text:
    Fletcher W. Camp, Adm’r, App’lt, v. James W. Smith et al, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    ■Limitation—Payment—Application of.
    Where it appears that there were other existing and valid obligations between the parties, a payment made generally "will not be assumed to have hem made upon any particular claim so that such claim will be taken out of the bar of the s;atute of limitations.
    Appeal from judgment entered upon verdict directed by the court.

      W. Mitchell, for app’lt; E. H. Pomeroy, for resp’ts.
   Per Curiam.

It does not appear from the record in this case that any evidence tending to show that the defendants had made any payments on account of the notes involved in this action was offered by the plaintiff and excluded by the court.

All of the evidence offered was admitted except the testimony as to the amount of interest upon certain payments which the plaintiff claimed should be applied by the court to the notes in suit. We have examined the testimony and cannot find any evidence which would justify the finding that the payments in question were payments on account of the notes in suit. The most that can be said is that they were payments made generally by the defendants to the plaintiff. But as it appears that at the time the payments were made there were other existing and valid obligations of the defendants to the plaintiff’s testator, the court cannot assume that payments made generally were made upon any particular claim so that that claim will be taken out of the bar of the statute of limitations. We think it clear that the notes in suit were barred by the statute, and that the direction of a verdict in favor of the defendants was right and should be affirmed, with costs.

Van Brunt, P. J. and Ingraham, J., concur.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Charles B. Rowley, Resp’t, v. The National Bank of Deposit, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Pleading—Action for failure to pat check.
    A complaint in an action against a bank by a depositor for failure to pay a check drawn by him to the order of a third person, which fails to state that the check was endorsed by the payee, fails to state facts sufficient to constitute a cause of action.
    Appeal from interlocutory judgment overruling demurrer.

      B. W. Gilbert, for app’lt; H. F. Andrews, for resp’t
   Ingraham, J.

The complaint alleges that the check described in the complaint was deposited in the National Park Bank of the city of New York to the credit of B. B. Stimpson on the 4th of August, 1891; that it was presented to the defendant by such National Park Bank for payment on that or the following day, and that at the time when the same was so presented for payment, the plaintiff had on deposit with said defendant an amount largely in excess of the amount of such check, and that when said check was presented for payment the defendant refused payment thereof although well knowing that it was indebted to plaintiff in an amount in excess thereof, and that said defendant returned said check to ihe said National Park Bank after having marked or caused to be marked upon the face thereof the characters “ N. Gr.” in blue pencil, and that such letters or characters when written conspicuously upon the face thereof by bankers, etc., mean “ not good,” and that the drawer thereof has not a sufficient sum on deposit to warrant the payment thereof There is no allegation in this complaint that the check was endorsed by the payee, or that the defendant was bound to pay the same; and the court, cannot assume that the check was so endorsed. TJntil it was endorsed the defendant was not bound to pay it, and before there can be any cause of action against the defendant because of its refusal to pay the check the plaintiff must allege that the defendant was under a legal obligation to pay the same.

There is no allegation in the complaint that the check was presented for certification ; nor do we know of any rule of law that requires the bank to certify its customers’ checks, or makes it liable for a refusal to certify.

Without passing upon the question as to the liability of the defendant for damages for failing to pay a customer’s check, we think for the reasons above stated that the demurrer should have been sustained.

The judgment should, therefore, be reversed and the demurrer sustained, with costs, and with leave to the respondent to amend within twenty days upon payment of costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Per Curiam.

text:
    Rudolph A. Loewenthal, App’lt, v. The Philadelphia Rubber Works, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Pleading—Motion to make definite.
    Where the defense set up is sufficient so far as its general allegations are concerned, it is not the province of the court, on motion to make the answer definite and certain, to compel the allegation of the specific-facts which lead to the general conclusions alleged.

      {Jackman v. Lord, 56 Hun, 193; 30 St. Rep., 507, followed.)
    Appeal from order denying motion to make answer more definite and certain. .

      G. C. Coffin, for app’lt; IIW. Jessup, for resp’t.'
   Per Curiam.

It seems to us that the rule laid down in the case of Jackman v. Lord, 56 Hun, 192; 30 St. Rep., 507, disposes of this appeal.

There is no question but what the defense set up in the answer, as far as its general allegations are concerned, is sufficient, and, therefore, it is not the province of the court upon a motion to make the pleading more definite and certain to compel the allegatian of the specific facts which lead to the general conclusions alleged in the pleadings. This office is served by a bill of particulars, by which a party in a proper case is apprised of the particular facts which his opponent expects to prove, and being so apprised cannot be surprised at the trial.

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

Van Brunt, P. J., O'Brien and Ingraham, JJ., concur.


text:
    John Turney, Resp’t, v. Henry Van Gelder et al., App’lts.

      (Supreme Court, General Term,, First Department,

      Filed March 31, 1892.)

    Assignment for creditors—Action to set aside—Estoppel.
    Plaintiff filed and proved his claim before an assignee for creditors, and also presented his claim before the referee appointed in a proceeding to close out the trust, in which action, upon notice to plaintiff, the assignee was discharged. Held, that plaintiff was bound by the judgment in that action as much as if he had originally been a party, and could not thereafter maintain an action to set aside the assignment on the ground of fraud of the assignors, in the absence of proof of fraud in obtaining said judgment.
    Appeal from judgment setting aside assignment in an action tried at special term.

      JS. II. Benn, for app’lts; A. Blumenstiel, for resp’t.
   Per Curiam.

It appeared upon the trial of this cause that the defendants Van Gelder were doing business under the firm name of Van Gelder Bros., and in May, 1887, made a general assignment, with preferences, the first one being to the assignee himself. The assignee complied with all the requirements of the-statute, and when he advertised for claims the plaintiff in this action filed and proved his claim. After that an action was brought by a creditor on behalf of himself and all other creditors to close out the trust, in which action a referee was appointed to state the account of the assignee and for distribution of the proceeds of the assigned estate.

On the hearing before the referee the plaintiff appeared and made his claim; and the referee made his report that the assignee had faithfully and properly discharged his duties, and reporting as to distribution. Upon due notice to the plaintiff and the other creditors who had presented claims, a motion was made to confirm the referee’s report and for final judgment, which motion was granted, and judgment was entered directing distribution and adjudging that on complying with directions therein contained the assignee should be discharged. The assignee did comply therewith, and thereafter, by order of the court, the assignee was discharged and his sureties released. The plaintiff’s claim not having been paid, subsequent to the entry of this judgment he brought this action to set aside the assignment upon the ground of the fraud of the -assignors, he claiming to have discovered the fraud subsequent to the entry of the judgment in the action in which the accounting was had and the assignee discharged, but no allegation of fraud in obtaining the judgment in the action for the accounting is set forth in the complaint. Issues having been joined upon this complaint, and the case having been tried, the court gave judgment setting aside the assignment, and directing that the value of all the assigned property be accounted for again, and paid over to the plaintiff, and appointed a receiver and referee to take an account. From this judgment, this appeal is taken.

It seems to us clear that the court had no authority whatever to render the judgment complained of. By filing his claim in the action for an accounting he appeared in that action, became a party thereto, and was necessarily bound by the judgment. He was entitled to notice of all subsequent proceedings in that action; .and it appears from the judgment that was entered that he had such notice. Therefore, being a party to the action, having intervened for the purpose of getting the benefits of that action, whatever they might be, he was as much bound by the judgment as though he had originally been a party.

A judgment can be impeached only upon proof that' that judgment was obtained by fraud; and the fact that a party affected' by a judgment has discovered something which, if he had known it previously, he might have set up as a defense in the action in which the judgment was rendered, is no ground either for setting aside the judment, or for granting such relief as he would have been entitled to had such judgment never been rendered.

