author: Kennedy, S.

text:
    In the Matter of the Estate of Mary Sweetland, Deceased.

      (Surrogate’s Court, Madison County,

      Filed January 14, 1892.)

    Collateral inheritance tax—Parental relation.
    The deceased was a co-tenant of certain property with her sister, the mother of petitioners, and resided thereon with her sister’s family until her sister’s death, without any agreement as to board or payment of rent. After the sister’s death she continued to reside there in the same manner. After their father’s death I he petitioners continued to work the farm in the same manner as formerly and deceased continued to reside with them until her death. Held, that this was not sufficient to constitute the relation of parent and child between them so as to justify an exemption from tax upon the property received by them from her.

      Proceeding for collateral inheritance tax.

      M. H. Kiley, for petitioners; J. A. Johnson, for the people.
   Kennedy, S.

—This is a proceeding to show cause why a decree should not be made adjudging that the real and personal estate passing to the petitioners, Floyd Greenman and Henry Greenman, nephews of deceased, is not subject to taxation under chapter 488 of the Laws of 1885, and the several acts amendatory thereto..

The two nephews make this application for exemption from the payment of the tax on the ground that for a period of not less than ten years prior to the death of their aunt, Mary Sweetland, they stood in the mutually acknowledged relation of parent and children.

The facts upon which the application is based are as follows: Mary Sweetland was never married, and from the earliest recollection of the petitioners had made’her home a part of the time with her parents, and some of the time with others. Upon the death of Miss Sweetland’s mother, her heirs agreed upon a settlement of her estate, by which the mother’s farm in Cazenovia became the property of Miss Sweetland and her sister, Mrs. Green-man, the mother of the petitioners. Some time previous to the death of Mrs. Sweetland, Mr. and Mrs. Greenman moved onto and carried on her farm for her, and after her death continued to occupy said farm till their death, since which time the two petitioners have occupied and managed said- farm till the death of their hunt, receiving and using the entire avails of it without objection from Miss Sweetland, and paying her no compensation for the use of her. half of the farm, and having no agreement with her in relation to it. Upon the death of their mother, the two boys became the owners of an undivided half of the farm in question, and by the will- of their aunt were made legatees of the other half of it, and all of her personal estate, amounting in all to about $4,000. Mrs. Sweetland died in 1879; Mrs. Greenman July 28, 1879; Mr. Greenman March, 1881, and Miss Sweetland November 3, 1889, aged sixty years. Henry is now thirty-eight years old, and Floyd thirty-one, and they claim that the relation of parent and child existed between themselves and their aunt from the death of their mother, July 28, 1879, to the death of their aunt, November 3? 1889, a period of about ten years and three months, notwithstanding the fact that their father did not die till March, 1881, leaving only a period of eight years and eight months for the relation to exist after the death of their father, provided such a relation did or could arise and have a legal existence by reason of any facts proven in this proceeding. The petitioners, during the life of their parents, have always lived at home with them and assisted their father in farming, and never were engaged in business elsewhere upon their own account. After the father’s death the aunt and both nephews lived together in the same house for a few years, but subsequently Floyd married and built a house upon the farm, and thereafter lived separate from the aunt, leaving Henry and the aunt in occupancy of the old home till her death.

.The application must be denied, because we think the law to be that if a child continues to live at home with his parents after he has reached his majority the relation of parent and child, theretofore existing, will be presumed to remain unsevered, until by decisive and affirmative acts on the part of the child or parent his freedom and emancipation from such relation is claimed and asserted by him. Assuming this to be the law, the fact that some relative or other person lives in the same family as housekeeper or discharges many of the household duties ordinarily performed by a mother, or is treated and regarded as one of the’ family by a surviving husband and children who have reached their majority, is not of itself sufficient to create that ■ parental relation which the law recognizes as necessary to justify an exemption from the tax in question.

A less stringent and different rule should apply in case of minor children because of their lack of legal right to fix their relation with others, their real or supposed lack of that judgment and discretion which is necessary to determine what is best for them, their dependence upon others for their care, education and maintenance, and the duty of the public, the courts, and of private individuals to provide for those whose helpless situation makes parental care necessary for them. So, too, there may be other special and peculiar circumstances arising from social, family or business relations, or from other causes and conditions in life, which would satisfy the court that it had the legal right to infer the existence of parental relations. Again, if a father or mother dies, leaving children either over or under their majority, who have always lived at home, and the surviving parent remarries, such children and stepfather or stepmother, as the case may be, if they continue to recognize the relation of parent and children to exist between them as ordinarily exhibited in families, the relation of parent and child would be presumed to exist until the contrary was proven and ■such child or children, in cases of a legacy from the stepfather or stepmother, would be exempted from the payment of the inheritance tax. Within the rules of law above stated we think the petitioners would be exempt from the payment of any tax upon the legacy to them if their father had married his wife’s sister and they had continued to live at home with their taunt as their stepmother for the period of ten years in the manner in which they have lived, but we do not think the parental relation which the statute contemplates could commence in this case till the death of Mr. Grreenman,'a period of time too short to give the petitioners the benefit of the statutory exemption.

Having stated the rules of law applicable to proceedings of this character we call attention to some facts in this case in support of the conclusion we have reached. It appears that Mr. Grreenman occupied and worked the farm in question from the death of Mrs. Sweetland in 1879, till his death in 1881, without any agreement with Miss Sweetland in regard to rent or payment in any form for the use of her half of it, and that during all this time she remained a member of the family, living with Mr. Greenman. and his children without any agreement or understanding with reference to paying for her board, and upon his death the petitioners continued to carry on the farm till the death of their aunt in the same manner as their father had done, rendering her no account of its avails and paying her no compensation therefor, she continuing to live in .the house in the same manner as she had done during the lifetime of Mr. and Mrs. Greenman. From the time Miss Sweetland and sister became the owners of the farm upon the death of their mother there was no change in the manner of conducting the farm or in the mode of living as far as she was concerned. The aunt and the children each treated and cared for the other the same as they had always done.

Ever since the nephews were born she had made her home principally with their parents, had .eaten at their table and been one of the family for more than thirty years, and we assume she took an active interest in all family matters and assisted in all the varied duties of the household. But the relation of parent and child requires something more than living in the same house and family under the circumstances shown in this case. Miss Sweet-land and her sister were tenants in common of the farm and after the death of Mrs. Greenman she was a like tenant with her nephews, and as such we assume she was occupying the house and was not there by reason of a license or permission from the other owners but was in possession and living in the house by virtue of her legal right so to do, a right which could not be denied or taken from her. No act or agreement is proven by the nephews that they or their parents were ever in the exclusive possession of the farm, and it will therefore be presumed that the residence of the aunt in the house and all her relations with her nephews were, so far as business affairs are concerned, as a tenant in common with them and not the relation .of parent.and child, at any time.

Her life and theirs upon the farm were simply the assertion of the mutual rights which each had in the 'real property. The fact that she never received any of the avails of the farm would indicate that they were retained in payment for her board and services rendered in her behalf, because Mr. Greenman or her nephews would not probably have retained this income unless they had a right so to do for some purpose or reason mutually satisfactory to all.

The counsel for the petitioners rely upon the opinion of this court in the matter of the Spencer Estate, 21 St. Rep., 152, in support of the claim from exemption, but the facts of the two cases are so widely different that the conclusions of law therein maintained do not apply to this case.

The application of the petitioners will, therefore, be denied, and an order entered appointing an appraiser of the estate of Mary Sweetland.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Rudolph Rannow, App’lt, v. Edward C. Hazard et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. Appeal—Case—Abandonment.
    An order declaring a case on appeal abandoned is not a decision that the appeal itself is abandoned, but the appellant is free to prosecute it upon the judgment roll.
    2. Same.
    Upon a motion to vacate such an order the appellant is bound to satisfactorily excuse his default.
    Appeal from an order denying plaintiff’s motion to vacate an ■order declaring case on appeal abandoned.

      Waldorf H. Phillips, for app’lt; Hugh Porter, for resp’ts.
   Freedman, J.

—Plaintiff’s motion was to vacate the order declaring the appeal abandoned. There was no such order. The order of April 30, 1892, declared the case on appeal abandoned, which left the plaintiff free to prosecute his appeal upon the judgment roll. It was duly made and entered and has not been appealed from.

Aside from these considerations the plaintiff was bound, upon the motion to vacate the order as entered, to sufficiently excuse his default, but upon this point the affidavits submitted by both parties presented a conflict which was determined in favor of the defendants. Under all the circumstances disclosed, we cannot say that the plaintiff established the point by a preponderance of evidence.

The order denying the motion to vacate should, therefore, be affirmed, with ten dollars costs and disbursements.

