subsequent period, of the counsel for the assignee, was for information in regard to the assigned estate, and the prospects of a dividend, which, of itself, was not evidence of acquiescence in the sale, but was probably sought by the plaintiff in order to enable her to come to a final determination as to the course which she should pursue. This, under the circumstances, was not at all unreasonable, and the plaintiff should not be prejudiced by reason of an inquiry which had a legitimate bearing upon the question whether it was to her interest to rescind the sale or not, and which did not mislead any one.

We have, therefore, left to consider, only the effect of the sale of the property at public auction by the assignee. In the first place, it is to be remembered that the latter was not a bona fide purchaser for value, and could not have held the original property against the plaintiff. The mere fact, therefore, of the sale by him under the circumstances, has not placed him at a disadvantage, in view of the fact that the plaintiff does not and could not claim, as against him, more than the proceeds of such sale. She is not asserting title as against any of the purchasers from him, nor is she seeking to fasten any liability upon him which is greater or more prejudicial than if he still retained the property in his hands. While it was in his hands it was still held by him for her benefit, upon her election to rescind the transaction with the defendant Webber; and her election after the sale gave effect to the rescission, so far as the assignee is concerned, only in respect to the proceeds in his hands. There has been simply a change in the form of the property. The proceeds of the sale took its place, and in the hands of the assignee, were impressed with the same conditions, and equity requires that they should be applied and dealt with accordingly. Am. Sugar Refining Co. v. Fancher, 145 N. Y. 552; 65 St. Rep. 506. 1 do not think, therefore, that either the action or inaction of the plaintiff during the period which intervened between the making of the assignment and the election by her to rescind the sale affords grounds from which it can be properly inferred that she elected to affirm the sale, or which made the assertion of her right to respind, at the time when it was exercised, either inequitable or unjust. The contention that she did not make a sufficient tender of all that she bad received from the defendant Webber upon the original sale is not established by the evidence. The entire purchase money was included in the nineteen notes made and delivered by him to her. The cash which he paid a,t the same time was given on account of previous sales made by lilm of other property of the plaintiff, which he had sold for her as her agent. Even the tender of the notes, although made, was imnercssary. Nichols v. Michael, 28 N. Y. 264-272; Gould v. Bank, 86 N. Y. 75-82.

For the reasons-which have been stated, the plaintiff is therefore entitled to recover from the assignee the proceeds realized by him upon the sale "of sc much of the property of the plaintiff as came into his hands, from which, however, should be deducted a pro rata proportion of the expenses of the sale. In respect to so much of the- property as cannot be identified in its converted form, the vaiue of the same must be ascertained as of the date of the assignment, and judgment therefor awarded against the defendant Webber. Costs are allowed to the-plain tiff, and as a reference will be necessary before final judgment can be awarded, notice of settlement of'the interlocutery judgment must be given.

Ordered accordingly.


text:
    People ex rel. Simon Leerburger, Plaintiff, v. Mutual Reserve Fund Life Association, Defendant.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    1. Mandamus—Peremptory.
    Where the relator proceeds to argue his case in support, of an applica t.ion for» peremptory writ of mandamus, all the facts,which are contained in the answering papers of the respondent, must be taken as true.
    2. Insurance—Forfeiture—Waiver.
    If, in any negotiation or transactions with the insured, after knowledge of the forfeituie, the company recognizes the continued validity of the policy, or does acts based thereon, or requires the insured hv virture thereof todo some act or incur some trouble or expense, the forfeiture is asa mat? ter of law, waived, and such waiver need not be based upon any new agreement or an estoppel.
    8. Same.
    The test, in such a case, is: Were any of the acts of the company after the forfeiture of the policy had taken place, so inconsistent with continued existence of the forfeiture as to express in themselves an intention to waive the default, and to recognize the relator as a member of the association -in good standing ?

      4. Same. ■
    . The forfeiture of the membership of the relator was held, in this case, not to have been waived by the association.
    Application for a peremptory writ of madamus to compel the Mutual Reserve Fund Life Association to reinstate relator as a member of said association.
    Samuel H. G-uggenheimer(Ott Horwitz, of counsel), for relator; George Burnham, Jr., (W. T. B. Millilcen, of counsel), for resp’t.
   BEEKMAN, J.