In the case at bar, the plaintiff had been heard and there was an adjudication which was binding upon him directing the distribution of the assets, and until he was relieved by an application in that action from the effect of the judgment, it was binding upon him in the absence of fraud in the procuring of that judgment

We think, therefore, that the judgment was erroneous and that the same should be reversed and a new trial ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Application of The Mayor, etc., of New York to Acquire Title to Property between Forty-first and Forty-second Sts. and Twelfth and Thirteenth Avenues.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Eminent domain—Taking wharf property.
    The taking of wharf property under Laws of 1870, chap. 388, as amended by Laws of 1871, chap. 574, authorizing the acquisition of wharf property in the city of New York for the improvement of the water front, and to provide a uniform system of wharves and piers, is a taking of private property for public use within the meaning of the constitution, and such private wharf property as may be necessary to carry out the city’s plan may be taken by it under such act.
    S. Same—Agreement with wharf owners.
    Under such act, which provides that the department of docks might agree with the owners of any such property to be taken as to the price, and certify the same to the commissioners of the sinking fund for their approval, and that, if no price should be agreed upon, they might institute legal p-oceedings to acquire the same, the dock department, and not the commissioners of the sinking fund, is the proper board to make the agree-meat as to price, the act merely requiring the subsequent approval by the latter body.
    3. Same.
    Under such act an oiler was made to purchase wharf property from a corporation at a certain price, and an answer requested within ten days; the corporation did not respond. Held, that its failure so to do was not excused by the fact that there had not been a meeting of its directors within the ten days.
    Appeal from order appointing commissioners.

      Anderson & Howland (Henry H. Anderson, of counsel), for app’lt; William H. Clark (M J. Freedman and Charles Blandy, of counsel), for resp't.
   Van Brunt, P. J.

Prior to 1837, the People of the state of New York had granted to the mayor, aldermen and commonalty of the city of New York land under water extending from low water mark 400 feet into the North river from the East river to Spuyten Duyvil creek, a pre-emptive right being given to proprietors of the lands adjacent to grants to be made by said mayor, etc., of any of said lands under water. In 1837 an avenue called Thirteenth avenue was laid out on the map of the city of New York, and declared by the legislature to be the permanent, exterior street or avenue along the easterly shore of the Hudson river between the southerly line of Hammond street and the. northerly line of One Hundred and Thirty-fifth street, and the several streets of the city as laid out on the map made by the commissioners under the act of 1807 were continued and extended westerly on said map to said Thirteenth avenue.

In 1853 a water grant was made by the city of New York to-one Appleby of the water lot, vacant ground and soil to be made land and gained out of the Hudson river between the centre line of Forty-first street on the south, the centre line of Forty-second street on the north, high water mark on the east and the westerly line of Thirteenth avenue on the west, reserving therefrom as public streets such parts of Forty-first street, Twelfth and Thirteenth avenues, as were then laid out as public streets, but giving nevertheless to the grantee and his assigns the wharfage and cranage and other emoluments to arise from the exterior line of Thirteenth avenue. By certain mesne conveyances this property with the rights conveyed by said grant became the property of the Metropolitan Gas Light Co.; and- in 1862 the mayor, etc., passed an ordinance authorizing that company to erect a pier on the North river between Forty-first and Forty-second streets, opposite their gas works, the centre thereof being on the centreline of the centre of the block between Forty-first and Forty-sec- and streets. This pier was built by the gas company and remained its property until the merger of that corporation in the Consolidated Gas Company, which became vested with the title to the property in question.

This pier was a public pier open to the use of commerce, and occupied and used constantly by vessels bringing coal which was brought and discharged there, principally for the supply of the necessities of the appellant corporation in its work of manufacturing gas with which to supply the cit)'.

By chapter 383 of the Laws of 1870 as amended by chapter 574 of the Laws of 1871, the department of docks as a part of the corporate organization of the city of New York was given charge and control, subject in certain particulars to the commissioners of the sinking fund, of the wharf property belonging to said city, including all the wharves, piers, bulkheads and structures thereon and waters adjacent thereto and all the slips, basins, docks, water front, land under water and structures thereon. Sections 33 and 34 of the act required the department of docks to adopt a plan or plans for the improvement of the water front of the city, and to send the same to the commissioners of the sinking fund for adoption or rejection ; which plan was to be the sole plan according to which any wharf, pier, bulkhead or structure should thereafter be laid out or constructed within the territory or district embraced in it, and specified upon such plan.

By sub. 4 of § 99 of said amended act,* the said department was authorized to acquire, in the name and for the benefit of said city, apy and all wharf- property in said city to which the corporation of the city of New York then had no right or title, and any rights, terms, easements and privileges pertaining to any wharf property in said city, and not owned by said corporation, and the said boai'd might acquire the same either by purchase or by process of law as in said act provided.

The subdivision further provided that said board might agree with the owners of any such property upon the price for the same and certify such agreement to the commissioners of the sinking fund, and if said commissioners approve of such agreement, the said board should take from such owners at such price the necessary conveyances for vesting said property in the mayor, etc., forever. The subdivision further provides that if said board should -deem it proper that said corporation should acquire possession of said wharf property for which no price can be agreed upon by the owners thereof and the said boar¿l, that said board may direct the counsel to the corporation to take legal proceedings to acquire the same for said city, etc. • '

Subdivision 5 provides that when the plan or plans of the dock department have been adopted by the commissioners of the sinking-fund, the said department shall proceed according to said plan to lay out, establish and construct wharves, piers, bulkheads, basins, docks or slips in the territory or district embraced in said plan or plans and in, upon or about the property owned by said ma/or, -etci, without interfering with the property or rights of any other person except so far as might be necessary to insure the safety and stability of the wharves, piers, bulkheads, basins or slips so to be constructed.

And sub. 6 provided that when any of the wharves, etc., constructed under the provisions of the act shall be opened to the public use, said department of docks shall regulate the charges for wharfage and dockage of all vessels admitted thereto, and said board might appropriate any of said wharves, etc., to the sole use of special kinds of commerce, and might in the name of the city lease any •or all of such property for a term not exceeding ten years, etc.

The department of docks duly adopted a plan for the improvement of the water front, which was submitted to the commissioners of the sinking fund and approved by them.

It is proposed by the department, as. shown by the plan which forms part of this proceeding, to widen Twelfth Avenue so as to make it a street 250 feet wide, and to build a stone bulkhead along the exterior line of the avenue widened, this exterior line being coincident with the dock commissioners’ bulkhead lino And it is claimed by the appellant that for the purpose of building that bulkhead they propose to take a piece of land and the dock of the appellants, and to extinguish the right of the appellant to the wharfage to arise from the exterior line of the Thirteenth Avenue and that they have no right to do this because Twelfth Avenue ■can be widened and a new bulkhead constructed without impairing or removing or in any way interfering with that portion of the pier of the appellant which lies westerly of the line of solid filling or the present bulkhead line.

It is also urged that the exterior line of the city has been changed several times within a few years ; and that it is still subject to change, and that if the line of solid filling should be ■extended to land under water in'front of the proposed bulkhead which is now proposed to be constructed by the dock department, it would be of immense value, and under such circumstances not "being needed for the improvement of the water front at the present time ought to remain in the hands of the present owners for the purpose of deriving any such benefit or profit as would ■come to them were such plan adopted by the legislature while they were the owners thereof.

In August, 1891, at a meeting of the dock department a resolution was passed stating that they desired to acquire the bulkhead and wharf property, and all water rights therewith connected, between West Forty-first and Forty-second streets; and that as it appeared that the appellant was the owner of the same it was resolved that the board offer to purchase the above described premises and pay a certain sum therefor, subject to the approval •of the commissioners of the sinking fundas provided by law; and that a copy of the premable and resolution be served upon the appellant, and that it be requested within ten days to answer whether it would sell the rights for the price offered. This premable and resolutions were received by the appellant on the 1st of September and on the 17th of September, no answer having been made thereto, the counsel to the corporation was directed to take this proceeding.

A motion for the appointment of commissioners having been made, the appellant appeared and answered, setting up the foregoing facts and alleging that the board of directors of the company was the only body having authority to buy or sell real estate, and no meeting of said board was held during the ten days allowed for action bv the terms of the resolution of, the dock department, nor was any compromise or attempt toward agreement ever had between them and the dock department in respect to the sale or purchase of the property described in the petition. The motion to appoint commissioners having been granted, and the commissioners appointed, from such order this appeal is taken.