Dugro and Gildersleeve, JJ., concur.


author: Per Curiam.

text:
    Augusta G. Genet, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co., Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Restitution—Costs.
    On the trial of the action the complaint was dismissed as to the cause of action for breach of contract, and judgment given for plaintiff on the second cause for equitable relief. Set off of costs was allowed' and judgment entered for the difference only. On appeal to the court of appeals, the judgment was affirmed as to the first cause of action and the complaint was dismissed as to the other, with costs. > Held, that defendant was entitled, by way of restitution, to the vacation of the order setting off the costs and the insertion in the judgment of the costs originally taxed on the dismissal of the first cause of action.
    Appeal from order granting motion to vacate an order setting off costs and amending the judgment so as to make it include the costs to which defendant was originally entitled, but which were extinguished by the set off.
    The motion was granted by the court at special term, on the authority of the following opinion written on a former motion in this action:

      McAdam, J.—The complaint states two causes of action, one at-law to recover $150,000 damages for breach of contract, the other in equity for an injunction and incidental damages. The referee dismissed the first cause of action, but awarded the plaintiff judgment on the second. The plaintiff thereupon taxed her costs at $618.67, and the defendant its costs at $570.44. Set off was allowed, and the plaintiff in consequence entered judgment in her favor for the equitable relief with $48.28 costs (the difference) and thfe defendant for the dismissal of the first count, without costs (the set-off having absorbed them). Both sides appealed; the judgment on the first count was affirmed by the general term, and the second count (modified in form) was- also affirmed thereat, “ without costs to either party.” Both sides again appealed, this time to the court of appeals, which court expressed its judgment in these words: “ That said judgment, so far as appealed from by the plaintiff, be affirmed, and that said judgment, so far as appealed from by the defendant, be reversed and the complaint dismissed, with costs.” The clerk, on application of the defendant, taxed the defendant’s costs in “all the courts.” This was error. He should have taxed the costs to the court of appeals only. 104 N. Y., 677; 5 St. Rep., 744; 126 N. Y., 658; 37 St. Rep., 480. The taxation must, therefore, be reversed, but with liberty to the defendant to move, by way of “ restitution,” to vacate the order for set-off, and for leave to amend the original judgment roll nunc pro tune by inserting therein in suitable language the costs originally taxed on the dismissal of the first cause of action, to the end that the defendant may not be deprived of them. These belong to the defendant as of right, not by the courtesy of the court, but by force of the statute. The judgment made by the court of appeals eliminated not only the plaintiff’s recovery, but the costs allowed to her which were made the subject of set-off.- The new condition, final in its character, seems to warrant restitution to the defendant in furtherance of justice, and to prevent abuse. The control which every court has over its own judgments would seem to sustain the power.

      Geo. C. Genet, for app’lt; Matthews & Smith, for resp’t.
   Per Curiam.

—The court at special term had power to order restitution, Wright v. Nostrand, 100 N. Y., 616; Carleton v. The Mayor, 19 Weekly Digest, 354, and as the method adopted to enforce it carried out the necessary effect of the judgment of the court of appeals and rendered it effectual, there is no necessity for condemning it by a reversal.

The order should be affirmed, with ten dollars costs, etc.

Freedman and Dugro, JJ., concur.


text:
    La Societa Italiana Di Beneficenza, Resp’t, v. Catharine Sulzer, App’lt.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. Appeal—Case—New Tbial.
    To bring up for review an order denying a motion for a new trial, the case must contain such order. A mere exception to the refusal to grant the motion presents no question for review.
    2. Pleading—Election.
    Where the answer to an action on contract alleges that it was procured by false representations, and sets up a counterclaim for damages sustained by plaintiff's failure to perform fully, an election between these defenses may properly be required.
    3. Contract—Damages—Representations.
    To warrant a person in incurring expenses on the faith of representations, they must relate to existing material facts; expressions of opinion or expectations are insufficient for that purpose.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from alleged order denying defendant’s motion for a new trial.
    Action upon an alleged promise by defendant to pay plaintiff’s assignor, the United Italian Societies, a sum of money for holding its picnic in her park. The answer alleged that the promise was obtained by false representations as to the number who would attend, and a counterclaim for damages sustained by defendant because of the failure of said assignor to fully perform.
    Defendant was to have the privilege of furnishing wines and refreshments on the grounds, the societies agreeing not to bring any. Some of the societies held their picnics elsewhere, and such as came brought their own wines and refreshments with them.

      Lorenz Zeller, for app’lt; Warren W. Foster, for resp’t.
   Per Curiam.

—The case contains no certificate or statement or other proof that the case on appeal contains all the evidence, and consequently this court cannot determine that the • order denying defendant’s motion for a new trial, if such order was made, is erroneous as contrary to the evidence or as against the weight of evidence.

Moreover, the case contains no order denying motion for new trial. A mere exception to the refusal to grant the motion, it has been repeatedly held, presents no question of fact for review.

For the reasons stated the exceptions only can be reviewed, and, if they are found untenable, the verdict of the jury must be held to have conclusively established that the contract sued upon was not procured from defendant by representations of existing material facts that were false and fraudulent, and also that the contract was substantially performed on plaintiff’s part.

The trial judge properly compelled the defendant to elect either to stand on her alleged counterclaim and to affirm the contract, or to abandon the counterclaim as such and to stand on the alleged facts as a defense. Defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part and rescind in part. To such a state of facts the case cited by appellant’s counsel, 67 N. Y., 237, has no application.

The offered evidence of preparations made by the defendant for the picnic was properly excluded. The only theory on which such evidence might be admissible, is that it goes to -show defendant’s belief in the representations made. But no represent&tion is available for that purpose, unless it is a representation as to an existing material fact. It was made to appear that the representations relied upon for rendering the excluded evidence admissible related to mere expectations, and not to existing material facts. If the defendant wished to rely on the representations of expectations which she claimed plaintiff’s committee made to her, she should have exacted from the committee a guaranty of the number to be present or a guaranty of profits.

The questions at issue were fully and fairly submitted to the jury under a charge which carefully guarded every right which the defendant had, and no exception appears anywhere which calls for reversal.

The judgment should be affirmed, with costs.

Freedman and Dugro, JJ., concur.


text:
    Herman Stuber et al., Adm’rs, App’lts, v. James D. McEntee, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    1. Master and servant—Negligence—When master not liable for INJURIES CAUSED BY UNSAFE PLACE OF EMPLOYMENT.
    Where a plumber, tinsmith or carpenter sends an employee out to dó a job about which the master knows nothing, in a place not prepared by or for him, the latter is not an insurer of the safety of the undertaking and is not liable if he gives no positive direction or assurance. In such case the duty of inquiring is upon the servant.

      2. Same—Release—Accord and satisfaction.
    Prior to plaintiffs’ appointment defendant gave them a sum of money for which he took their receipt in full payment for all expenses caused by the death of their intestate. Held, that their subsequent administration reative back and made the payment one made to them in their representlated capacity, and the damages being unliquidated, such payment amounted to an accord and satisfaction.
    Appeal by plaintiffs from judgment entered, upon dismissal of. the complaint at the trial, and from an order denying motion for a new trial.
    William Stuber, an employee of the defendant (a plumber), went down an excavation, about thirteen feet deep by four or five and. a half feet wide, to solder a pipe. The excavation, which was in One Hundred and Sixteenth street, near Eighth avenue, had not been boarded up, and the' sides caved in," carrying with them a large stone, completely covering the employee and causing his death.
    The action is by his administrators to recover from the defendant the statutory limit of $5,000 damages by reason of the death, which occurred May 12, 1890. On May 15, 1890, the defendant paid to Mr. Krause, who, in conjunction with the father of the deceased, took out letters of administration June 5, 1890, the sum of $400, and took the following receipt: “ This certifies that Mr. McEntee paid this day $400 to me, being payment _ for all expenses whatsoever caused by the untimely death of William Stuber, a plumber assistant in the employ of Mr. McEntee. Further, that I shall have no further claim whatsoever against Mr. Mc-Entee. R Y, May 15, 1890.”