The respondent is a membership corporation, carrying'on a business of life insurance upon the co-operative or assessment-plan, and the relator was and claims still to be a member of the same. The. respective rights and duties of the members and corporation are found in the constitution or by-laws of the association, the application for membership, and the certificate ' of membership or policy of insurance issued by the respondent to its members. The constitution- or by-laws are adopted by the members, and are subject to change by them at meetings provided for in the constitution. At such meetings they also elect the board of directors. They thus, in the first instance, exercise full legislative powers in the direction of the affairs of the corporation. On the 1st day of June, 1883, the relator was duly admitted to membership, and a written certificate of such membership was duly issued to him. On or about the 22d day of June, 1885, this certificate was surrendered, and another one issued in its place, and this was repeated from time to time until on or about January 12, 1891. when the last certificate, and the one under which the relator now asserts his claim, was duly issued to him. By such certificate it was, among other things, provided that the Mu- ■ tual Reserve Fund Life Association received Simon Leerburger as a member of the association, and upon the condition of the payment by him of the dues for expenses, to be paid on or before the 29th day of May of every year during the continuance of his membership, and also upon the further condition of the payment-of all mortuary premiums within 30 days from the first week day of the "months of February, April, June, August, October and December of each and every year, there should be payable to Siegmund Harris (creditor), as his interest may appear, one-half, and to Albert Harris (creditor), as his interest may appear, one-half, if living at the time of the death of said member, otherwise to the legal representatives of the said beneficiaries, the sum of §5,000, within 90 days after acceptance of" satisfactory evidence to said association of the death of said member. It was also provided that no personal liability was incurred by the member in respect to any of such payments, and that the continuance of the certificate, or “policy of insurance,” as it is sometimes called, and all payments by the members holding the same are voluntary, at the option of the member, to continue only so long as he may desire to keep the certificate or policy in force, but that a failure to such payments will terminate the contract; and the contract is, in express terms, defined to be a bi-monthly term contract, renewable at the option of the member, before expiration, upon payment of the dues and mortuary premiums at the times and in the manner therein provided. It is also further specified that the certificate or policy of insurance is issued and accepted subject to the express condition that if any of the payments stipulated in said contracts shall not be paid on or before the day of the date as therein provided, then the consideration thereof shall be deemed to have failed, and the certificate or policy shall be null and void, and all payments made thereon shall be forfeited to the association. The constitution piovides, among other things, that if any of the conditions or provisions of the certificate of membership or constitution or by-laws are violated by a member, then, and in every such case, such membership shall at once cease and determine, and the certificate shall be null and void, and all payments made thereon forfeited to the association.

In the case at bar the amount of the annual dues to be paid to the relator as a condition of the continuance of -his membership and insurance was fixed at the sum of $10, and should have been paid by him on or before the 25th day of May, 1895. This, however, he failed to do, for reasons which will be hereafter stated, and, the respondent refusing to recognize him any longer as a member, he now applies to this court for a peremptory writ of mandamus, in the first instance, to compel the respondent to restore him to his rights of membership, upon the claim that there has been a waiver by it of the forfeiture. The attorney for the respondent read upon the hearing affidavits which, to some extent at least, put in issue some of the facts set forth in the moving papers; and as the relator, notwithstanding, proceeded to argue his case in support of his application for a peremptory writ, all of the facts which are contained in the answering papers of the respondent must be taken as true. People ex rel. O’Sullivan v. New York Law School, 68 Hun, 118; 52 St. Rep. 14, and cases there cited. It appears that in accordance with the custom of the respondent, a printed notice was sent by it to the relator on or about the first day of April last, informing him that the annual dues on his policy, amounting to $10, were payable on the 29th day of May, 1895, “without grace,”at the office of the association. The circular also contained these statements:

“Prompt remittance is requisite in order that your protection be continued. The dues stated above should not be confounded with the mortuary payments. The payment of the one is equally as important as the payment of the other If the same is not paid within the time stated, the policy and all the payments thereon will become forfeited and void, and your membership with the association will expire, with all rights thereunder. The sending of this notice or acceptance of above dues shall not be held to waive any forfeiture or expiry caused by non-payment of any previous sum, when due, under said certificate or policy/’

And immediately following the subscription of the circular by the secretary of the association appears in heavy printed capitals the following.

‘•The above amount must be paid on or before May 29 th. 1895.”

_ It will thus be seen that the relator had substantially two months’ previous notice of the maturity of his annual dues, accompanied by the statement of the respondent pointedly calling his attention to the necessity of paying the same on the day specified, in order to avoid a forfeiture of his membership and policy. Under the rules and regulations of the association, members were authorized to designate persons to whom all notices or other communications intended for them might be addressed, and for that reason the relator designated one Siegmund Harris, who was his son-in-law. The circular above referred to was accordingly forwarded to Mr. Harris, and was received by him, and it had been his practice to take charge of such matters, and to pay for the relator the annual dues and mortuary calls as the same matured. He neglected, however, in the case of the dues which were payable on the 29 day of May, 1895. The explanation given by him for his default is that he had just removed his business, and was so engrossed in superintending the removal and arranging of his new stock that the matter slipped his mind until the 6th day of June. Upon this state of facts it is perfectly plain that the policy was forfeited, and the membership of the relator had come to an end. The continuance of the contract between the "parties was in express terms conditional upon the exact and timely performance by the relator of the obligations assumed by him, and his failure to perform them necessarily resulted in a complete termination of any further obligation on the part of the company to him. But the relator claims that, by reason of what took place subsequently between himself and the company, the forfeiture was waived, and he was completely restored to his status and rights as a member and under his certificate or policy of insurance. Whether there was such a waiver or not depends upon the legal effect of the following facts:

On the 4th day of June, 1895, a letter was addressed by the secretary of the company to the relator, requesting him to state whether or not his annual dues, payable on May 29, 1895, had been paid. The letter also contained the following statements,

.“If you have paid or remitted the above, please stgte actual date of so doing, whether by check or otherwise, and to whom; and, if you have a receipt for such payment, the name of the person signing or countersigning same, together with the date of the receipt. Our books show that the above annual dues remain unpaid, and that your policy has expired. Remittances are frequently received without advice as to the name of the member remitting the same or number of the policy to which credit should be given; hence the correct credit cannot be given the member making the payment. IE through an'oversight or misunderstanding the above has not been paid, and you desire to reinstate your policy, 3'ou may be reinstated upon furnishing the association with a satisfactory application for reinstatement and warranty of health, and under the conditions thereof, and subject to the approval of the executive committee, and payment of amount of vour dues as above. The signature of a member to the applicacation for reinstatement must be certified to by some responsible person. In any case, when deemed necessary, a medical examination will be required.”

By this communication the respondent clearly pointed ont to the relator the fact that his membership and insurance had both come to an end by his own act, and that the only remedy was an appeal, upon conditions named, to the executive committee, under a by-law of the association, which provides that:

“The executive committee shall have power to reinstate a delinquent member at any time within one year, for good cause shown, and upon satisfactory evidence of good health, and upon payment of all delinquent dues and assessments.”

Upon the receipt of this letter, and on the 6th day of Juno, 1895, Mr. Harris forwarded to the respondent his check for the sum of §10, inclosing therewith the letter which he liad so received. This check was duly received, and was deposited by the respondent on the 7th day of June, 1895, the indorsement reading, “ For deposit with the National Park Bank to the credit of the Mutual Reserve Fund Life Association, mortuary account.” It appears also that on the 1st day of June. 1895, a mortuary call was made upon the relator amounting to $31.95, to be paid within thirty days from said date; and printed upon it was this statement:

“The sending of this notice or acceptance of above premium shall not be held to waive any forfeiture caused by nonpayment of any previous sum when due under said certificate or policy.”

In the transaction of an enormous business such as is conducted by the respondent, it must often be the case that such calls are made inadvertently upon members whose policies and memberships have recently expired. Such a caution is, therefore, both prudent and reasonable, in order to avoid a claim that the call was a recognition of a continuance of membership and a waiver of the forfeiture. The relator claims that this call was received by Harris on or about June 3, 1895, and that Mr. Harris, knowing nothing at that time of any infirmity in respect to the policy of membership, mailed to the respondent a check for the amount of the call in question, which check was received by the'company on June 13. 1895, and indorsed for deposit with the Merchants’ Exchange Lational Bank “to the credit of the Mutual Reserve Fund Life Association, dues account.” During all this time, notwithstanding the plain notice conveyed by the company to the relator in the letter of June 4th that his policy and membership had expired, and that his only hope of. reinstatement was to make application therefor to the executive committee, and to comply with the other conditions, which were specified, no steps of any kind were taken by him to that end. It docs appears, however, from the relator’s papers that on or about June 11, 1895, bis attorney, claiming then to be acting only for the beneficiaries under the policy of insurance, visited the office of the company, and requested the reissuance of the policy to a new beneficiary, and that he was thereupon informed that such change could not be made immediately, as the condition of the policy was doubtful, by reason of the failure to pay the annual dues. The answering affidavits of the respondent—which, as has been stated, must be taken to be true for the purposes of this motion—give the following version of this interview, viz.: That on the 10th day of June someone called at the office of the company on behalf of the relator, and was then informed that the policy had lapsed; and that. if the relator desired to continue his insurance with the association, it would be necessary to make application for reinstatement, and to enter into a new contract, and to conform to the terms and conditions nresoribcd by the constitution, by-laws, rules, and regulations of the association; and that he was furnished with the proper blank therefor, which blank was brought by him to the company on the 12th day of June, filled out and signed, but which the person so bringing refused to leave for the consideration of the" executive committee. In answer to the claim that there had been an unconditional acceptance of the checks which had been sent to the company on behalf of the relator, in payment of the annual dues and the mortuary call, it is stated on behalf of the respondent that:

“ It is the custom of said association, when payments of dues or mortuary calls are tendered upon lapsed policies, to give the delinquent member an opportunity to apply for reinstatement, and to retain the money so tendered with the consent of the delinquent member, subject to his order, as they did in the ease of said relator, awaiting his election to recall such money, or to make application for reinstatement upon the conditions prescribed bv the rules and regulations of said respondent association as aforesaid.”