Yarious grounds are urged upon this argument for the purpose of showing that the court was without jurisdiction to appoint the commissioners in this proceeding; the first of which is that the legislature in attempting to confer authority upon the dock department has gone beyond the limits fixed by the constitution. And it is urged that it is evident that it was not intended to acquire all the property upon that water front, for the commissioners are prohibited from interfering with the property or rights of any other person except so far as may be necessary to insure the safety or stability of the wharves, piers, bulkheads, basins or slips so to-be constructed. And it is urged that the act grants to the city only such land under water as may be used and taken for the construction of wharves, docks, etc.; and that as all this property is now devoted to public use, the proposed taking is not the taking of private property for public use, but is simply taking the title from the owners of such wharves, and placing the jurisdiction of the government of the same in the dock department, and placing the emoluments in the'city treasury instead of the pockets of the individuals who own the same property by virtue of the grants heretofore made by the state authorities or by the mayor, etc., under a power delegated by the state, authorizing the construction of wharves, and vesting the title to such wharves in private individuals subject to public use, and that if the property is taken its new use will be no more public than its present one, the only difference being the personality of the land alone. And our attention is called to the Matter of the Eureka Basin Warehouse & M. Co., 96 N. Y., 42.

But we think that the principles laid down in the case cited have no application to the case at bar. In the case cited there was an attempt to take property for private use and to vest the title of the same in a private corporation, and the power to do so-was expressly denied by the court of appeals because they could not regard such a project as a public use, or use which justified the delegation to the company of the right of eminent domain,, and that the enterprise was substantially a private one, and the pretense that it was for public use was merely colorable and illusory.

In the case at bar, however, an entirely different state of things is presented. The corporation of the city of Rew York is a public corporation performing public duties ; and by the legislation to which reference has been had it was intended- to change the whole dock system of the harbor of Rew York. Instead of having divers ana various private rights conflicting with the true interests of the commerce of the city, the plan was adopted of a uniform system under the control of the city. As it was stated pi Kingsland v. Mayor, 110 N. Y., 578; 18 St. Rep., 701: The ¡aw provided for a plan which should girdle the city with new wharves and piers belonging wholly to the municipality and ending all private ownerships along the water front. The wharves of private owners were to be purchased by agreement or taken in the ordinary manner by proceedings under the right of eminent domain. Those rights thus to be obtained were described in the act as ‘ any rights, terms, easements and privileges pertaining to any wharf property in said city and not owned by said corporation.’ Whatever could be held against the public was to be bought or taken, but what could not was already in their ownership or control. The act vested in the department of docks authority over the whole system, and enacted that from the time of the adoption of said plan no wharf, pier, bulkhead, basin, dock, slip, or any wharf, structure or superstructure shall be laid out, built, or rebuilt, within such territory or district except in accordance with such plan.”

In this decision the right of the corporation to acquire the title of all property in order to carry out this plan as described by them is expressly recognized. And, therefore, the only question which may be presented is whether the property which it is proposed to take is necessary for the purpose of carrying out that plan.

It is urged by the appellant that the petition seeks to acquire more property than is justified by the action of the dock department ; and more than is required for the purpose of carrying out this plan. This map or plan shows the location of the bulkhead; it shows that it is proposed to build piers at the foot of Forty-first and Forty-second streets; and it shows that it is a part and parcel of the plan that the space between these piers should be a basin or slip, as the department was expressly prohibited by law from the building of piers without intervening water spaces of at least 100 feet. It shows therefore that the lands under water described in the petition are absolutely necessary for the carrying out of the map or plan which was adopted by the dock department in reference to the premises in question; basins and slips being as much a part of the plan as the erection and maintenance of the piers themselves, and the authority in reference to the acquisition of property for construction and maintenance in the one case is just as explicit as in the other.

It is further urged that nothing appears in the map showing the-necessity for the removal of the appellant’s pier, or the acquisition of the land under water between the new bulkhead line and Thirteenth avenue, or the right to take wharfage from Thirteenth avenue when built; and that therefore the proceeding was unauthorized.

The objection seems to have been answered by what has heretofore been said. The plan shows the necessity of the acquisition .in order that that plan should be carried out, and that it could not be carried out without the removal of the appellants’ pier. This seems to establish the necessity of acquisition which conferred authority upon the dock department to acquire.

It is further urged that as a condition precedent of any authority _ior the commencement of these proceedings, it must appear that no price can be agreed upon between the owners and the department of docks. And the claim is made that no offer has ever, been made for this property ; that it was only a provisional offer, and that nobody could be called upon to accept an offer conditional upon the approval of the commissioners of the sinking fund, and that it was necessary that the commissioners of the sinking fund should assent to the offer in advance, so that an agreement would have been reached by the acceptance upon the part of the appellant.

In answer to this objection it seems sufficient to say that the offer made by the dock department was all that the statute authorized them to make. The provision of the statute is that said department may agree with the owners of any such property, etc., upon a price for the same and shall certify such agreement to the commissioners of the sinking fund, and if said commissioners approve of such agreement, they may take from the owners the necessary conveyances.

Therefore the commissioners of the sinking fund have no power to approve in advance of an offer to be made by the department. Neither have the dock department the right to make an absolute offer, but it must be subject to the approval of the commissioners of the sinking fund. This offer they made. Of this offer no notice was taken. The claim that the board of directors of the appellant did not meet is no answer; because if such an excuse might prevail, then if an owner, being a corporation, did not desire its land to be taken, it might not convene its board of directors at all, and thus the rig’ht be defeated. There is no pretence that the appellant would have accepted the offer if the board of directors had met. Consequently there seems to be no ground for the last objection mentioned.

We see no reason, therefore, for interfering with the order of the court below and think that ample authority was conferred for the making of the same and that it should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.


author: Patterson, J.

text:
    Gerard Beekman et al., Trustees, Pl’ffs, v. Abraham Van Dolsen. Def’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Landlord and tenant—Liability for bent.
    The fact that a non-resident leased certain property so as to proceed in the federal court to restrain threatened injuries to the property by municipal authorities, will not relieve the lessee from his covenant to pay rent where it appears that he intended to make himself liable.
    2. Same—Lessee’s liability for destruction of property.
    Certain dock property was leased to defendant, who covenanted to surrender the same at the expiration of his term in good condition, but it was partially destroyed by the municipal authorities, although defendant promptly invoked the aid of the courts to prevent such injury. Held, that defendant was not liable for the partial destruction.
    Exceptions directed to be heard, in the first instance, at general term, a verdict having been directed for plaintiff for. $11,186.82, in an action to recover various sums of money on four separate causes of action set forth in the complaint

      Wm. Mitchell, for pl’ff; Carlisle Norwood, for def’t.
   Patterson, J.

This cause is before us on exceptions ordered to be heard in the first instance at the general term. There are four causes of action set forth in the complaint. At the trial the third was virtually withdrawn from consideration, but as to the others a verdict was directed in favor of the plaintiff and the amount of the verdict was arrived at after deducting a counterclaim admitted to be properly chargeable against the plaintiffs.

The first cause of action was for rent accrued under a lease. As we look at the record, it is clear the defendant was liable for that rent His covenant is plain. While it is true that two other instruments were executed contemporaneously (the difference of a day in their respective dates is not material, as it is perfectly clear they formed part of one transaction) with the lease, and we may consider them together, it is apparent that the defendant not only covenanted in form, but that he intended to be liable for the rent of the dock property, and that he understood and knew that he was to be a principal and not an agent. Whatever caused his introduction to the matter, whether it was to find in him a plaintiff who could bring a suit in the United States circuit court or any other reason, when he did make his covenant he became bound by it and was directly liable to the lessors for the performance .of all the terms and requirements of the lease incumbent upon the lessee, except so far as they may have been modified by the provisions of the other instruments ; but nothing contained in those other instruments relieved him from the payment of rent

The principal question involved in the discussion before us arises out of the second cause of action set forth in the complaint The facts, so far as they are material relating to it, may be briefly stated. The premises in question, consisting of certain dock property on the East river front of the city of New York, between Forty-ninth and Fifty-first streets, were leased on the first day of December, 1880, by the plaintiffs, as trustees of the estate of James W. Beekman, deceased, to the defendant for a term of years, and that term was to and did begin about twenty days before the date of the lease. One of its provisions was that the defendant, “at the expiration of the said term, will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted, without demanding compensation for any improvements on said premises made by said party of the second part.’’ From the beginning of the term the premises were in the actual possession of third persons, who should, for all the purposes of this case, be considered as under-tenants of the defendant, and that is the most favorable aspect in which they can be regarded relatively to the plaintiffs. While the defendant was thus in possession "of the locus in quo by his sub-tenants’ occupancy, very serious damage was inflicted upon the property by the dock de: partment of the city of New York. It consisted of the partial destruction of a retaining wall, bulkhead and dock. This act of aggression by the dock department followed very closely upon the execution of the lease, and the testimony before us leaves no doubt whatever that the intention of the commissioners of the dock department to commit what is called the waste to these premises was well known to the plaintiffs before the lease to the defendant was made, and it is proven beyond the possibility of controversy that immediately the lease was executed and delivered the defendant .brought a suit in equity in the United States circuit court to restrain the action of the dock department, and that Mr. Justice Blatchford issued a temporary injunction restraining the commissioners from acting.