      After the facts stated were proved, the complaint was dismissed.
    On motion for a new trial the following opinion was delivered:
    Me Adam, J.—The authorities bearing on the question of negligence are so numerous, and the distinctions drawn so subtle, that great care is required in determining which are and are not applicable to the case at hand. Slight variation in the facts will be found to distinguish one from another, leaving only the underlying principles (which are of an elementary character) to serve as a guide. Indeed, it is as difficult to find ready made law to fit every case of negligence as it is to get ready-made clothes to fit every individual. There is a process of re-adjusting, distinguishing, limiting and explaining going on all the while to make things suit the case at hand, without clashing with what was decided before, on facts slightly different, until it has become a study to determine with accuracy which adjudications fit new cases and which do not.
    Judge Peckham thus expresses the situation in Cullen v. Norton, 126 N. Y., 5; 36 St. Rep., 359: “ There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case.”
    It may be assumed that a “ master is bound to furnish reasonably safe and suitable implements for the use of the servant, and a reasonably safe place of employment, considering the nature of the employment itself.” Cullen v. Norton, supra. But where a servant, without any express direction from the master, or any assurance of safety by him, enters an excavation, the dangers of which are obvious and apparent, and consequently as well known to the servant as they would have been to the master if he had been present, it must be held that the servant in doing the imprudent act assumed the dangers consequent upon it, whatever they were. See 112 N. Y., 614; 21 St. Rep., 848; 121 N. Y., 207; 30 St. Rep., 494; 122 N. Y., 618; 34 St. Rep., 214. It cannot be said, in such a case, that the master was negligent and the servant free from fault; and this is a fair statement of the present case. The master could not relieve himself from the duty of supplying and maintaining suitable instrumentalities for the work required by placing the business in the hands of an agent. Fuller v. Jewett, 80 N. Y., 46; Crispin v. Babbitt, 81 id., 521; approved in Cullen v. Norton, 126 id., 6. In other words, the negligence of a servant does not excuse the master from liability to a co-servont for an injury which would not have happened had the master performed his duty. Coppins v. R. R. Co., 122 N. Y., 557; 34 St. Rep., 214. Yet the negligence of a co-servant, even of a higher grade, as a rule, defeats a recovery. Cullen v. Norton, supra. There was no attempt to prove that any one representing the defendant told the decedent to enter the excavation, or that it was suitable or safe to enter.
    In Franz v. L. I. R. R. Co., 123 N. Y., 1; 33 St. Rep., 46, the decedent was ordered to aid in cleaning certain water pipes, placed under ground at the defendant’s depot at Bay Ridge. A trench had been opened for that purpose by the section man and laborers under his direction some hours before the decedent commenced work upon the pipes. That was a necessary step to furnish him a proper opportunity for the performance of his own duty. He entered the trench and began to disconnect the pipes, and while so engaged the earth caved in upon him, and lie died of suffocation. The court held that “ those who opened the trench were performing the master’s duty to the deceased in preparing a suitable place and opportunity for the labor of the intestate in the discharge of his duty * * * and when the master ordered the intestate to perform his work as a machinist in the trenches opened and prepared for him, he had a right to assume that the place had been made reasonably safe by the master through other and competent servants employed by him.”
    There is no proof here that the defendant ever saw the trench, or that it was prepared by him or his employees as a place for the decedent to perform his work, or that he assumed or performed any duty respecting it. These facts are significant in distinguishing the present from some of the cases cited. In the absence of express or implied direction from the master to enter the trench in its unprotected condition, or any express or implied representation as to its safety, it is difficult to understand how the legal principle, carried to the border line by the Kranz case, can be extended to the present contention. There was no proof of notice to the defendant of the danger as in Pantzar v. Tilly Foster I. M. Co., 99 N. Y., 368, and nothing from which it may be inferred.

      In McGovern v. R. R. Co., 123 N. Y., 280; 33 St. Rep., 416, the master directed the servant to perform work at a place which proved dangerous, and the court held that where such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect the servant. The work in question was performed at a distance from the master’s shop, and in an excavation about which perhaps he knew nothing.
    The performance of the job here was delegated to the servant, who, by the circumstance, was put on his caution as to danger, and he cannot attribute to the master the consequences of a hazard apparent to the eye, and which he was bound to discern, for he knew the master had no one else to represent him at the job, and that in the nature of things he was compelled to rely entirely upon his own judgment as to the safety of the undertaking. 'In this he erred, but it does not follow that the master became liable for his error of judgment. The master is bound to know that his appliances are reasonably safe, unless the defect be one which could not be discovered by careful inspection or by application of appropriate tests. Probst v. Delamater, 100 N. Y., 266. If the defects are obvious and the danger apparent the master is not liable. 105 N. Y., 26; 6 St. Rep., 426; 103 N. Y., 667; 3 St. Rep., 679; 111 N. Y., 550; 20 St. Rep., 90; 88 N. Y., 264; 63 N. Y., 452; 116 N. Y., 628; 27 St. Rep., 760. It has been often said that the master is not liable for defects in such things to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. Shear. & Redf. on
      Keg., 4th ed., § 217. The master has no right to assume that the servant will use such means of knowledge; because it is no part of the servant’s duty to inquire into the sufficiency of those things. The servant has the right to rely upon the master’s inquiry, because it is the master’s duty thus to inquire; and the servant may justly assume that all these thing, are fit and suitable for the use which he is directed to make of them. The servant is liable only to respect to those things concerning which it is his duty to inquire. Id.
    The distinction is clear enough, but picking out the cases in which it is to be applied difficult. Still, every person sui juris is supposed to be sensible to dangers at once apparent, and is to be deemed reasonably intelligent enough to avoid them. This natural instinct necessary to self preservation is daily exercised in our large cities and crowded thoroughfares in crossing and recrossing streets, and in country towns in crossing and recrossing railroad tracks. The care to be exercised should be commensurate with the danger to be reasonably apprehended.
    The theory upon which Kranz v. L. I R. R. Co., supra, and kindred cases was decided, is that the law remembers that the respective situations of the master and servant are unequal, and excuses the servant for deferring to the superior judgment of the master. If, therefore, the master orders the servant into a situation o£ danger and he obeys, and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even where, like the servant, he was not entirely free to choose. Thus, where a hod carrier, engaged at work about an excavation, perceiving that it was dangerous, manifested some reluctance to descend into it, but was ordered by his employer to do so, and obeyed, and the earth caved in upon him and killed him, it was held that his widow might recover damages of his employer. The order was an implied assurance that there was no danger; the laborer rightfully relied upon the superior information and judgment of the master; and whether he was negligent, under the circumstances, in descending into the pit is a question for the jury (see cases collated in 2 Thompson on Neg., 975; Id., 976, § 5). In these cases, it is a natural yielding to a superior who commands, and the servant, like the soldier,' is supposed to obey, relying on the knowledge and ability of the commander.
    There are cases, however, where the master is not liable for defective machinery or improper appliances, among which are those (1) wherein the defects and dangers are so obvious as to become known to the servant. . The maxim volenti non jit injuria applies in such cases, for, as a general proposition, no one can maintain an action for a wrong where he has consented or contributed to the act which occasions his loss. Tindal, C. J., 2 Scott, N. R., 257. And the master is under no higher duty to provide for the safety of the servant than the latter is to look for his own safety. (2). Wherein a skilled engineer is placed in charge of an engine, the master not being a skilled engineer himself. Here the master relies on the judgment of the servant as to the safety of the machine, and not the servant upon the master; Thompson, supra, 980. And yet this presumption may be overcome by proof that the master knew of defects the servant without fault had not discovered. (3). Wherein an excavation is made by the servant himself in the absence of the master or an alter ego, and the earth caves in, the servant must be held to have assumed that risk as incidental to his employment, for there is no possible basis for the claim that he relied upon his master’s superior judgment, or upon any express or implied assurance of safety by him.
    In Leary v. R. R. Co., 139 Mass., 580, Mr. Justice Devens uses these words: “ But the servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and while ordinarily he is to be subjected only to-the hazards incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed- thereby, his assent dispenses with the duty of the master to take such precautions.”
    The situation here plainly told the servant he must rely upon his own intelligence, and he presumably so relied, and there is no theory upon which personal negligence, the gist of the action, can be imputed to the master. Before he can be charged, knowledge of the defect or danger must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Devlin v. Smith, 89 N. Y., 470. The defendant could not be negligent unless he did something he ought not to have done, or failed to do something he should have done, and this must be determined from what he knew or ought to have known from the circumstances existing at the time. The mere fact that an accident occurred which caused an injury is not generally of itself sufficient to authorize an inference of negligence. Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957; Cosulich v. Standard Oil Co., 122 N. Y., 118; 33 St. Rep., 287. And this upon the principle that if the evidence would justify an inference consistent with the absence of negligence on the part of the defendant just as well as it would an inference of negligence, the plaintiff cannot recover. See cases collated in 1 Shear. & Red. on Neg., 4th ed., p. 69, note 1. There is no proof here, as in Kranz v. L. I. R. R. Co., supra, that a separate gang of men (not including the person injured) made the trench, and that the employer ordered the decedent into -it to do other work. Inf eren tially, the trench was dug by the decedent himself, or he went into it without the directions of the employer, and in his absence, and before it was made safe by boarding up the sides.1 There being no evidence upon the subject, this is the inference, for the law will not infer negligence as a ground of action, where the absence of it is as consistent as its presence.
    The former presumption, that every person will take care of himself from regard to his own life and safety, cannot take the place of proof. Cordell v. R. R. Co., 75 N. Y., 330; Riordan v. S. S. Co., 36 St. Rep., 476. The burden is on the plaintiff to prove that there was no contributory negligence on the part of the deceased, Hart v. Bridge Co., 84 N. Y., 57; Hale v. Smith, 78 id., 480; Muhr v. The Mayor, 15 Daly, 12; 16 St. Rep., 688; Tolman v. R. R. Co., 98 N. Y., 198, unless the nature of the accident or the state of the proofs show the absence of contributory negligence. It will not do to allow jurors to found verdicts on anything but facts established by evidence or inferences properly drawn from those facts, or, as the court of appeals of Maryland held in the Baltimore & Potomac R. R. case (January 14, 1892): “ Speculations as to how or from what cause an accident occurred cannot be allowed to stand for proof, or be made the basis of a verdict in favor of the party upon whom the burden rests. There must be evidence from which the jury may reasonably and properly conclude that the accident was produced by some negligence or wrongful - act of the defendant.”
    There was no solid legal ground for holding the defendant liable for the unfortunate accident that befell the decedent, and no error in withholding the case from the jury. If a plumber, tinsmith or carpenter sends an employee out to do a job about which the master knows nothing, the latter is not an insurer of the safety of the undertaking, and is not liable if he gives no positive direction or assurance. The duty of inquiring would clearly be cast upon the servant in such a case.
    The second branch of the defense relates to the payment of $400. This sum was paid to Kurtz May 15th, 1890, and he immediately turned $60 over to the father of the deceased, who received it knowing that $400 had been accepted in payment. The subsequent administration by Kurtz and the father, by operation of law, related back and made the payment to them as in their representative capacity. See 2 Hill, 225; 8 Johns., 126; 1 Williams on Ex’rs, 240, 396-7; Farrell's Estate, 1 Tucker, 110; Joyce v. McGuire, 2 City Ct., 422. The damages recoverable being unliquidated in their character, Code, § 1904 and notes, this payment amounted to an accord and satisfaction, Coon v. Knap, 8 N. Y., 402; Berrian v. The Mayor, etc., 4 Robt., 538; Danziger v. Hoyt, 120 N. Y., 190; 30 St. Rep., 867; and see Jaffry v. Davis, 124 N. Y., 164; 35 St. Rep., 106, which discharged the cause of action, if any existed.
    For the reasons stated, the non-suit was rightfully directed and the motion for a new trial must be denied.