In this connection it will be remembered that the notices sent to the relator contained the statement that the acceptance of the money payable by hipi should not be held to be a waiver of any previous default which had been incurred by him. -The papers read on behalf of the respondent also show that among the books of account kept by it have been two in which are accounts entitled “Suspense Account,” in one of which are entered the respective amounts tendered by delinquent members for overdue annual dues, and in the other the amounts tendered by such members for overdue mortuary assessments, all of which are credited to said delinquent members, and held subject to their order. On June 7, 1895, the check received on that day by the company for the annual dues of the relator "was entered' in the suspense dues account to the credit of his policy, and on the 13th day of June, the date on which the same was received by the respondent, the check which tvas forwarded on behalf of the relator for the mortuary call was entered in the suspense mortuary assessment account to the credit of said policy. On the 14th day of June the secretary of the respondent addressed a letter to the relator, in which it was stated that the remittance of $10 tendered in payment of the annual dues was received on June 7th, and placed in the suspense account, subjéet to his order, by reason of the lapse of the policy-on May 29th. In this letter the relator is also informed that his representative called at the office on June 10th, and had been furnished with a blank form of application for reinstatement; that, he returned on June 12th, with the application filled out and signed, presumably by the relator, but refused to leave the same for the consideration of the executive committee. The letter closes with the following statement:

“ I call your attention to the matter, in the hope that you will furnish an application for reinstatement upon the form herein inclosed, and return it promptly to this office. It will then be submitted to the executive committee for their action. ■ If approved "by them, your policy will be thus reinstated, and a receipt in accordance with the rules of the association sent to you. In the meantime your policy remains lapsed, null, and void.”

It is claimed by the relator that he first personal knowledge of the condition of his policy and membership on the day on which this letter bears date. On the 21st day of June, 1895, the secretary of the company again wrote to the relator, calling his attention to his previous letter, and stating that he had not been favored with a reply, adding that he had also found that on June 13th the relator had remitted to the office $31.95, tendered in payment of mortuary call No. 80, which remittance had been placed in the suspense account, subject to relator’s order, by reason of the lapse of his policy. He again advises the relator as to the course which he should pursue, in the following words :

“I inclose to you herewith a blank form of application for reinstatement, requesting that you will kindly fill out the blank spaces thereon, date, sign the same, have your signature witnessed, and return it to this office. It will them be submitted to the executive committee for their action. If approved, and all moneys due have then been received, your policy will be thus reinstated, and a receipt in accordance with the rules of the association sent to you. As the policy now stands lapsed, null, and void, let me request your prompt attention and reply.”

By the rules and regulations of the respondent, delinquent members desiring reinstatement are required to sign a certain form' of application, containing certain statements in regard to the physical condition of the applicant, and other matters pertinent to the desirability of the risk. The relator, both personally and through his counsel, was notified that such a signed application was essential, in order to bring the question of his reinstatement properly before the executive committee, and that the question of his reinstatement would not be considered' unless the rule in that respect’ was complied with. It is true that he underwent a medical examination, which is also required in addition to. the making of such application, but he still persisted in refusing to sign the application. The refusal of the relator to sign was based upon a recital which the form of application for reinstatement contained, setting forth his failure to pay the annual dues, and that by reason thereof his membership and policy had expired. This .recital iorms part of the printed form used by the company in all cases where application for a reinstatement is made. The ground of his refusal was his unwillingness to admit that his policy and membership had expired, and, while he was willing to undergo a med< ical examination, and to submit other information to the executive committee, in respect to his condition, he persistently declined to place himself in the position of asking for reinstatement. The company, on the other hand, as persistently refused to consider him in any other light than as a delinquent member whose rights had been forfeited, and insisted that if he desired reinstatement he must conform to the rules and regulations of the company in making his application. In this respect I think the respondent was right, It is plain that the company was not bound to entertain an application for reinstatement—a purely voluntary proceeding on the part of the delinquent member—when it was accompanied with the assertion that no reinstatement was necessary, as the membership and rights of the relator were unimpaired. The case is not one in which the company, for any purpose of its own, was seeking action on the part of the relator. The proceeding was intended solely for the benefit of delinquent members, and was entirely inappropriate and inapplicable.to any other condition than one of existing and conceded forfeiture. Finding that the relator was unwilling to recede from the position which he had taken, the secretary of the company, on July 10, 1895, transmitted to him the company’s checks for $10 and $81.95, the sums which had been received and placed to the credit of his policy in the suspense accounts, subject to his order, as above stated, inclosing the same in a letter, in which-it was stated that, as the relator had declined to apply for reinstatement, there was nothing due the association. The relator thereupon returned the checks, and subsequently commenced this proceeding.

It is plain that there is but one question presented for decision upon the above statement of facts: Did the respondent at any, time waive the forfeiture of membership and policy which un-, doubtedly happened when the relator failed to pay his annual; dues which matured on the 29th day of May ? There is no dif^ ficulty in determining the law as to what constitutes a waiver of á1 breach of condition or forfeiture. In the case of Titus v. Insurance Co., 81 N. Y. 410, it is stated (page 419):

“When there has been a breach of a condition contained in an insurance policy, the insurance company may or may not take advantage of such breach, and claim a forfeiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver . follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do or say anything.to make the forfeiture effectual. It may wait until claim is made under the policy, and then, in denial thereof, or in defense of a suit commenced therefor, allege the forfeiture. But it may be asserted broadly that if, in any negotiations or transactions with the in-' sured, after knowledge of the forfeiture, it recognizes the -contin-, ued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trbuble or expense, the forfeiture is, as matter of law, waived ; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel."