The theory upon which this second cause of action proceeds is, that the demised premises being in the possession of the defendant and he having covenanted to surrender them at the expiration of the term in as good condition as when he took possession, reasonable use and wear and tear and damages by the elements excepted, he is liable for the destruction of or detriment to the premises before alluded to, whether committed by himself or by others. In other words it is sought to hold him liable for permissive or negligent waste, and it is claimed by the plaintiffs’ counsel that adjudications of courts of authority in this state sustain the contention now made. We must consider the whole case on the terms of the lease between the plaintiffs and the defendant. There is no covenant in that lease that the defendant shall' make repairs and the law will not imply one. It is not at all clear that a tenant for years is liable for permissive waste under any view of the law, although it seems to have been assumed by the courts of this state that such is the case, Robinson v. Wheeler, 25 N. Y., 252; Austin v. Hudson R. R. R. Co., id., 334, but it has long been a contested question in the English courts, as is shown by the cases cited by Mr. Yool in his essay on Waste (p. 10).

But we will assume that an action on the case against a tenant for years for permissive waste may be brought in this state with all the results that would ñow therefrom, and yet we would not be justified in deciding that such an action may be maintained upon the facts of this present action. Waste, in its simplest definition, is whatever does a lasting damage to the freehold or inheritance. It is either voluntary or permissive, and the distinction is so clear that authorities need not be cited. Permissive waste implies negligence, which may consist either of acquiescence or assent in the acts of strangers or failure to prevent such acts or to do that which is incumbent upon the party in possession as matter of good husbandry. But the very essence of liability for permissive waste must be negligence. In 1 Cruise’s Digest (title 3, chap. 2, p. 129), it is said that permissive waste is a matter of omission only and (at page 146) where the party in possession suffers a stranger to commit the injurious act he shall be charged with it, for it is presumed in law he may withstand it and the law gives to every man his proper action, the lessor against the lessee and the latter his action against the trespasser who committed the waste. This was not so at common law, but was derived from the provisions of the Statutes of Marlbridge, 52 Hen. Ill, ch. 24, and Gloucester, 6 Edw. I, ch. 5.

Bat to constitute this particular kind of waste there must have been neglect, omission, sufferance or permission of the tenant. The presumption referred to is not conclusive. It may be rebutted by proof. The most ordinary kind of permissive waste is suffering buildings to fall into decay from neglect If the defendant in an action brought under such circumstances should prove that he exercised all diligence and fully discharged his duty to his landlord he would be relieved from liability. It has recently been held in this state that what constitutes waste is a question of fact for the jury, Ey saman v. Small, 40 St Rep., 30, and it seems to be assumed there that all that was required from the party in possession was to be diligent to prevent dilapidation of the premises. That appears to us to be the true measure of duty in cases of this kind. Nothing of affirmative wrong is alleged against the defendant. He committed no act of waste, nor did he suffer any to be done by want of diligence. On the contrary he interposed to prevent it, and did all that the most careful and prudent man could have done under the circumstances to prevent damage being done to the property. A reference to a few dates and facts will demonstrate this. The lease in question was executed on the 1st day of December, 1880. The term was for two years from the eleventh day of the preceding November. Long prior' to that -date proceedings had been taken by the department of docks of the city of New York, under a claim of legislative authority to do so, to change the water front of the East river, including the premises in question. They were pending when this lease was made, and resulted in a contract on the 4th December, 1880, between the commissioners and one Kinsley, whereby the change referred to was to be operated. The commissioners undertook to execute the change alluded to and then the situation was that the •tenant in possession was bound to be diligent in resisting the contemplated encroachment on the demised premises That is exactly what he did. On the 18th day of December, 1880, he applied to Judge Blatchford of the United States circuit court and obtained an ad interim injunction against the city of New York and the members of the board of dock commissioners. What more could he have done ? He invoked the aid of the court to prevent the wrong, and that was all that could be required of him.

Mr. Gibbons in his treatise on Dilapidations says, on the authority of Coke, “it may be inferred that the tenant is liable only for such acts of waste by a stranger as do not exceed a civil trespass, and which he might have reasonably resisted.” If he has-done all he could do to resist the acts of a department of a municipal government, acting under actual or colorable authority of law, he has striven to protect the property, and has neither permitted the trespass nor negligently suffered it, and as the recourse against him would only be in an action of trespass on the case, and the gravamen of that action being either permission or negligence as applied to this- case, the plaintiff could not recover. The defendant was not in fault. There is not a case to be found in this state when the defendant was held liable for permissive or negligent waste when he resorted to all proper and lawful means to prevent a stranger or intruder from doing damage to the reversion, and we certainly will not extend the rule of liability in a case of this kind.

The learned judge in the court below directed the jury to find a general verdict for the plaintiff for $11,186.82, which was the result of a diminution of $12,586.82 less $1,400 on a counterclaim. As this balance was made up, we think the direction was-erroneous, and that the exceptions should be sustained and a new trial ordered, with costs to abide the event

Van Brunt, P. J., concurs in this opinion so far as it relates to liability for wraste, and in result arrived at.

O’Brien, J., concurs.


author: O’Brien, J.

text:
    Ludwig Baumann, Resp’t, v. Elizabeth Moseley, Adm’rx, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Decedents’ estates—Review on appeal.
    When a disputed claim against the estate of a deceased person is referred pursuant to the statute, to preserve the right to review rulings on the admission or rejection of evidence, or as to whether the evidence sustained the findings of fact, the aggrieved party must move at special term upon a case and exceptions to set aside the report or for a new trial or must appear and oppose its confirmati.m and take the proper exceptions.
    2. New trial—Code Crv. Pro. § 1002, not applicable to special proceedings.
    Section 1002 of the Code, providing that a motion for a new trial cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment, refers entirely to motions in actions and has no application to special proceedings, m which the rule is that the motion must he made within a reasonable time.
    3. Contract—Rescission—Report of referee.
    A furniture dealer contracted to furnish a flat for a person who died before all the furniture was delivered ; the dealer then took possession of some of the property, claiming that the title did not pass by delivery; and at the same time claiming before the referee appointed to determine his disputed claim for damages for lost property, that the title to other property which he could not find did so pass. Meld, that the referee’s report allowing such claim should be rejected as inconsistent.
    4. Same—Breach—Remedies.
    The rule in law, that upon the failure of a purchaser to perform a contract for the sale of personal property, the vendor may hold the property for the purchaser and recover the entire purchase money, or he may sell it and recover the difference between the contract price and that realized upon the sale, or he may retain the pr- -perty as his own and recover the difference between the contract price and the market price, relates only to the remedy of the vendor against a vendee who refuses to perform the contract.
    Appeal from order denying defendant’s motion to set aside the referee’s report herein, and for a new trial of the proceeding.

      H. L. Brandt, for app’lt; Geo. Hahn, for resp’t
   O’Brien, J.

This was a special proceeding upon a disputed claim against the estate of Adamson, deceased, which was referred pursuant to the statute and tried before a referee. The latter reported in favor of the plaintiff as to a certain portion of the claim presented, which report though opposed by the defendant was confirmed, and judgment entered thqreon on March 6, 1891. From this judgment and the order confirming the referee’s report the defendant appealed to the general term of this court. Thereafter, concluding that the better practice required that a motion should be made at special term upon a case and exceptions to set. aside the report and for a new .trial, the defendant made such motion on December 7, 1891, which was denied and from such order of denial this appeal is taken.

As the question of practice thus presented is an important one,, we will at the outset consider the contention made by the respondent that the procedure adopted here of appealing from the order denying a motion for a new trial is not the correct practice j and even though it be so considered, that the motion upon the case and exceptions was made too late, not having been made within thirty days, within which time the right to appeal from the judgment would have expired; and that, therefore, upon this ground alone, apart from the merits, the appeal should be dismissed.