      A. Edward Woodruff, for app'lts; Thomas C. Ennever, for resp’t.
   Per Curiam.

—The judgment and order should be affirmed, with costs, upon the opinion filed by the learned trial judge on the denial of the motion for a new trial.

Freedman, Dugro and Gildersleeve, JJ., concur.


author: Dugro, J.

text:
    George T. Newhall, Resp’t, v. William H. Appleton et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Principal and agent—Commissions.
    A contract of employment to canvass for books provided that the agent should receive commissions on all good orders procured by him. In an action for commissions there was evidence to show that a good order is one that has been accepted by the house, and that an order becomes a good order as soon as it is received and entered on the books. Held, that plaintiff was entitled to commissions on all orders so received and entered on the books of defendants.
    , Appeal from judgment in favor of plaintiff, entered upon report of referee.

      Wm. W. Badger, for resp’t; Campbell & Paige, for app’lts.
   Dugro, J.

—If the referee erred in finding that the agreement in question was that the plaintiff should be paid when his orders were delivered to the defendants, and accepted by them, he only erred in finding that an acceptance of the orders by the defendants was part of the agrrement, and such an error could not prejudice the defendants.

There is evidence which will sustain a finding that the orders ■ were accepted.

The witness Rowland states that the only difference between an order and a good order is that the latter must be accepted by the house, and that an order becomes a good order as soon as the house receives it and enters it on the books.

It follows that an order which has been received and entered on the books is one that has been accepted. There is evidence that the orders were received and entered on the books.

Upon the whole case the judgment should be affirmed.

Gildersleeve, J., concurs.


text:
    Amos E. Woodruff, App’lt, v. Alexander Johnston, Resp’t.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    Judgment—False testimony.
    An action in equity to vacate a judgment on the ground that the successful party gave false testimony, cannot be maintained by the defeated party, or one who was in privity with him.
    Appeal by plaintiff from judgment in favor of defendant, entered upon decision sustaining defendant’s demurrer to complaint.
    The following is the decision of the court below:
    McAdam, J.—The bill demurred to is in equity, to set aside, for fraud and perjury, a judgment had after a trial, in which the jury found for the defendant The rule is that where the remedy is ample at law, chancery will not interfere. Gra. & Wat. on N. T., 1478. Where a party goes into equity to impeach the justice and equity of a verdict, it must be upon grounds which either could not be made available to him at law, or which he was prevented from setting up by fraud, accident, or the wrongful act of the other party, without any negligence or fault on his part. Vilas v. Jones, 1 N. Y., 281, 282. The jurisdiction in one court to vacate, in an independent proceeding, the judgment of another having power to render it, is in its nature so extraordinary as to demand a close adherence to principles and precedents in exercising it. Courts do not exercise it when there has been negligence on the part of the party seeking the relief. That a judgment is final and conclusive of the right or thing which is adj udicated by it is.the rule, and judgments and decrees of a competent court will not be annulled for a suspicion of fraud, or because the party ■complaining may in fact have been unjustly cast in judgment. Smith v. Nelson, 62 N. Y., 288. It would impair the sanctity of judgments, and the faith we repose in them, if they could be set aside in equity upon grounds available upon mere motion addressed to the courts which rendered them. Those courts should have the opportunity of vindicating their own honor and the integrity of their proceedings. Where they are powerless to do this it is time enough for equity to tender its aid. It is settled law (with few exceptions, which do not apply here) that false testimony given by a party in an action at law is not ground for ■equitable relief in chancery. U. S. v. Throckmorton, 98 U. S., 61; The Mayor v. Brady, 115 N. Y., 599; 26 St. Rep., 340; Smith v. Nelson, 62 N. Y., 286; Same v. Lowry, 1 Johns. Ch., 320. There must be a conviction before even a new trial on the ground of perjury will be granted, Holtz v. Schmidt, 44 N. Y. Superior Ct., 327, and no conviction has been had here. Judgments and decrees obtained by fraud or imposition may undoubtedly be annulled in equity, but not by parties to the record who were before the court and heard respecting the matters complained of. Though the plaintiff was not actually a party to the record, his assignee, with his knowledge and approval, was. The plaintiff and the defendant were witnesses, and disagreed as to the material facts, the former testifying one way and the latter the other, and for this conflict (not unusual in the trial of a cause) the plaintiff seeks a new trial of the issues by a cancelation of the judgment, on the ■ground that his testimony was true and that of the defendant false. As no reported case has gone to the extent of affording a disappointed suitor relief in equity on any such ground, it is unnecessary to discuss the special cases or peculiar circumstances under which equitable relief has sometimes been awarded, for they have no application to the case presented. The frauds in those cases were extrinsic or collateral to the matter tried. The issues here have been tried at law and cannot be re-tried in equity. For these reasons, and without considering the other grounds of •demurrer, it is evident the complaint does not state a cause of action, and that the defendant is entitled to judgment on the demurrer, with costs.

      A. E. Woodruff, app’lt in person; David Leventritt, for resp’t.
   Per Curiam.

—The judgment should be affirmed, with costs, upon the opinion of the learned judge at special term.

Freedman, Dugro and Gildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    The Central National Bank of the City of New York, App’lt, v. Leonard D. White et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 5, 1892.)

    'Estoppel—Election op bbmedies.
    Plaintiff made purchases and sales of stocks and securities through, de* fendants as brokers, payments being made by cashier’s checks. The; cashier subsequently absconded with all the securities of plaintiff’s customers, and it was obliged to make them good. It was then discovered that the cashier had been speculating on his own; account, and defendants, being informed of that fact, brought suit against him for a balance due and recovered a portion thereof. In an action to recover the amount of a portion of the cashier’s checks which were claimed to have been used by him in his own speculation, Held, that the action brought by the defendants against the cashier was not such an election to treat him as their customer as would preclude them from insisting that plaintiff was the customer in the transactions in question.
    Appeal from judgment entered upon report of a referee dismissing the complaint.

      Martin & Smith (George A. Strong, of counsel), for app’lt; Edwards & Odell (Walter Edwards, of counsel), for resp’ts.
   Gildersleeve, J.

—The plaintiff, at the times hereinafter mentioned, was, and now is, a national bank, doing business in the-city of Hew-York. In June, 1866, William H. Sandford was its-cashier, and continued as such until July, 1869. The defendants-were, and now are, bankers and brokers in stocks and securities in this city. Between the dates above mentioned plaintiff made purchases and sales of stocks, securities and gold through the defendants. These dealings began prior to 1867, and continued until June, 1869; they were managed and directed by Sandford,. plaintiff's cashier, who gave all orders or directions to the defendants which were brought to defendants’ office by the clerks or messengers of the plaintiff. In the course of said dealings-defendants were constantly receiving cashier’s checks, being checks drawn by W. H. Sandford, cashier, upon the plaintiff. The defendants received in such dealings upwards of one hundred' of such checks, aggregating half a million of dollars. Those checks were immediately deposited by the defendants in their hank, and in the usual course of business presented to and paid by the plaintiff, through the clearing house. Ho question or objection to any of these checks was ever made until the commencement of this action. The plaintiff was in the habit of receiving from, its customers stocks, bonds and securities, which were to be kept subject to their order. Such securities were in -the custody and care of the cashier. On July 1, 1869, Sandford absconded.. He had taken and appropriated to his own use all the stocks and securities. Subsequently the plaintiff was obliged to and did' make good to its customers the -value of such securities. All the cashier’s checks paid to the defendants were entered on the cashier’s account on the ledger of the plaintiff, and on said account there were credits against each indicating that the same had been repaid to the plaintiff. These checks were all actually repaid to the bank, and Sandford’s cashier account was kept good. The account of these dealings on the books of the defendants was; headed “W. H. Sandford, cashier,” at first; subsequently on the ledger the word “ cashier ” was omitted; one account was headed “W. H. Sandford, stock account;” one “ W. H. Sandford, gold account; ” and one account was headed “Central Hational Bank.”' All óf the cashier’s checks paid to defendants were repaid to plaintiff, either by those made against other parties or by moneys paid to plaintiff by Sandford. This action seeks to recover upon fourteen of the checks out of the one hundred paid to defendants as .aforesaid, which have been selected by plaintiff’s counsel after an examination of defendants’ books. It is claimed by the plaintiff that the moneys represented by these cashier’s checks, so paid to the defendants, were for use in Sandford’s private stock speculations, and that defendants knew actually or constructively what ■Sandford was doing.