The same question was discussed in the case of Armstrong v. Agri. Insurance Co., 130 N. Y. 560; 42 St. Rep. 555, in which many of the cases upon this subject are considered. In Ronald v. Mut. R. F. L. Association, 132 N. Y. 378; 44 St. Rep. 407, the court says (page 383, 132 N. Y., and 44 St. Rep. 407):

“A waiver of the forfeiture of a policy, in the absence of any agreement to that effect, results from negotiations or transactions with the insured, after the knowledge of the forfeiture, by which the insurer recognizes the continued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act or incur some expense or trouble. Titus v. Insurance Co., 81 N. Y. 419. In the absence of an estoppel, knowledge of the facts andan intention to waive must exist; provable, of 3ourse, by the circumstances.”

There must, therefore, be found in this case satisfactory evidence of an intention on the part of the respondent to waive the forfeiture in order to justify the position assumed by the relator. Of course, this must be largely, if not exclusively, a matter of inference from the acts of the respondent. Mere statements as to what the intention was or was not cannot prevail against the necessary,or natural conclusion flowing from its acts. If those acts are consistent only with the theory that the company did not intend to stand upon the forfeiture, it is clear that there has been a waiver, and mere statements that no intention, to waive existed will not be allowed to control. The test, then, which must be adopted in the solution of the question now before us is s Were any of the acts of the respondent, after the forfeiture of the policy had taken place, so inconsistent with the continued existence of the forfeiture as to express in themselves an intention to waive the default, and to recognize the relator as a-member of the association in good standing? I fail to find any such evidence. It will-be remembered that the check which was forwarded to the company for the annual dues was transmitted by Mr. Harris, on behalf of the rélator, with the communication from the company which had been sent to him, and which advised the relator that his .dues remained unpaid, and that his policy had expired. The same letter also stated that, if he desired to reinstate his policy, it might be done in- the manner pointed out on payment of the amount of the dues. IE the case had been one in which there had been an unqualified acceptance of the dues, there would, of course, have been no doubt as to the waiver of the forfeiture. The dues are not debts of members.- As has been said, it is entirely at their election whether they will pay them or not, and the only effect of a failure to pay is the immediate termination of membership and insurance. A general and unqualified acceptance of such dues, therefore, could not possibly be consistent with any other position than that of a waiver of any forfeiture which might have taken place. In the present case, however, we find running through all of the transactions between the respondent and the relator a determination on the part of the former to insist upon the forfeiture as an indisputable fact. The dues when received were entered in a suspense account to the credit of the policy, and were held by the company subject to the relator’s order’. This account was used in the business of respondent to provide for just such cases as the present one, where applications for reinstatement were in contemplation or were being considered. The disposition, then, which was made of these payments, was not peculiar to this case, but followed a settled practice, manifestly adopted to serve the convenience of delinquent members seeking reinstatement, and at the same time to avoid an inference of waiver on the part of the company, which would otherwise be drawn from the unqualified receipt of the money with knowledge of the forfeiture. Furthermore, the payment of the dues and other arrearages is one of the conditions of reinstatement; and the respondent had a right to infer, upon the receipt of the amount of the dues, that the money'was transmitted pursuant to the terms of the letter of June 4th, claiming the default, but stating that a reinstatement of the member could be had on certain conditions, among which was the payment of the amount of the dues. The only reasonable construction, it seems to me, which can be put upon this part of the transaction is that the check for the dues was forwarded to the company in harmony with the letter from the respondent, which was returned with it under the same inclosure, and was a tender of part performance of the conditions of reinstatement, which were so plainly stated in the letter referred to. At no time did-the company recede from the position it had taken at the outset in reference to the status of relator’s membership. When application was made a few days after the receipt of the dues for some change in the beneficiaries under the policy, the relator’s attorney was informed of the forfeiture, and was at the same time furnished by an officer of the association with a blank form of application for reinstatement, to be filled up and signed by the relator. But it is claimed that the notice dated June 1, 1895, some three days after the forfeiture had taken place, notifying him of a mortuary call of $31.95, was such a recognition of continued membership as to be a waiver in itself of any previous forfeiture. In answer to this the respondents claims that in the ordinary course of its business about 100,000 notices are prepared and mailed bimonthly, sometimes on the first of such months and sometimes a few days in advance, and that the notice in question was mailed to the relator on the 31st day of May, 1895, before it was discovered that he had failed to pay his dues, which had matured two days earlier. To guard against inferences prejudicial, to the company which might be drawn from such occurrences as this, it is expressly provided, in the form of call in general use by the company, and which was transmitted to the relator, that “the sending of this notice or acceptance of the above premium shall not be held to waive any forfeiture caused by nonpayment of any-previous sum, when due, under said certificate or policy.” The relator or his agent had this before him at the time he transmitted his check to the company for the amount of the call, and returned it to the company .with his check. This check, it will be remenr bered, was received on the 13th day of June, 1895, and was immediately carried to the suspense account, subject to the order of the relator, who at that very time was con templating, or the company was justified in believing him to be contemplating, an application for his reinstatement, which, if ■ favorably acted upon, would require the payment not only of the dues, but also of this call. The relator could have obtained the amounts which he thus paid at any moment on applying to the respondent therefor. By the rules and regulations of the respondent, of which it must not be forgotten the relator was a member, money paid under the circumstances under which these dues and the call in question were paid was received by the company not as a present payment, but was carried to a suspense account, subject to the order of the member, and was to be finally credited to his policy upon reinstatement, or returned to him if reinstatement was refused. The action of the respondent, then, in regard" to these payments, was entirely in accordance with its established practice in dealing with its delinquent members. It was not intended to be a waiver, nor was the receipt and retention of the money under such, circumstances sufficient to constitute a waiver. While it is true, as a general proposition, that a person cannot effectively disclaim the the legal consequences of his acts, yet a disclaimer of certain legal consequences may be considered for the purpose of determining. the nature of the act itself, and from this point of view the staternent contained in the notices transmitted to the relator, that the payments asked for should not be considered a waiver of forfeiture caused by nonpayment of any previous sum when due is a characterization of-the act which is most material upon the question of waiver when considered in connection with the manner in which the company dealt with its delinquent members.