As to the proper practice considerable confusion exists, and it is not our purpose to endeavor to reconcile the decisions which have been made relative thereto. But it becomes our duty rather after an examination to adopt the rules for which the stronger reasons and authorities can be found.

In Eighmie v. Strong, 49 Hun, 18; 17 St. Rep., 216, it is said : “ It is .the customary and usual practice for the prevailing party to move at, special term for a confirmation of the report. The motion being based upon the report, the only questions brought up for review are the regularity of the proceedings and whether the conclusions of law are sustained by the findings of fact appearing- in the report. The rulings made upon the hearing in the admission and rejection of evidence, and questions as to' whether the evidence sustains and justifies the findings of fact, can only be brought up upon a case containing exceptions. It is. the usual and customary practice for the defeated party to move upon a case containing exceptions for a new trial at the same time that the motion is made for a confirmation of the referee’s report so as to have all the questions determined in the one motion, and this, doubtless, is the better practice. But we think the motion for new trial upon a case and exceptions may be made after the referee’s report has been confirmed. Such has been the approved practice of our court, and we see no reason why it should be changed.”

This view as to the proper practice is supported by numerous- and well considered authorities, and inasmuch-as we approve of the practice as laid down in Eighmie v. Strong, it is unnecessary for us to discuss them. The most singular feature in connection with the entire practice is the failure of any of the cases to point out the authority in law or by statute for the practice of requiring that, where it is sought to review upon appeal rulings made upon the hearing as to the admission or rejection of evidence, or .as to whether the evidence sustained the findings of fact, a motion for a new trial upon a case and exceptions must always be made in the first instance at the special term. As already stated, authorities can be found for an appeal directly from the judgment, ■and in Hatch v. Stewart, 42 Hun, 164; 5 St. Rep., 180, it is questioned whether the practice is not to appeal from the order of confirmation, and not from the judgment.

In Smith v. Velie, 60 N. Y., 106, which is the only case to which our attention has been called in which the court of appeals has considered the question, that court was seemingly of the ■opinion that where a disputed claim against the estate of a deceased person is referred pursuant to the statute, to preserve the right to review upon an appeal from the judgment entered upon the report of a referee, the aggrieved party must move at special .term upon a case or otherwise to set aside the report, or for a -new trial, or must appear and oppose its confirmation, and take the proper exceptions.

As already stated, the Code contains no provisions regulating the practice, and resort must be had to a solution made from what under the authorities would' seem to be the practice most sanctioned and approved by the courts.

The absence of any provision of law as to the time within which a motion upon a case and exceptions must be made presents another difficulty arising on this appeal. The usual course is for the defeated party to move on a case and exceptions for a new trial at the time of the hearing of the motion for the confirmation of the report, and if necessary the hearing of the motion would be ¡suspended to enable a case and exceptions to be made and prepared for the hearing. But such a motion may be made after the confirmation of the report, and after judgment has been entered.

The question remains, how long after ?

In this case the time to appeal from the judgment expired April 6, 1891, while the notice of motion for new trial was not ¡served until November 27, 1891. Motions of this character in .actions are controlled by § 1002 of the Code, which provides that it cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment.

By § 1351 such time is limited to thirty days after service upon the attorney for the appellant of a-copy of the judgment ’Therefore, in actions,' a motion upon a'case and exceptions must be made within thirty days after notice of entry of judgment.

This section (1002), it has been held, refers entirely to motions in actions and has no application to special proceedings. Denise v. Denise, 41 Hun, 9; 2 St. Rep., 175. That case is also author- . ity for the proposition that appeals from orders and judgments ■entered in special proceedings are regulated by §§ 1356 and 1857 •of the Code and not by § 1346 thereof.

Section 1359, which fixes the limitation of time within which .an appeal is to be taken as provided by §§ 1356-7, which controls appeals from orders or judgments in special proceedings, provides that “ an appeal must be taken within thirty days after service of a copy of the final order from which it is taken, with a written notice of the entry thereof, upon the appellant”

Where, therefore, a motion is made for a new trial upon a case and exceptions and an order is entered thereon, the limitation of time to appeal is controlled by § 1359. But I have been unable to find any provision of the Code or any authority which determines when the motion itself must be made.

In the absence of authority or Code provision we take it that the rule to be applied would require that such motion should be made within a reasonable time, and what is a reasonable time would necessarily depend upon the circumstances of the case. If we are correct in this view we cannot say, upon the facts disclosed by this record, that the appellant unreasonably delayed making the motion, and having within the time prescribed taken his appeal from the order denying the same, and having originally appeared upon the motion to confirm the report and opposed the same, and having taken an appeal from the judgment entered thereon, we think that the merits of the appeal are before us for consideration.

So much of the facts as are necessary to dispose of the appeal may be briefly stated. The respondent, who is a furniture dealer, a few days prior to May 1, 1888, undertook to furnish a flat for the defendant’s intestate, and delivered at the flat a portion of the goods between the 30th of April and' the 5th of May, 1888, of the value of $1,400. The defendant’s intestate, Adamson, died ■on the 3d of May, 1888, and notwithstanding this fact the plaintiff continued to deliver furniture on that and the two following days. Upon Adamson’s death the landlord evicted his widow and took possession of the flat. The plaintiff having concluded after inquiry that the intestate’s estatewas insolvent, stopped the delivery of further goods and tried to recover possession of the goods already delivered, finally paying the landlord for the privilege of going into the premises and taking the goods. The plaintiff took possession of the flat on May 7, 1888, and removed .goods from time to time from May 10th to August 2, 1888. After such- goods as were in the flat were taken away by plaintiff he ■claims to have discovered that certain furniture which had been ■delivered at the flat had either been lost or stolen while in the possession of the defendant’s intestate.

The position then assumed by the plaintiff and the claim sought to be enforced against the estate of the deceased, are thus .set forth in the opinion of the referee:

While the furniture was being placed in the apartments the purchaser died intestate. The plaintiff thereupon went to the flat and took possession of and removed all the goods that he could find. Most of the goods so removed he appraised and sold to a ■second-hand dealer at a loss, it is asserted, as compared with the contract price of $439.92. Besides this, $407.21 in value of the furniture had been stolen or taken from the flat, and the plaintiff was not able to recover possession of it. Plaintiff also performed work for Adamson about the same time of the value of $30.25/ and also paid the landlord of the flat sixty dollars, being the amount of one month’s rent of the flat, to enable the plaintiff to-get possession of the goods without the trouble of a replevin. He also spent $10.50 in taking down poles and removing the goods. He now seeks to recover these various amounts from the administratrix of the intestate.

His conduct seems to have been founded upon the mistaken theory that his contract relations with Adamson were all abrogated by the death of the latter. The administratrix has not chosen to resist the rescission of the contracts, or to counterclaim damages, but has allowed the plaintiff to abrogate them as far as he was able so to do.

I therefore feel constrained to disallow the claims of $439.92; of $10.50 and of $60, and find that the plaintiff is entitled to judgment for $407.21 and $30.25, with interest from November 21, 1889, besides costs.

It is impossible to reconcile the conclusions thus reached by the-learned referee as to the goods that were retaken and as to the goods alleged to have been lost or stolen.

As to the former he held that the statute of frauds applied and as to the latter that it did not. In other words as the statute required either a waiting or part payment or delivery and as no claim was made that there was any contract in writing or that any money had been paid, it was necessary in order to make title in the intestate of the property alleged to have been lost or stolen that there should be an unconditioned delivery. Whether we regard the arrangement between the parties as a sale for “ spot cash,” which condition was waived, or a sale on credit, the test in many of the cases as stated in Benjamin on Sales, § 187, for determining whether there has been an actual receipt by the purchaser has been to inquire whether the vendor has lost his lien. “ As long as the seller preserves his control over the goods so as to retain his lien he prevents the vendee from accepting and receiving them as his own within the meaning of the statute.”

To justify a retaking the learned referee was obliged to hold that plaintiff had not lost his lien, that he had a right to rescind and that the title had not passed, and yet to permit a recovery for articles lost or stolen, lie was compelled to hold that there-was a complete delivery to satisfy the statute of frauds and that title had passed and that the vendor had lost his lien.