The action was brought in August, 1869, for money had and received by defendants for the use of the plaintiff. It was first moved for trial in 1887. When the trial was nearly completed, and in April, 1890, plaintiff, by consent of the defendants, amended its complaint, and added a seventh cause of action. In -this it alleges that the defendants had transactions as stockbrokers, in which they received from one W. H. Sandford various sums of money as security for services to be rendered or responsibilities to be incurred, or for stocks to be bought or sold •by them; that said Sandford paid moneys to defendants in the •course of such transactions by his own individual checks, and at -other times by means of checks drawn by him upon the plaintiff .as its cashier. The plaintiff further alleges that such cashier’s -checks could not be rightfully drawn or issued or used by Sand-ford save in the business of the plaintiff. But, notwithstanding this, the defendants received certain cashier’s checks from Sandford in his individual transactions, and passed the same to his credit.

It then sets forth several checks, aggregating $62,521.88, that were received by the defendants. The complaint further alleges that the defendants well knew that Sandford was wrongfully abusing his authority, and was misappropriating moneys of the plaintiff by means of his power and authority as its-‘cashier; and it demands judgment for the said several sums in the various causes •of action set forth, aggregating upwards of $139,000, and for interest thereon for upwards of twenty-one years. The answer of the defendants admits the receipt by them of each of the checks stated and set forth in the complaint, and alleges that each check was so received by them in the transactions had for and on account of, and at the request of the plaintiff. They further .allege that they never knew or suspected that Sandford was dealing on his individual account until after his defalcation had been discovered, and the president of the plaintiff called upon defend.ants and so informed them.

It appears from the evidence that when plaintiff’s president called upon defendants he was permitted to see Sandford’s ac•counts and informed defendants that Sandford had been speculating on his own account. Shortly after receiving this information .from plaintiff’s president the defendants, discovering a certain balance in favor of Sandford individually with other brokers, brought an action against him and recovered about $2,000 by default, upon the theory that the transactions in question were with Sandford individually, and that he was their customer, and :not the bank, the plaintiff herein.

The first position taken by the learned counsel for the plaintiff,, in support of his claim herein, is that this action by defendants-against Sandford, the judgment therein entered, andthe enforcement-of that judgment against Sandford’s individual property, constituted an election by defendants to consider Sandford as their customer in these transactions; that this election was final and conclusive and precludes the defendants from insisting in this action that the plaintiff, and not Sandford, was the customer in these transactions in question. The learned counsel claims that this act of defendants established unalterably the important fact in respect of the-identity of the party with whom the defendants were dealing; that by such act the defendants proclaimed Sandford to be their customer, the sole party with whom they were dealing; and that-such act precludes them from contesting that question' in this case.

We are of opinion that this legal proposition of the learned counsel for the plaintiff cannot be sustained either by principle or by authority The doctrine invoked is “ the Election of Remedies.” Are the defendants, by claiming in this action that the-transactions in question were with the plaintiff, violating any of the well established principles common to questions of election ? We think not, for the reason that there has been no election in this controversy. When the plaintiff’s president gave the defendants-information that induced them to proceed against Sandford, there was a debit balance of some $2,000; for this the defendants certainly had a claim either against Sandford or the bank. Plaintiff’s president told defendants Sandford was the man; therefore, they sued him, and regained a portion of the money. No two-inconsistent courses were then opened to the defendants, one of which they took, and the other of which is the course they now seek to take in this action. The doctrine of the election of remedies is not so elastic as to be stretched and made available beyondt the point of precluding the defendants, having sued Sandford, from proceeding for the remainder of the balance against the plaintiff. Thus far we think it might be utilized, but cannot be said, to create a remedy in favor of the plaintiff which did not before exist. The relation between the bank and the defendants was-fixed before Sandford ran away and plaintiff’s president called upon the defendants. If the dealings has been with the bank, nothing that the plaintiff’s president said to the defendants, and no action taken by the defendants in consequence, could change the existing relations. We cannot give our approval to the proposition that the defendants, by their election, not only waived a claim for $2,000 which they might have urged against the bank, but-also created a claim in the bank’s favor for the amount of fourteen of these cashier’s checks, selected from the hundred checks that the defendants had received during these transactions. We do-not think that any of the numerous cases cited by the learned counsel for the plaintiff satisfactorily support the proposition. They do not go further than to hold that where a plaintiff has-two inconsistent remedies and adopts one of them, the same plaintiff cannot have recourse afterwards to the other.

In Fowler v. Bowery Savings Bank, 113 N. Y., 450; 23 St. Rep., 130, the bank paid money to which plaintiff was entitled to one Finch; on learning this, plaintiff sued Finch for money had and received. Held, by so doing he ratified the act of the bank in paying Finch, and so could not afterwards disaffirm it and sue the bank. In Tuthill v. Wilson, 90 N. Y., 423, which does not bear on the election of remedies, the court having decided the case on other grounds, it was held that the vendor could not enforce his claim against both the principal when discovered, and the agent who contracted in his behalf. In Conrow v. Little, 115 N. Y., 387; 26 St. Rep., 527, plaintiff, finding the vendee had acted fraudulently, sued him as for a debt and seized on attachment the very paper he had sold. Held, that this affirmed the contract of sale, and the defendant, the printer with whom the paper had been left to be printed upon, had and could hold his lien upon it as the vendee’s property. In Powers v. Benedict, 88 N. Y., 605, it was simply held that although an action to re-claim goods sold disaffirmed the contract of sale, yet, still, if plaintiff only regains a portion, he may still follow the vendee for the balance of their value. In Moller v. Tuska, 87 N. Y., 166, which was another case where plaintiff sued to regain possession of property, rescinding the sale, it was held that this was an election and prevented their making any claim against the vendee as such; in this case they followed the property in the hands of a fraudulent transferee from the vendee. In Fields v. Bland, 81 N. Y., 239, it was held that the plaintiff, having taken a confession of judgment for goods sold and delivered, the judgment being confessed for the value of such goods, could not thereafter allege that the property, the same goods, belonged to him. In Hughes v. Vermont Company, 72 N. Y., 207, plaintiff brought an action in Vermont, claiming damages as for a conversion of his alleged stock, the company-having refused to recognize him as a stockholder. Subsequently he brought this action, claiming dividends on the same stock. Held, he had elected his remedy and treated the stock as converted, and he could not now sue, alleging ownership.

In Wright v. Wright, 72 N. Y., 149, plaintiff and defendant were heirs and next of kin of J., of whose estate defendant was administrator. Plaintiff drew two drafts on defendant, which defendant paid, and on an accounting as administrator he credited himself with their amount as payments to plaintiff on account of his distributive share. Plaintiff brought this action for an account of the rent of real estate collected by the defendant Defendant set up the sum paid on these two drafts as a counterclaim. Held; he had elected to consider them as paid out of the personalty and he could not apply them now to the realty. In Dinsmore v. Duncan, 57 N. Y., 573, an action by an express company for conversion of a United States treasury note, it was held that an indorsement by the owner to the secretary of the treasury for redemption destroyed its negotiability. That is all there is in this case; the doctrine of election is discussed by Dwight, commissioner, who holds that the endorsement was an election to convert the note into bonds so that its negotiability was destroyed. In the case of Morris v. Rexford, 18 N. Y., 552, an action for goods sold.and delivered, plaintiff had before this suit brought an action of replevin and retaken the goods. Held, this was an election of his remedy and the present action could not be maintained. In Thompson v. Fry, 51 Hun, 296; 21 St. Rep., 95, a case submitted under § 1279 of the Code, the controversy was whether plaintiff, as assignee under a voluntary assignment in Ohio, was entitled to certain goods which had subsequently been attached by the defendant. Defendant had proved his claim under the assignment. Held, that he, at least, had accepted and was bound by the assignment.

It will be seen that none of the cases above referred to, cited by the counsel for the appellant, sustains the proposition which he seeks to establish in this case.

This question being disposed of adversely to the plaintiff, it remains to be seen whether or not the plaintiff established by the original facts that defendants had been dealing with Sandford as an individual. We think the findings of fact by the learned referee are amply supported by the evidence and fully warrant the decision he made. There are no exceptions to the admission or exclusion of evidence. The referee’s conclusions upon the whole case, and the judgment entered in pursuance thereof, are correct

The judgment appealed from is affirmed, with costs.