I also fail to find any other element in the case upon which a waiver could be successfully predicated. I do not consider that the correspondence which passed between the secretary of the company and the attorney for the relator in reference to q change of address, on the policy of the relator is of any value as evidence of waiver, any more than the act of insurance company in furnishing blanks for proofs of loss and giving instructions as to the manner of filing them is in any sense waiver of forfeiture or a bar to a defense that the policy was null and void. Ronald v. Mut. R. F. L. Association, 132 N. Y. 378; 44 St. Rep. 407. It is plan that the respondent association has throughout treated the relator with entire fairness and frankness. He has nobody but himself to blame for the situation in which he is placed. He allowed his policy to lapse, although he had received nearly two months’ previous notice from the company of the day on which his dues must be paid, and was cautioned that a failure to pay them on that day would result in the lapse of his policy. Under these circumstances the oversight on his part or on the part of his agent was inexcusable; and while one may not escape a strong feeling of sympathy with him, in view of the heavy loss which he has sustained, such feeling cannot be allowed to influence the decisions of the court. The respondent is entitled to insist upon the rigor of the contract, and in view of the peculiar nature of the business which it is conducting, and the paramount importance of immediate payment of dues and calls, if cannot be said that its action is at all unreasonable. It was wisely said by Judge Earl, in the case of Attorney General v. North American Life Ins. Co., 82 N. Y. 172, that (page 191):

“There are doubtless some decided cases which hold that such forfeitures should not be enforced; but I think the better rule is to uphold and enforce such contracts, when free from fraud or mistake, just as the parties have made them. The parties entering into such contracts know best the importance of their exact and their literal performance.”

The relator may still apply to the executive committee for reinstatement under the constitution and by-laws of the association, which, as we have seen, give them the power to reinstate a delinquent member at any time within one year for good cause shown, upon satisfactory evidence of good health, and on payment of all delinquent dues and assessments. It is not to be presumed that the executive committee will' not treat the case fairly, or fail to give him the benefit of a deliberate and impartial judgment upon such appeal. If they should fail so to do, the law gives the relator a remedy. He must, however, comply with the rules and regulations of the company in making such application, for it is only in the case of a delinquent member that the respondent is under any obligation to act under the provision of the constitution referred to. ■ ' '

The view which I have taken of the matter necessarily leads -to a denial of the motion, and renders it unnecessary for me to discuss the point raised by the respondent as to the propriety of the remedy invoked by the relator. Whether an action in equity should have been brought (Cohn v. Insurance Co., 50 N. Y. 610), or the remedy by mandamus was appropriate (People ex rel. Deverell v. Musical Mutual Protective Union, 118 N. Y. 101; 27 St. Rep. 963), need not, therefore, be determined.

The motion for a peremptory writ mandamus is denied, with $1-0 costs.


text:
    Carrie Archer Brink, Resp’t, v. Home Insurance Company of New York, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb'y 18, 1896.)

    Venue—Change—Convenience op witnesses.
    The venue of an action will not be changed from an adjoining county to Hew York county for the convenience of witnesses, unless the case is of an exceptional character.
    Appeal from an order denying a motion for a change of venue from Westchester county to New York county. .1!