The contract oi sale whether entire or divisible, conditional or absolute, as to its terms was the same as affecting all the property, and as to so much of it as reached the flat, either the title passed or it did not. And it should be noticed that some of the property retaken, and some lost or stolen, were part of the same shipment or delivery, thus showing that there is no difference as respects terms of -sale or title between the property retaken and the property lost or stolen.

The referee, as stated, in effect held that as to property retaken the title did not pass and the vendor had a right to rescind, but for the property lost or stolen the title did pass and the vendor could recover the value thereof.

If the goods never became Adamson’s property, and he was merely a bailee, then for the property lost or stolen he would only be liable on proof of negligence.

If the title passed then the retaking was unlawful and legally indefensible. For even if we assume a license in favor of the vendor to retake the thing sold, if not paid for, this would not be available against the administratrix. Howes v. Ball, 7 B. & C., 484; Benjamin on Sales, § 188.

The referee found that no claim for damages or loss in connection witli the reclaimed or retaken goods could be allowed, thus recognizing the entirety of the contract, and the effect of rescission thereof as regards these goods.

What reason exists in law or arises upon the facts to justify the application of any different rule to the goods not retaken? As already said, the goods were all sold and delivered under one and the same contract, the same in terms if not an entire contract, and what was true as to one part of it was true as to each and every part.

We are aware as contended by respondent that in law, upon the failure of a purchaser to perform a contract for the sale of personal property, the vendor may hold the property for the purchaser, and recover the entire purchase money, or he may sell it and recover the difference between the contract price and that realized upon the sale, or he may retain the property as his own and recover the difference between the contract price and the market price. All these relate to the remedy of the vendor as against a vendee who refuses to perform, and where the contract shows a sale to the vendee. No authority however can be found for allowing a vendor who under the same terms of sale (even if the contract is not entire), at different times delivers property, to claim that the title to some of the property has passed, and to other articles that it has not passed. We do not think it necessary to discuss the subject further. Bights of parties and their obligations must be determined with some regard to consistency in principle. The inconsistent position of the referee, regardless of the other questions involved, requires that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., and Patterson, J., concur.


author: Yan Brunt, P. J.—It

text:
    In the Matter of Arthur Mellen.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Assignment for creditors—Grounds for removal of assignee.
    It is sufficient to authorize the removal of an assignee for creditors that he has sought to further the interests of the assignor; retained the counsel employed by the assignor’s wife, who had claims on the assigned estate .hostile to those of creditors; was guilty of prevarication in the interests of the wife of the assignor and made no examination of the assignor’s books after notice from creditors that certain assets had not been included in his inventory.

      2. Same—Reference.
    On application for the removal of an assignee the court may refer the matter to a referee to take proof thereon and report with his opinion for the purpose of aiding the conscience of the court.
    3. Reference—Removal of referee on ground of prejudice. '
    A referee cannot he removed on the ground of prejudice because he correctly charged an attorney for one of the parties with delaying and obstructing the proceedings before him.
    4. Attorneys—Privileged communications.
    An attorney cannot refuse to testify as to communications made to him on the ground that they were privileged when the person making them has-disclaimed the existence of the relation of attorney and client between the witness.and himself.
    "*r,
    5. Same—Third persons.
    The exemption does not extend to communications from third persons, to whom an attorney has been referred by his client.
    Appeal from order removing assignee. Appeal from order referring it to a referee to take proof of the facts stated in the petition and the answers, etc., and to report with his opinion. Appeal from order denying motion to remove referee. Appeal from order requiring a witness to attend and testify before the referee.

      Henry Daily, Jr., for app’lt; George Hill, for resp’ts.
   Yan Brunt, P. J.—It

is impossible to consider in detail the-lengthy record and argument of counsel upon the appeals from the various orders above mentioned. It will suffice in disposing of these appeals to deal with the merits of each in a general way without attempting to particularize the various circumstances-established by the record and which have led to the conclusions arrived at.

It seems to us that this record exemplifies to a striking degree-the impropriety of the appointment of an assignee for the benefit of creditors who is a non-resident of this state. Although it is claimed the assignee in question appointed an attorney to appear for him in all proceedings which might be brought against him,, it is apparent from the facts appearing upon this record that service of papers upon the assignee was impeded by such non-residence, and he was enabled to delay his appearance because thereof. Although this of itself would probably not have been sufficient to justify the removal of the assignee, there are other facts disclosed which show that no other conclusion could have been arrived at, not only in justice to the parties represented by the assignment in the case at bar, but also without setting a precedent which might be in other’cases productive of the greatest mischief.

It is apparent that the assignee sought by every means within, his power to further the interests of the assignor- and his wife-in the claims which were presented against the assigned estate; that he aided them in the procuring of testimony, and even went so far in his advocacy of their claims as to employ their attorney as his counsel in the administration of the assigned estate. An assignee should certainly be unbiased as between the various parties interested in the assigned estate; and it is the-grossest misconduct for an assignee to employ the known counsel of a person holding property alleged by other parties interested in the estate to belong to such estate, and who has been-retained to defend that possession.

The result of the retainer of such counsel has been a studied attempt to throw every impediment in the way of those seeking information in regard to this estate, even to the most outrageous prevarication; in one instance the counsel stating when called upon to produce certain books that he had none in his possession, that none such had come into the possession of the assignee, and none into the possession of the attorney, and that if they had come into the possession of the assignee, they had not been sent to the attorney, when the fact subsequently appeared that during all this time the attorney had the possession of these books and had wilfully suppressed the fact, making a false statement before the referee in order that the evidence might be reserved for certain other litigations in which his real client, the wife of the assignor, was a party. It further appears that the assignee himself in his eagerness to protect the wife of the assignor in the possession of the property which she had received from him, did not hesitate also to swear to what it is evident he knew to be untrue.

Certain charges were made in the moving papers against the assignee in respect to deeds of property made by the assignor for the benefit of his wife, and claims were made against the assignee because of his failure to act in reference to those deeds, and the charge was made that before the making of the general assignment he had knowledge of said deeds and of the commencement of a partition suit, and of the claims of the petitioners herein. In answer thereto the assignee swore that he had no knowledge of such deeds either before or at the time said general assignment was made and not until months afterwards.

The assignment was made on the 24th of April,-1889, and it appears that on the 8th and the 20th of April, 1889, the assignee had written to A, C. Ellis, the then attorney for the assignor and his wife, letters in which he shows his solicitude that the assign- or’s wife should be able to maintain the integrity of the very conveyances which in his answering affidavit above referred to he had denied having any knowledge of.

The petition also contained statements that the then attorney for the assignor and his wife had consultations with the assignee in regard to the making of the conveyances, etc., and the assignee in his answer stated that he had not seen and conversed with said assignor and his wife for at least seven months before said deeds are alleged by the petitioners to have been made, the date of the deeds being the 5th of November, 1888, whereas it was established upon this hearing that in October, 1888, he had seen and talked with the assignor, and even admitted the same upon his examination.

It further appears that the assignee made no examination of the books of the estate for the purpose of ascertaining its condition nor for the purpose of learning whether there were assets other than those contained in the inventory filed by the assignor, and notwithstanding the fact that the assignee had notice soon after his appointment that the petitioners claimed that the assignor had assets not included in his inventory, the fact being that subsequent to the 24th of May, 1889, the assignee committed the whole business of the assigned estate to the attorney for the assignor and his wife, and used his position entirely for their benefit.

And there are other circumstances which go to show that the assignee was more solicitous for the protection of the claim of the wife of the assignor upon the property, which she had acquired from the assignor, than he was to protect the interests of the creditors upon the assignor’s estate.

But it is needless to go more at length into the voluminous testimony offered, because what has already been adverted to seems to be much more than sufficient to justify, but also to require the removal of such an assignee.

. It is urged that the referee was guilty of error in admitting certain testimony, namely, that of Mr. EÍlis and of Mr. Mellen, who was then deceased. Although the evidence given by Mellon in the partition suit may not have been strictly competent as against the assignee, he not being a party to that action, yet it is not of such a character as in any way to affect the conclusion arrived at upon other facts incontestably established.

As to the objections to the evidence of Mr. Ellis, they will be •considered in the discussion of the appeal from the order which was made requiring him to testify.

The order removing the assignee should be affirmed, with ten dollars costs and disbursements, to be charged against the assignee personally.

The next order appealed from is that referring it to a referee to take proof of the facts stated in the petition for the removal of the assignee and the answer thereto, the referee being-required to report with his opinion thereon.