Freedman and Dugro, JJ., concur.


text:
    Isidor Richmond, by Guardian, Resp’t, v. The Second Avenue Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Bill of particulars—Negligence.
    In an action for injuries alleged to have been caused by the plaintiffs being precipitated beneath the wheels of defendant’s car by reason of the carelessness and recklessness of the persons in charge thereof, a denial of a motion to require a bill of particulars of the alleged careless and reckless acts is proper.
    Appeal from order denying motion for a bill of particulars.
    Action for injuries alleged to have been caused by the negligence of defendant’s servants. The complaint alleged that while plaintiff was riding on one of defendant’s cars he was precipitated therefrom by the gross carelessness and recklessness of the persons in charge of the car.
    That, as the result of said carelessness, recklessness and negligence of the said employees of the said defendant, the plaintiff was thrown and precipitated from the said car, and was hurled beneath one of its front wheels, which passed over his right leg, and so greatly crushed, mangled and lacerated it that, by reason thereof, it' became necessary to amputate, on the same day, the said leg just below the knee joint
    The moving affidavit was as follows : That defendant intends in good faith to defend this action. That neither the defendant nor its officers nor agents know of any negligence such as is alleged in the fourth and sixth paragraphs of the complaint, and that the defendant cannot properly answer or prepare for trial herein unless it knows what acts, or omissions to act, the plaintiff claims or proposes to claim, on the trial of this action, constituted the alleged negligence of the defendant’s employees, and also how it is claimed that such acts or omissions to act caused the plaintiff to be thrown and precipitated from one of defendant’s cars. That this deponent has made diligent inquiry as to any act of negligence on the part of the defendant or its employees, and has been unable to procure - any clue by which he is able to even guess at the acts or omissions to act, such as it will be necessary for the plaintiff to prove on the trial of this action in support of the very general allegations in his complaint, wherein he merely states that, by reason of the gross negligence of employees of the defendant, “ the plaintiff was thrown and precipitated from the said car and was hurled beneath one of its front wheels, which passed over his right leg, and so greatly crushed, mangled and lacerated it that, by reason thereof, it became necessary to amputate, on the same day, the said leg just below the knee joint” That in the complaint there is no fact alleged which shows any negligence on the part of the defendant or its employees, unless it is held by this honorable court that the allegation that the defendant was guilty of negligence, whereby the plaintiff was thrown down, is an allegation of fact, and not the allegation of a conclusion of law from facts not stated.

      Robert Sewell, for app’lt; Maurice Untermyer, for resp’t.
   Per Curiam.

—We see no reason for interfering with the order of the court below. Order affirmed, with ten dollars costs and disbursements.

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


text:
    In the Matter of Proving the Last Will of Rose Ann Curry, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    EXBCUTOBS AMD ADMINISTEATOBS—COSTS.
    Where an executor refuses to pay the costs of prohate directed to be paid out of the estate, he may properly be charged personally with the costs of a motion to compel such payment.
    Appeal from an order of the surrogate.

      Arthur J. Delaney, for app’lt; Robert W. Gilbert, for resp’t.
   Per Curiam.

—The decree admitting the will to probate in this proceeding directed the executor to pay a certain sum for costs out of the estate. The executor having refused to pay said costs, a motion was made to compel him to pay the same and ten dollars costs of motion; which costs of motion were to be charged against him personally; and this motion was granted by the surrogate, directing the executor to pay these costs out of the estate, and the ten dollars personally.

There was no direction made by the surrogate that any part of the original costs mentioned in the decree should be paid by the executor personally, the ten dollars costs being all that were charged against him personally, as is plain by a reading of the order. The order, therefore, should be affirmed, with ten dollars costs and disbursements.

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


text:
    In the Matter of the Application of Arthur L. Sardy.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Attorneys—Summary proceedings against.
    On a summary proceeding to compel an attorney to pay over money alleged to have been received by him in a professional capacity, where the relation of attorney and client is denied and it appears from the papers that he was employed as a broker to sell real estate, and failing that to procure a loan on bond and mortgage, the application is properly denied and the applicant left to his remedy at law.
    Appeal from order denying motion to compel an attorney to pay over money received by him in a professional capacity.
    The following affidavits were read on the hearing at special term.
    “ Arthur L. Sardy, being duly sworn, deposes and says that John Todhunter, an attorney of the supreme court of this state, having his office at No. 52 Wall street, was engaged by me some months ago to sell for me certain property I own at Tarrytown, Westchester county, for an agreed commission upon the total amount for which the property should sell to be paid said Tod-hunter as soon as such sale was effected; and he is still acting as my representative in this respect. Mr. Todhunter had heretofore obtained for me upon said property a loan of $2,500, secured by a bond and mortgage held by Jane Arbuthnut, and I engaged Mr. Todhunter on the 25th day of January, 1892, in a professional capacity, to obtain for me a further loan of $1,000 upon the same ■property; and said Jane Arbuthnut agreed to advance such sum, talcing a new bond and mortgage of $3,500, and canceling the old mortgage. On the 27th day of January, 1892, I executed such new bond and mortgage, and delivered them to him. He told me that Mrs. Arbuthnut was sick, but that I could have the money in a few days. On February 10th I again called at Mr. Todhunter’s office, and was informed by his clerk that Mrs. Arbuthnut was still very ill, and that I could not get the money until next Saturday or Monday. This was on Wednesday. As two weeks had elapsed since I delivered the bond and mortgage, it appeared strange to me that Mrs. Arbuthnut was so ill that she could not sign her check for $1,000, and I went to Elmsford at once, where her agent has his office, and I was informed by him that Mr. Todhunter had been there on the 8th day of February, and that the check for the $1,000 had been given him, and Mr. Tod-hunter obtained that the check should be made to his order, instead of mine, as the agent desired, upon the statement that I had left the city, and would .not return for some time. He told me that Mr. Todhunter had delivered to him the bond and mortgage on the same daj?. I at once drove to Mr. Todhunter’s residence at Tarrytown, and demanded the money, and he admitted to me that he had received $964.14, and had deposited the check in his bank. He told me that he could not give me the money, as there were some checks outstanding which might be presented at his bank, and he did not care to have his account overdrawn. He, however, gave me a check for $650, and promised me the balance the following morning at his office at 9 o’clock. He presented to me an account showing a balance due me of $284.14, which he admitted to be due me. I went to his office on the 11th of February at the hour indicated, and received there a letter of which the annexed is a true copy. I at once went to my attorney, Mr. P. M. Brown, and told him that it was my opinion that as Mr. Todhunter knew I would have to leave the city for the west, to be gone some time, be intended to hold the money until I was out of the city, when he might take his own time to pay same to me. The total amount received by Mr. Todhunter was $964.14, out of which he was entitled, as per our agreement, in full for fees and commissions, the sum of $20, leaving a balance due me of $294.14. He claims, however, $10 for drawing the papers, whereas it was distinctly understood between us that this item should be included in his commission, and he simply claims to owe me $284.14. I have not withdrawn from his hands the sale of the said property. There was no agreement whatever that I should pay any of the expenses concerning said sale, but that he should be entitled to a commission as soon as such sale was effected. Although Mr. Todhunter is not entitled to said item of $10, I would waive same in case a claim for it would result in my being exposed to the delay of an action at law, and the probability of my being unable to collect from him.
    An affidavit of Pierre M. Brown which stated that “ said Tod-hunter has admitted to me that there was due from him to said Sardy $284.14, and that he would have paid said sum in a few days if said Sardy had waited ; but, since there was to be a fight, he proposed to delay the matter as much as possible.”
    “ John Todhunter, being duly sworn, deposes and says that the relation of attorney and client has never existed between himself and said Arthur L. Sardy, but that the only relations that have ever existed between him and said Sardy have been as follows: Deponent has for about a year or more been engaged in endeavoring as a broker to negotiate the sale of certain unimproved real estate located at Tarry town Heights, in .Westchester county, said real estate belonging to said Sardy ; and deponent has been put to considerable expense, and has devoted much time, in and about the same. Meantime said Sardy recently requested deponent to negotiate a loan upon bond secured by mortgage of said property; and accordingly deponent, on or about January 14,1892, secured a loan of two thousand five hundred dollars ($2,500) upon the same, which said sum, less brokerage, was duly handed over by deponent to said Sardy. That on or about the 27th day of January, said Sardy executed an additional bond and mortgage for $1,000 upon said property in favor of one Jane Arbuthput, the total amount of said loan being the sum of three thousand five hundred dollars ($3,500), and left the said last-mentioned bond and mortgage in the hands of deponent with instructions to deliver the same over to the mortgagee upon deponent's receipt from said mortgagee of the additional one thousand dollars ($1,000), the said Sardy stating to deponent at the time that he was going west, but that his son, who resided in or near the city of New York, would call at deponent’s office from time to time, in order to ascertain if deponent had received the money, as the mortgagee at the time was confined to the house, and unable to transact business. That from the 27th day of January, 1892, to the 6th day of February, 1892, said Sardy frequently called on deponent at his office to.make inquiries as to how the matter was progressing, and on the last day mentioned repeated that he was on that or the following day going to the west, but that his son would call, and that he had given or would give him written authority to receive the money. That on the 8th day of February, 1892, deponent delivered said bond and mortgage to the agent of the mortgagee, and received the sum of nine hundred and sixty four 14-100 dollars, the same being one thousand ($1,000) dollars, less the commissions of the broker for the mortgagee. Deponent thereupon deposited the check in bank, and repaired to his office, No. 52 Wall street, New York city. Deponent was also in his office during the-entire day of February 11th, but neither did said Sardy nor any representative of his "call. Upon the following day deponent was so indisposed as to be unable to leave his residence in Tarrytown, he having been in a physician’s care for several months. That said Sardy on that day called upon deponent at his house, in order to ascertain how the matter stood, when deponent expressed surprise at seeing him, as deponent, believed that the said Sardy had already gone for the west. Deponent thereupon stated that the loan had been consummated, and that the check had been deposited, but deponent did not know if same had as yet been collected or not. Deponent denies that he said that any checks were outstanding, but deponent did say that, as his check book was at his office, he did not know what his balance was, provided the check so deposited had not been collected. Deponent said, however,- that he would let him have the six hundred and fifty dollars ($650) by check upon his (deponent’s) local bank in Tarrytown, which lie "would cash at once, and that on the following day, if deponent was well enough to go to his office, he would adjust any difference that might exist. Deponent denies that he presented any account to said Sardy. Deponent denies in the most emphatic manner that he admitted to said Sardy that he had used all or any part of the money for his own purposes, as insinuated in Sardy’s pretended affidavit, and it was not the fact that deponent converted to his own use any of said money of said Sardy. Upon the following day deponent went to the city, but was obliged to stop off the elevated train. in order to attend to a matter which detained him some time, but, in order not to disappoint said Sardy, deponent sent him a note, which was written at an elevated station, and therefore a copy of which was not kept by deponent, stating that he could not attend to the matter until the following day, which letter said Sardy states in his moving papers is annexed thereto, but no copy thereof was ever served upon deponent Deponent at about 12 o’clock on said 11th day of February, 1892, arrived at his office, where he ascertained from his clerk that said Sardy had preceded him, and bad acted in a very boisterous and violent manner. Deponent was served with the copy order to show cause, and what said Sardy claimed to be an affidavit, in the afternoon of the same day, which order was dismissed for irregularity. Deponent further says that no demand of any kind was ever made upon him by said Sardy, or by any one in his behalf. Deponent further says that said Sardy never retained deponent in any professional capacity whatever, but that the only employment was that of agent for the negotiation of a sale and mortgage of said Sardy’s property. That by reason of said Sardy having resorted to the summary illegal methods of endeavoring to extort moneys from deponent, as this proceeding-shows, much of deponent’s labor in endeavoring to effect a sale of his property has been frustrated, and much of deponent’s time and money have been wasted, and therefore deponent is entitled to commissions as though said sale was actually made by deponent, and that a reasonable sum be obtained, by suit or otherwise, for deponent’s time and trouble in advertising said property, and in laboring to dispose of said property to the advantage of said Sardy. That during the time that deponent has had charge of said property he has taken several people to look at the same, and has employed agents to show said property, and several of them have been favorably impressed with said property, and that deponent has heretofore been in strong hopes of selling said property,- to the great pecuniary advantage of said Sardy. * * * ”