      The opinion of Mr. Justiee GrAYNOR, at special term, is as follows:
    It is a rule not to change the venue for convenience of witnesses from any of the adjacent counties to Mew York county. The county seat of Westchester county is convenient to Mew York City. These cases are not so exceptional as to cause a departure from the rule. The long distances in the country, which cause change of venue, do not exist hereabouts. It cannot be said to be any grave inconvenience to go a distance which takes only an hour or less. The strong tone of the brief submitted is quite unnecessary! It stands on the alleged right of the defendants, whereas it is not a matter of right. The alleged injustice is imaginary, Motions all denied.
    Richards & Heald, for app’lt; Eugene L. Bushe, for resp’t,
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, for the reasons assigned by the judge at special term.


author: PER CURIAM. WARD, J.

text:
    Rowland T. Milliman, App’lt, v. The Rochester Railway Company, Resp’t.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed March, 1896.)

    Trial—Instruction.
    In an action for injuries, an instruction which, states that where there is a disputed question óf fact, and there is a witness at hand or put upon the stand by one party who knows or may know what-the facts are, and such witness is not c tiled by the person to whom he or she is friendly to swear as to what the facts are, it is a rule that the jury may, if they see fit, assume that the reason why such witness was not asked a question in regard to the matter is because, if he had been asked, he would not have given a favorable answer, is erroneous. '
    Appeal from a judgment in favor of defendant and from an order denying a motion for a new trial.
    John Yan Yoorhis, for app’lt; C. J. Bissell, for resp’t.
   PER CURIAM.

Judgment affirmed,

WARD, J.

(dissenting).—This is an action to recover damages for the alleged negligence of the defendant in running its car against plaintiff’s carriage, while upon its track in Rochester, breaking the carriage, and injuring the plaintiff. A trial was had in January, 1894; and upon the trial plaintiff was sworn as a witness in his own behalf, and testified to the collision and to his injuries; that he was riding in a carriage upon one of the streets of Rochester, with his daughter' Mary and a grandchild, a little girl of two years, when he came near a steam roller in the street that was blowing off, which frightened his horse, so that the plaintiff had great difficulty in managing him; and. while doing so. he got upon the defendant’s track, and was overtaken by the car, his carriage broken, and himself injured, and the horse ran away. He testified that he had no warning; heard no bell rung or any signal from the car behind before it struck him; that his first attention was called to it by screams of people who had noticed the approaching car. Another witness was sworn for the plaintiff as to the accident; and also Mary B. Milliman, the plaintiff’s daughter, who was in the carriage with him, was sworn as a witness for the plaintiff, and testified in effect that she was riding with the plaintiff upon this occasion, with her little niece sitting between plaintiff and herself, and observed that the horse was frightened at the steam roller; that she heard no warning of the approaching car, except that she heard voices screaming from behind ; that she remembered the shock, the striking of the buggy, but remembers nothing more until she was picked up on a crossing near a gutter. She further described the condition of her clothing and her condition when she recovered her senses. She was cross-examined by the defendant’s counsel as to how she was sitting in the buggy, and if she remembered the horse running across the street, and as to some other matters. The defendant gave the testimony of several witnesses as to the circumstances of the accident, tending to show the defendant’s freedom from negligence, and contributory negligence on the part of the plaintiff.

The court, in charging the jury, in referring to the plaintiff’s evidence, charged as follows:

“ In this case the plaintiff has the burden of proof. He alleges that this accident was caused by the negligence of the motorman, and he is bound to satisfy you of that by a fair preponderance of the evidence; and if you have any question about it, if there is any dispute about it, that dispute must be resolved in favor of the plantiff before he can recover. That makes it proper that I should call your attention to one aspect of the evidence, although I do not propose to comment upon the evidence, because it is in so small a compass that it is not necessary. It is a rule of law—or a rule which men who have occasion to pass upon the facts may apply,, it is more accurate to say, perhaps—that where there is a disputed question of fact, and there is a witness at hand or put upon the stand by one party who knows what the facts are, or may know what the facts are, and that witness is not called by the person to whom he or she is friendly to swear as to what the facts are, it is a rule that the persons who pass upon the weight to be given to the testimony may, if they see fit, assume that the reason why the witness was not asked a question in regard to the matter is because, if she had been asked, she would not have given a favorable answer. That is not a rule of law. It is a rule which you may apply in the examination of the evidence, and the jury are not obliged to apply it unless they see fit. It is a rule, I might say, of common sense, because it is an inference which may properly be drawn under certain circumstances. And whether this is a case to draw that inference, and whether you choose to draw it if it is, is a matter entirely for you. But the rule is there for you to do what you choose with it, in case you choose to do anything.”

This was said in reference, as is claimed by the defendant, to the failure of the plaintiff’s counsel to ask the daughter as to certain facts that would tend to corroborate the testimony of the plaintiff still further as to what occurred at the time of the accident. This charge was excepted to by the plaintiff, which brings the question before us whether the charge was proper under the circumstances, and, if not, whether it might have tended to influence the verdict of the jury, which was for"'the defendant.