We are not aware upon what ground this appeal is based.

The court undoubtedly had the power to refer any questions to the referee to take proof thereon and report with his opinion for the purpose of aiding the conscience of the court. Not that such report is binding upon the court, but it simply presents the evi- • deuce with the opinion of the referee as to its weight, he having-had the benefit of hearing the -witnesses orally testify.

This order should also be affirmed, with- ten dollar's costs a;;d disbursements, to be paid by the assignee personally.

There seems to be no basis whatever for the appeal from the •order denying the motion to remove the referee. The attorney for the assignee had been guilty of the greatest procrastination and had evidently been endeavoring by every means in his ¡tower to delay the proceedings in the reference: and that the patience of the referee had not long before been exhausted is the only matter for surprise presented by the record. That a court or referee is presumably prejudiced because it correctly characterizes the proceedings of the attorney before him, has not yet obtained in legal jurisprudence. But this seems to be the only ground upon which the motion to remove the referee was made and upon which this appeal is based.

The referee doubted, and subsequent events proved correctly ■doubted, the good faith of the conduct of the attorney; and that he should be required to appear to be so much without sense as to be seemingly imposed upon by the transparent tactics of the attorney seems to be the claim made upon the part of the appellant. We are not aware of any such rule, .and we see nothing upon the admitted state of .facts in reference to the 'proceedings before him which calls for criticism, except, perhaps, too much longsuffering.

This order should also be affirmed, with ten dollars costs and ■disbursements, to be paid by the assignee personally.

The next appeal is from the order requiring the witness Ellis to testify. It appeared that he had been required to attend before the referee, and to produce certain papers which he had received from the assignee. The witness claimed that he had been the attorney for the assignee, and .that as such the communications between himself and his client were privileged.

Upon the reference, attention being called to the affidavit made by the assignee in answer to the allegations contained in the petition upon the motion for his removal, in which the assignee stated that he had never employed Ellis as his attorney or counsel, or authorized him to act for him in any capacity, or with respect to any business of any kind, the referee directed the witness to answer. ' He still refusing, and the referee holding that he had no power to compel him to answer, a motion was made before the ■court to compel the witness to answer. This motion was granted.

It is claimed upon the part of the appellant that it was error to refuse to the assignee or his attorney an opportunity to be heard in opposition upon the objections which had been made by the attorney for the assignee, and upon which objections Ellis had refused to answer the questions.

It might be sufficient to say that there is nothing in the record tending to show that the judge before whom the motion was made refused to allow the attorney to be heard. On the contrary, it does not appear that any such request was made, but it does appear that the attorney for the assignee appeared, and objected to the motion being heard upon the ground that the assignee had received no notice thereof. The proceeding before the court was simply to enforce the ruling of the referee, and the assignee had his exception to the ruling, and it was available to him ; the only point being whether the ruling was so manifestly erroneous that the court should refrain from disciplining the witness for contempt of court.

It is perfectly plain that the referee was entirely right in the ruling which he made. It is true that the witness claimed to have been the counsel of the assignee at the time of the writing of the letters which he was required to produce. But the assignee had in the most solemn manner under oath, and unqualifiedly and without reservation, denied that he had ever occupied that relation towards him either individually or as assignee, or in any capacity whatever or in respect to any business. In the face of this disclaimer under oath there was no interest whatever of the assignee which the court was bound to protect. There were no secrets of attorney and client which under the provisions of law should not be divulged. The client must know as to whether or not he made the communications in view of that relation, and if they were not made in view of that relation then the communcations were not made by the assignee to Mr. Ellis in the course of Mr. Ellis’ professional employment by the assignee.

But it is sought to show that it was erroneous to allow Ellis to be examined because he had been the attorney for the assignor and his wife and that these letters by the assignee were written to him while he occupied that relation. And we are referred to one English authority and one authority in a United States court to sustain this proposition.

It is undoubtedly held in those cases that the privilege of the-attorney extends to information received on behalf of the client in regard to his affairs from persons to whom the attorney has been referred by the client for the purpose of his obtaining such information as his counsel. But the question is not to be controlled by the decisions of English courts nor those of the United States. The authority of the Code under which this exemption must be claimed and established, if at all, is explicit.

It is as follows: “ An attorney or counsellor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional 'employment”

It will thus be seen that the exemption embraces only communications between the client and his attorney, and does not extend to communications from third persons to the attorney; and judicial construction has never enlarged the rule, certainly in this state, to the extent claimed by the appellant.

In regard to the proof of the letters, they were amply established. They were shown to have been received under circumstances which carried the proof of their authenticity with them; and although the assignee was examined on his own behalf he had not the hardihood to deny his own handwriting.

The cases of Bacon v. Frisbie, 80 N. Y., 394, and Britton v. Lorenz, 45 id., 51-57, in no way conflict with this view. In those cases it was held that the relation of attorney and client existed; and in the case first cited the court held that it was manifest that the party went to the attorney and spoke to him of the matter upon the faith that he was his lawyer and of the relation existing between them as counsel and client.

In the case at bar the assignee has disclaimed in the most solemn .manner that atiy relation of that kind had ever existed in respect to any business between himself and Mr. Ellis.

There is no reason, therefore, for disturbing this order, and the-same should be affirmed, with ten dollars costs and disbursements, to be paid by the assignee personally.

The judgment, therefore, is that the four orders appealed from-. "be affirmed, with ten dollars costs and disbursements, in each case to be paid by the assignee personally.

O’Brien, J., concurs.


text:
    William M. Hall, Resp’t, v. Susan L. Roberts et al., Ex’rs., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Variance.
    Plaintiff brought an action to recover $30,000 which he alleged defendant’s testator was to pay out of the proceeds of the sale of a certain ship; that he promised to notify plaintiff of the sale and pay the $30,000 within ten days thereafter. The court held that the statute of limitations would only begin to run from the time of such notification. In a second trial of the action tlieie was a variance between the complaint and the proof in that no particular time was shown in which the notification after the sale was to be given. Held, immaterial, as the principle and application of the former adjudication remained the same.
    2. Evidence—Code Crv. Pro., § 879.
    In such case plaintiff was allowed to testify that he had never heard of the sale of the ship from any source until 1887. Held, error, as it was equivalent to permitting him to testily that he had never received any notification from defendant’s testator during his lifetime, and which if he had attempted to prove directly would have been clearly inadmissible within § 829 of the Code.
    .3. Payment—Presumption from lapse of time.
    The presumption of payment created by lapse of time is not conclusive, but one of fact capable of rebuttal, and it is error for the court to refuse requests to charge so drawn as to leave it to the j'uryto determine whether such presumption was justified by the facts.
    Appeal from order denying motion for new trial upon the ■judge’s minutes and upon exceptions directed to be heard in the first instance at general term.

      Vunderpoel, Cuming & Goodwin (Almon Goodwin and John Yard, of counsel), for app’lts; James K. Averill (George F. Betts,of counsel), for resp’t.
   O’Brien, J.

This case has previously been before this court on an appeal by the plaintiff from a judgment against him, which was reversed and a new trial ordered. Hall v. Roberts, 58 Hun, 539; 35 St. Rep., 620. That decision, so far as it may be applicable to the facts presented" upon the trial, is controlling regardless of what, if the questions were presented for the first time, would be the individual views of the members of this general term.

The action is brought upon the following instrument under seal, which is alleged in the complaint to have been executed by Marshall O. Eoberts and delivered by him to the plaintiff for a good and valuable consideration : “ Know all men by these presents: That I, Marshall 0. Eoberts, of the city, county and State of New York, hereby acknowledge myself indebted to William M. Hall, of Brooklyn, Kings county, and State of New York, in the sum of thirty thousand dollars, which amount will be due and payable to the said Hall, his heirs, executors or assigns, when the steamship 1 Illinois,’ of twenty-five hundred tons burthen, which is in the market, shall be disposed of by sale, gift or loss, and which is held by me to sell and dispose of, and from the proceeds, to pay said Hall the amount above named, and

“ It is agreed and understood between the aforesaid Roberts and Hall, that neither the whole or any part of the above sum of thirty thousand dollars will be due or payable until a sale and transfer of the said steamship 1 Illinois ’ is perfected, in which event. I hereby promise and agree to notify said Hall of her disposal and within ten days thereafter pay the full amount in the lawful currency of the United States as stipulated above.