      Alfred A. Gardner, for app’lt; John Todhunter, for resp’t.
   Per Curiam.

—An application was made in this matter to compel the respondent to pay over moneys which it was alleged he had received in a professional capacity. It was claimed by the moving party that the respondent was employed by him to sell certain real estate in "Westchester county for an agreed commission and at the total amount for which the property would sell; that the respondent procured a loan to be made upon the property, for which a bond and mortgage were given, and that subsequently and while acting in a professional capacity he obtained for the petitioner another loan on the same property for the sum of $1,000, and a mortgage was given for that amount; that of the $1,000, $650 were paid to the petitioner, and that then the respondent presented an account to the petitioner showing a balance due of $284.14 which has been demanded and has not been paid.

The respondent, in answer to this petition, claims that he was not acting in a professional capacity at all, but was employed merely as a broker to negotiate the sale of the Westchester property, and failing that, that he did succeed in raising money upon mortgage for the petitioner; and he denies that any demand was ever made upon him for the balance which it is now insisted he should turn over to the petitioner.

The merits of the application were presented to the court below upon the petition of Mr. "Sardy, and upon an affidavit of one Brown to the effect that Todhunter had admitted that the money claimed had not been turned over, and upon the answering affidavit of the respondent. Upon these papers the court below denied the motion to compel the respondent to pay over the money referred to in the petition, and held that the moving party should be left to his action at law. This disposition we think was proper, and the order should therefore be affirmed, with ten dollars costs and disbursements.

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


author: Van Brunt, P. J.

text:
    Charles A. Dunn, App’lt, v. George H. Lewis, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Venue—Change oe.
    Where the claim that plaintiff is a resident of the county where the action is brought is supported only by his own affidavit, which states a conclusion and not facts, and it appears that the convenience of witnesses will be promoted by changing the venue to the county in which the principal transactions took place, such change should be granted.
    Appeal from order changing the place of trial from the county of New York to the county of Erie
    The principal transactions involved in the litigation took place in Brie county.

      W. F. Kip, for app’lt; Porter Norton, for resp’t.
   Van Brunt, P. J.

—We see no reason for interfering with the order made by the court below.

. The claim that the plaintiff is a resident of the county of New York is unsupported by any evidence except his own affidavit, which states a conclusion and not facts, and which does not by any means meet the allegations contained in the moving affidavits.

Furthermore, the granting of the motion seems to have been justified upon the ground of the convenience of witnesses. The affidavits upon the part of the defendant show the necessity for the examination of a number of witnesses who are necessary and material to the defense. The answering affidavits upon the part of the plaintiff show that there has been, as is usual in cases of this kind, a decidedly unnecessary multiplication of the number of witnesses which it is claimed it is necessary to be examined.

Under all the circumstances of the case we think that the county of Brie was the proper forum in which the action should be tried; and that, therefore, the court below was correct in granting the motion.

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

O’Brien, J., concurs.


text:
    In the Matter of the Application of James J. Whalen.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    ■Criminal law—Commutation of sentence.
    Petitioner was convicted in 1882. Subsequent to the passage of chapter 21, Laws 1886, the governor commuted his sentence on condition that if he were convicted of another offense during the remainder of the original term, the time so commuted should be added to the imprisonment under the new sentence. Having been so convicted and served out the new sentence, he sued out a writ of habeas corpus, which was dismissed. Held, no error; that he had no vested right to commutation; that irrespective of the act of 1886, the governor had unlimited power to pardon or commute, and the provisions of that act were no restriction upon that power, and if he chose to act in pursuance of the provisions of that act he had a right to do so.
    Appeal from order dismissing writ of habeas corpus. The following is the opinion of the court below:
    Lawrence, J.—It was decided by Mr. Justice Edmonds in the case of People v. Potter, 1 Park., 47, that the power conferred ■on the executive, by the' constitution of 1821, to grant pardons, included the power of granting a conditional pardon, and that on a breach of the condition the pardon became void, and the criminal might be remanded on his original sentence; also that such power could be exercised by the court in which the party was convicted, or by any court of superior criminal jurisdiction. With this decision before me, it is unnecessary for me to trace the power of the executive to grant conditional pardons back to colonial law, and the constitution of 1777, by which the common law relating to that subject became merged in the constitution. By the ■constitution of 1846, if any doubt upon the subject as to the right cf the governor to grant a conditional pardon could have theretofore existed, such doubt was removed. By § 5 of article 4 of that instrument it is provided that “ the governor shall have the power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law, relative to the manner of applying for pardons.” The acts of 1862, ch. 417; 1863, ch. 415; 1864, ch. 321; 1874, ch. 451; 1879, ch. 373, and 1886, ch. 21, were passed merely to carry out this provision of the constitution of 1846. As I stated to counsel upon the argument, a justice of this court, sitting at chambers, will never pronounce an act of the legislature unconstitutional, unless its alleged conflict with the organic law'is so apparent as to be seen at a glance. In this case, so far from any such conflict between the statute and the constitution being apparent, it seems to me that the act and the constitution are perfectly harmonious, and that the position assumed by the counsel for the petitioner is untenable. Even if there were any such conflict, the act must give way to the provision of the constitution, which expressly vests the governor of the state with power to grant a conditional pardon, and it appears from the papers submitted to me that the petitioner in this case accepted the commutation which he received under his first conviction, under the condition “ that, if during the period between the date of his discharge by reason of such commutation and the date of the expiration of the full term for which he was sentenced he should be convicted of any felony, he should, in addition to the penalty which might be imposed for such felony committed in the interval aforesaid, be compelled to serve in the prison or penitentiary in which he may be confined, for the felony for which he was so convicted, the remainder of the term, without commutation, which he would have been compelled to serve but for this commutation of his sentence.” The prisoner having received his conditional pardon or commutation of sentence under •those terms, and the governor having exercised the power conferred upon him by article 4, § 5 of the constitution heretofore referred to in granting such commutation, the petitioner cannot now seek to repudiate that condition, and ask to be discharged from imprisonment.
    \ The facts in this case are without dispute, and it is shown that the prisoner, under the name of James Randolph, was sentenced to Sing Sing prison on the 30th of June, 1882, and was there received July 1, 1882, having been sentenced to serve a term of seven years at hard labor by Judge Grildersleeve in the court of general sessions of the county of New York, for the crime of robbery in the first degree. He was discharged from prison on the 31st of March, 1887, his term of imprisonment having been commuted by the governor of the state for good behavior to 'four years and nine months, thereby making a reduction of his original sentence of two years and three months ; such discharge, as already stated, having been granted upon the condition above recited. Prior to the expiration of the seven years of his original term of sentence, and on the 19th of December, 1888, he was again convicted and sentenced in the court of general sessions by Judge Cowing to serve a term of two years in the Sing Sing prison for the crime of burglary in the third degree, and was received at the prison December 21, 1888. The two-years term under the latter sentence has expired, and thereupon, under the conditions of the pardon or commutation granted bv the governor, he became liable to serve the remaining two years and three months of the unexpired portion of the term for which he was sentenced under his original conviction. Without enlarging further upon the subject, I am, therefore, of the opinion that the return made by the warden and agent of Sing Sing prison shows That the petitioner is now lawfully detained by him under the judgment of a court of competent jurisdiction, and that, therefore, the writs heretofore granted should be dismissed, and the prisoner remanded.