On failure to produce a witness on the trial of an action by a party seeking to maintain an issue, when it appeared that such witness had knowledge of important facts, and was in the power or under the control of the party maintaining the issue, it has been held under such circumstances that the jury might be left to infer that such failure to produce such witness was a circumstance to be considered in the disposition of the case, and this by reason of the general rule, “Omnia prsesumuntur contra spoliatorein.” His conduct is attributed to a supposed kno vledge that the truth would have operated against him. 1 Greenl. Ev. § 37.

The cases upon that subject which have been cited by the learned counsel relate to the failure to produce the witnesses upon the trial. No case has been brought to our attention where, on the failure of a party producing a witness who has been duly sworn upon the trial to ask certain questions perhaps pertaining to the issue, an inference has been permitted against him in consequence of such omission in the disposition of the case; and, if we affirm this judgment, we must hold that such is the case. It is not perceived upon what principle this contention can rest. It would seem that all that is required of a party producing a witness is to ask him such questions as he desires to do, calling out such facts as he wishes to establish by the witness, and then turn him over to the opposing party for cross-examination. The opposing party cannot complain of his own failure to call forth facts which may have been omitted by his adversary.- Such omission may have been caused by inadvertence of counsel; by his ignorance of what the witness really knew. It may have been caused by a knowledge on the part of the examining counsel of the ignorance of the witness of the fact assumed to be within his knowledge. The claim that the defendant was not obliged to ask the daughter as to the matter claimed to have been omitted, as she was a hostile witness, cannot avail. It is the duty of the counsel to elicit the truth from every witness so far as is material to the case. There was nothing shown in this case to justify the assumption that the witness was hostile to the defendant. The fact that the witness was related to the plaintiff does not justify the inference that she was hostile to the defendant or would suppress the truth or commit perjury. The defendant could not, when the witness was upon the stand, refuse to interrogate her upon a material matter, and then contend that a presumption may be indulged in against the other side by reason of such omission. The law does not go to such an absurd length as that. It has been well held that the omission of a party to call a witness who might have been called by the other party is no ground for a presumption that the testimony of the witness would have been unfavorable. Cramer v. City of Burlington, 49 Iowa, 213. Scoville v. Baldwin, 27 Conn. 316. For the same reason, no presumption can be indulged against either party when the opportunity to examine a witness who' is produced and sworn is open to both parties.

In the case at bar the witness in question found herself in a wagon with a horse, in effect, running away, a little child to care for, and, in the fright and excitement of the occasion, remembered nothing inore than what she testified to; and there is no ground for assuming that she did know more than what her attention was called to by the examining counsel in this case. Therefore, when the court assumes to leave the question to the jury in a closely contested case, where the evidence is conflicting, whether an inference was not created against the plaintiff by the failure of his counsel to ask the daughter certain questions that the defendant assumed that he ought to have asked, and which the defendant failed to ask, it was error that might have influenced the jury against the plaintiff. At-least we cannot see that it did not do so; and, as it might have had that effect, the j udgment should be reversed.

Flynn v. Railroad Co., 50 N. Y. Supr. Ct. 375, was an action against contractors, growing out of the construction of a building, for injuries caused by an accident. The plaintiff asked the trial court to charge that if the defendants have failed to produce witnesses who were in their employ, and were present at the time of the accident, that fact should be taken into consideration by the jury in coming to a conclusion. The court charged, in effect, that they might under certain conditions do so. This was held to be error, for which the judgment was reversed. In Fitzpatrick v. Woodruff, 47 N. Y. Supr. Ct. 436, the court left it to the jury to-say whether the failure of a party to produce a witness to the transaction, and who was sworn on another trial, could create an inference against him. This was held to be error, and the judgment of the trial court reversed. In Lewis v. Bache, 28 St. Rep. 405, the general term of the New York common pleas held, in an action attacking a general assignment by partners as void for fraud, where promissory notes held by their wives were charged as firm liabilities, and their wives were not called as witnesses to show the bona fides of the assignments, that no.inference against the validity of the assignment could be drawn from that fact. In Bleecker v. Johnston, 69 N. Y. 309, in an action against copartners upon an alleged contract of employment, plaintiff and one of the defendants were the only witnesses. Their testimony was directly in conflict. The trial judge charged, in substance, that it was the duty of the defendants to produce the other defendants as a witness,,and, not having done so, the jury might infer that his evidence would have been prejudicial to the defendants. This was held to be error. As before stated, these cases all relate to the failure to produce witnesses, and, in so far as they tend to establish a rule as to when the witness must be produced to avoid the inference which the court or jury may draw from the failure to produce the witness, may aid us in the consideration of the question before us. Had the plaintiff failed to produce his daughter upon this trial, and it had appeared that she was present and in condition to have observed what occurred, and was in reach of subpoena, and could have been produced by the plaintiff, the question, which the court had in mind in his charge to the jury in this case would have been before us, and the cases cited strictly applicable. But, as we have seen, this is not such a case, and we have considered it upon principle, and we hold that no inference against the plaintiff, under the circumstances, could be reasonably indulged in by the jury, and it was error to charge them to that effect.

These views lead to the conclusion that the judgment should be reversed, and a new trial granted, with costs to abide the event.