“Marshall 0. Roberts, [seal.]

“ Witness:

“Theodore E. Tomlinson,

“New York, February 10, 1864.”

The making of this agreement is denied by the defendants.

The complaint further alleges and the answer admits the death of Roberts on September 11, 1880, and the qualification of the defendants as executors on October 8, 1880; that said steamship Illinois was sold and transferred by said Roberts on or about the 29 th of October, 1864, but that the plaintiff did not learn of such sale and transfer until on or about the 10th day of November, 1887;. that said Roberts did not notify the plaintiff of such sale during his lifetime; that the said sum of $30,000 has not been paid and that the defendants are indebted to the plaintiff in the sum of $30,000 and interest, and demands judgment accordingly.

The trial upon the evidence presented resulted in a verdict in favor of the plaintiff in the sum of $17,365.

To secure a reversal of the judgment the appellants rely upon three principal grounds which may be stated as follo.ws:

First. The statute of limitations ;

Second. Admissions over the objection of the defendants of incompetent evidence and evidence of transactions between the plaintiff and the deceased contrary to the provisions of the Code and,

Third. A refusal to charge as requested in regard to the presumption of law and fact arising from the long lapse of time in favor of the payment or other discharge of the written obligation sued upon.

Considering these in their order, as we have already stated, being controlled by the former decision of this general .term, we are of opinion that under that decision as applied to the facts now proven the statute of limitations is not a bar.

It was therein held, construing, it is true, the instrument herein-before set forth in full, that the money was neither due nor payable until the expiration of ten days after the plaintiff had received notice of the sale of the vessel, and that the statute of limitations had not begun to run until the plaintiff ascertained in 1887 that the vessel had been sold.

Much stress in the opinion was placed upon that part of the instrument by which Roberts bound himself to notify the plaintiff of the sale of the vessel, and within ten days thereafter to pay the full amount, and while we are not now considering what was alleged in the complaint, but what was proven upon the trial, yet I think we shall reach the conclusion that, though there is a variance between the allegations of the complaint and the proof, it does not change the principle upon which the former adjudica-: tian as to the statute of limitations was founded.

The witnesses Winslow and Hwyden, who alone gave secondary evidence as to the terms of the agreement (the instrument itself having been lost), did not testify as to any time after the sale of the vessel within which Roberts agreed to notify the plaintiff, or pay the money, yet both of them did testify that Roberts agreed to notify and pay the plaintiff when the vessel was sold. Although, therefore, prominence was given to the ten days requirement in the former decision, its reasoning applies with equal force to “ notification,” if the ten day clause is omitted. As is there stated, the statute of limitations had not begun to run at most until Mr. Hall ascertained, namely, in 1887, that the vessel had been sold, the obligation to give notice resting upon Mr. Roberts and his representatives.

It will thus be seen that in the former decision, as in the proof offered here, there were two elements or incidents that were controlling; one that Roberts would hold the $30,000 of the proceeds of the Illinois when sold, and the other that he would notify Hall of the sale.

The second ground relied upon relates to exceptions taken by the defendants to the admission of certain evidence.

We seriously question whether the plaintiff should have been allowed to testify that he showed the alleged agreement to one Starr, who was subsequently allowed to testify that the name of Roberts was signed to that paper, although Starr admitted he was not familiar with Roberts’ handwriting; as such testimony at least tended to establish the contract or agreement between the plaintiff and the deceased Roberts, which would seemingly be controlled by § 829 of the Code.

But the objection' taken to the testimony permitting the plaintiff to state that the first he heard from any source of the sale of the vessel was in the year 1887, seven years after Roberts’ death, was clearly well founded. For §829 not only prohibits direct testimony of the survivor as to a personal transaction, but also any attempt by indirection to prove a like transaction.

In Clift v. Moses, 112 N. Y., 426; 21 St. Rep., 777, the rule is thus stated : “It has been held with general uniformity that the section prohibits not only direct testimony of the survivor that a personal transaction did or did not take place, and what did or did not occur between the parties, but also every attempt by indirection to prove the same thing, as by negativing the doing of a particular thing by any other person than the deceased, or by disconnecting a particular fact from its surroundings and permitting the survivor to testify to what on its face may seem an independent fact, when in truth it had its origin in or directly resulted from a personal transaction.”

The testimony given by the plaintiff that he had never heard of the sale of the vessel from any source until 1887, was equivalent to permitting him to testify that he had never received any notification from Roberts during his lifetime, which, if he had attempted to prove directly, would have been clearly inadmissible and within the inhibition of the Code.

As to the third ground relied upon, namely: the refusal of the learned trial judge to charge certain requests of the defendants, we think that the exceptions to certain of the refusals were good, and entitled the defendants to a new trial.

It is unnecessary for us to notice all of these requests, as they are of the same general character having relation to the rule of law in regard to what presumptions, if any, arise by lapse of time.

For the purposes of this appeal, although there were many of these requests, we shall refer to two only, namely: the first and second, which will enable us to cafi attention to the distinction, which seems to have been lost sight of, between presumptions of law and presumptions of fact, and the bearing ■ of this distinction upon the facts presented upon this appeal.

They are as follows :

First. After a.lapse of twenty years the law presumes the payment of bonds and j udgments and the due execution of covenants and agreements.

Second. In the present case more than twenty years having elapsed after the sale of the steamship Illinois and before the commencement of this action, the law presumes that the obligation of the defendants’ testator Marshall 0. Roberts, if any there ever was, has been performed, which presumption unrebutted is conclusive.

The first of these requests was clearly unobjectionable. The second asked for a presumption of law and therefore conclusive, and -was properly refused.

This, however, and similar requests, were so framed as to give the defendants the benefit of the presumption of fact which arose from the lapse of time. The learned trial judge based his refusal to charge such propositions so as to give the defendants the benefit of the presumptions upon the former decision of the general term. That decision, as we read it, had reference only to the statute of limitations and did not decide anything as to the rule of presumptions, which was the one the defendants sought by their requests to invoke. The statute and the rules of presumption are two separate and distinct principles. Macauley v. Palmer, 25 St. Rep., 969. Upon the affirmance of the case cited the court' of appeals said: 125 N. Y., 744; 36 St. Rep., 175, “One of the grounds upon which the general term affirmed the judgment of nonsuit was that there was a presumption of payment arising from the lapse of time wholly independent of the statute of limitations. This presumption, however, is not one of law that is available to the defendazzt as a bar to the action on the claim, but one of fact for the jury. Under the defense of payment the lapse of time may be considered in connection with all the facts and circumstances of the case, and it may soznetimes with the other circumstances warrant the infezence that the claim was paid. The nonsuit in this case cannot be upheld upon the ground that from lapse of time there is a conclusive presumption that the claim was paid. The most that the defendant was entitled to on the question of the lapse of time was to have it submitted to the jury as evidence in support of the defense of payment. 2 Phillips on Ev., 4 Am. ed., 171; 1 Greenl. on Ev. 13 ed., § 39; Jackson v. Sackett, 7 Wend., 94; Bean v. Tonnele, 94 N. Y., 481; Parker v. Foote, 19 Wend., 309; Wood v. Squires, 1 Hun, 481; Miller v. Smith, 16 Wend., 443; Jackson v. Hotchkiss, 6 Cow., 401; Mayor v. Horner, 1 Cowp., 109; Darwin v. Upton, 2 Saund., 175.”

Under the rule thus laid down and giving due weight to the testimony of Jackson, one of plaintiff’s witnesses, in regard to the conversation which he overheard between the plaintiff and Boberts in 1870, it was still error for the court not to give the defendants the benefit of the presumption of fact which could properly be drawn by the jury from the circumstances of the case.

In respect, therefore, to such requests as sought to have the court charge that a presumption of law which would be available to the defendants as a bar to the action existed, the refusal of the court was right. But as to such of them as required the court to present the question as one of fact for the jury, it was error to refuse to charge as requested. The defendants were entitled to the benefit of this presumption of fact created by lapse of time, upon which to a great extent their whole defense rested.

Such rulings, therefore, having been erroneous and duly excepted to, require that a hew trial should be had.

The exceptions should be sustained, and the order denying the motion for new trial should be reversed and a new trial granted, with costs to appellant to abide event Van Brunt, P. J., concurs in result.