      T. J. Keller, for app’lt; J. W. Hogan, for resp’t.
   Van Brunt, P. J.

—The appellant was sentenced to the states prison on the 30th of June, 1882, for a term of seven years, and on the 31st of March, 1887, having earned two years and three months 'commutation of sentence for his good conduct, the governor commuted his sentence, annexing a condition to the effect that if, during the period between the date of his discharge by reason of such commutation and the date of the expiration of the full term for which he was sentenced, the prisoner should be convicted of any felony he should, in addition to the penalty which should be imposed for said felony, be compelled to serve in the state prison or penitentiary in which he may be confined for the felony for which he was so convicted the remainder of the term without commutation which he would have been compelled to serve but for the commutation of his sentence.

On the 19th of December, 1888, the prisoner was again convicted and sentenced for the term of two years to state prison for the crime of burglary in the third degree, which time would expire without commutation on the 21st of December, 1890. The defendant was not discharged at that time, it being claimed that he, having been re-sentenced for a new offense within the period of two years and three months from his said commutation, must serve during said term of two years and three months, in addition to the new sentence of two years, as prescribed by the Laws of 1886, chapter 21, § 14. A writ of habeas corpus was thereupon sued out, which was dismissed by the court below, and from the order thereupon entered this appeal is taken.

It might not be at all necessary to add anything to the very satisfactory opinion rendered by the court below, were it not for the claim of the appellant, that one of the questions involved in this appeal was not touched upon. It is claimed that two questions are involved. First. Is the law of 1886 constitutional"? And secondly. If so, does it apply to the present case ? It is admitted that the "judge below passed upon the constitutionality of the law. But it is urged that he did not pass upon the question of its application to the present; case. Upon this point, therefore, it may be necessary to say a few words.

It appears upon an examination of the statutes that in 1862 the system of commutation was inaugurated in this state, and that it was provided that every convict confined in any state prison or penitentiary in the state, under sentence on conviction for felony, might earn for himself a commutation or diminution of the term of his sentence, and the governor might thereupon in his discretion direct the abatement or deduction of the term of sentence of said convict of the number of days of commutation or diminution thereof which said convict should have earned. In 1863 an act was passed which was substantially a re-enactment, except that it extended the time of commutation, the discretionary power remaining in the executive as before. In 1864 a more liberal provision for prisoners’ good conduct was made, the discretionary power still vested in the governor, and so on down to the time of the prisoner’s conviction and sentence. Then in 1886, after the prisoner had entered upon the service of the first term and prior to the time of his discharge under said sentence, the act was passed under which the governor commuted the sentence in ■question.

It is to be observed that under the acts prior to the act of 1886, it was entirely discretionary with' the governor whether he should or should not act upon the recommendation of commutation; and therefore the prisoner had no vested right in his commutation at the ti me of the passage of the law of 1886. It is conceded and not necessary to discuss that question here, that the governor, in the exercise of his pardoning power, has the right to affix any terms to the pardon which he may see fit; and therefore, if under the previous acts the governor had attached the condition in the exercise of his pardoning power which he did exercise to the commutation of the petitioner, it would have been entirely authorized and within his discretion. Now the petitioner, having no vested right in this commutation, if he is not satisfied with the condition upon which it is granted, need not accept it. By the act of 1886 he was not deprived of anything to which he had been previously entitled, only it was, perhaps, made more obligatory upon the governor to act than had been the case by the previous legislation. Now, if the legislature had no power to call upon the governor to act under these circumstances in the commutation of this sentence, then the result would be that if the governor did not act the prisoner could not have been discharged, and if the governor did act it is conceded he had a right to impose such conditions as he might see fit

Assuming the law of 1886 to be unconstitutional and inapplicable to the petitioner’s case, then the governor would be acting under the previous laws, where the discretion rested absolutely with him whether he would commute the sentence or not, and such being the case he had a right to impose such conditions as he might see fit. Irrespective of the act of 1886, the power of the governor to commute or pardon was unlimited; and the provisions of the act in question were no restriction upon that power. And if the governor assumed to act in pursuance of the provisions contained in that act, it was a matter entirely within his own volition, and not at all compulsory upon him.

Therefore, it is apparent that the petitioner had no vested right in anything, and the act of 1886 took nothing away from him, and did nothing in any respect to curtail the constitutional powers of the executive. It is difficult to see, therefore, how the petitioner has suffered any wrong, and the order appealed from should be affirmed, with costs.

O’Brien and Patterson, JJ., concur.


author:
Barrett, J. Van Brunt, P. J.
      O’Brien, J. Van Brunt, P. J.

text:
    Henry Heywood et al., Resp’ts, v. William H. Thacher, Assignee, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Appeal—Eeahqtoibítt.
    Where an appeal has been decided after a close examination of the record and the question involved, a reargnment will not be ordered because of a decision not brought to the attention of the court on the argument,' and which is not clearly in point, or because of facts not appearing on the record.
    (O’BniEir, J., dissents.)

      "Motion for a re-argument. See ante, 1.

      H. R. Bayne, for the assignee, app’lt; A. Kling, for resp’ts.
   Barrett, J.

—The case of Mandeville v. Avery, 124 N. Y., 376, 36 St. Rep, 338, was not brought to the attention of the court upon the argument of this appeal. But with this case before us the conclusion arrived at would have been the same. The distinction between the two cases is pointed out by the assignee’s counsel. That distinction is a clear one. The effect of the judgment in this case was to set aside the assignment as against the plaintiffs, and against them only. No accounting which the court could order in this action would have been binding upon creditors who were not parties to the action. If, for instance, the assignee had been successful upon such accounting in sustaining his claims for the items disallowed, the order in his favor would not have barred other creditors. These other creditors could have questioned these very items in their cases. The rule should operate both ways, and no final decree should be made with reference to the estate generally except such as would bind all parties and release the assignee.

In the case of a single plaintiff proceeding solely on his own account, the court can direct such an accounting as will bind both parties to the record and as may be needful to procure satisfaction of the particular claim sought to be recovered. It may well be doubted whether the court has authority to proceed further in this class of cases without bringing in all other parties in interest or without notice to them.

Our construction of the decree in this case removes all embarrassment on this head and avoids all question as to its validity. Whatever may have been the duty of the referee, the power of the court upon the case being again brought before it to make such final order or judgment as is appropriate cannot be doubted.

We think the order already directed by the general term was, in substance, the order which the court at special term should have made when the case was thus before it upon the entire record, including the decree and the referee’s report, and the motion for a re-argument should, therefore, be denied.

Van Brunt, P. J.

—I concur in the result of the foregoing opinion, that the motion for re-argument should be denied. The decision made was arrived at with deliberation, and after a close examination of the record and question involved. It may be true that in the decision rendered assumptions were indulged in which were not justified by the record, as seems to be done in the foregoing opinion, but nothing in the record was overlooked by the learned j ustices who concurred in the prevailing opinion. It was deliberately decided that upon an appeal from an order confirming a referee’s report, appointed by a judgment, where a referee had acted strictly pursuant to the directions of the judgment without any appeal having been taken therefrom, this court had the right to reverse the referee’s report and the judgment in a material portion thereof, no portion of the record upon which such judgment was founded being before this court

O’Brien, J.

(dissenting).—The rule of law, however logical, which prevents an assignee from being credited with amounts paid out in good faith for counsel fees and other expenses in his effort to uphold an assignment which has been attacked by creditors,- and subsequently set aside on the ground of fraud, has always seemed to me to be a harsh one. Whereas in this case it would appear that no person other than the plaintiff was interested in the result of the action, and that an amount sufficient to fully compensate him was in the hands of the receiver. I was, therefore, of opinion that the result reached by Mr. Justice Barrett would serve the ends of exact justice.

Our attention is now called to the case of Mandeville v. Avery, 124 N. Y., 376; 36 St. Rep., 338, for the first time; and, as stated by Mr. Justice Barrett, it was not brought to the attention of the court upon the argument of the appeal. That case is seemingly authority for the view that a receiver in actions prosecuted to set aside transfers of property, made by a debtor to defraud creditors, represents the creditors and possesses, the same rights as the creditor, under whose judgments he was appointed, would himself have had.

This case, together with the facts now appearing, that the suit was brought not only on behalf of the plaintiff, but that there are other judgment creditors who take the same position hostile to the assignment, and whose claims may not be secured by the amount now in the hands of the receiver, it seems to me presents a case for a re-argument, to the end that all the facts may be again presented, and the bearing of Mandeville v. Avery thereon determined.

I am therefore of opinion that the motion for a re-argument should be granted.

Van Brunt, P. J.

—Upon reading the above memorandum I am at a loss to understand how facts appearing outside of the appeal book can be considered upon a motion for re-argument. The new argument would be upon the facts disclosed by record only if a re-argument is ordered upon extrinsic facts. The re-argument would be ordered upon one record, and the re-argument heard upon another.