text:
    James H. Sullivan, Pl'ff, v. The Mayor, etc., of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Attorneys—Lien on papers—Assignment.
    It is a breach of trust for an attorney to allow the papers of his client to go out of his possession, and where an attorney assigns his claim for services," accompanied by a delivery of the papers in the case, the assignee cannot hold the papers as security for any amount advanced to the attorney.
    3. Same.
    Plaintiff’s attorney assigned his claim for services together with the papers to appellant before his death. On motion the appellant was directed to deliver said papers to the substituted attorneys on payment of a sum which appellant claimed to be less than that due the attorney. Held, that appellant had no ground for complaint.
    Appeal by Ella S. Webster from order directing the delivery of papers.
    John H. Strahan, the former attorney for plaintiff, prior to his death assigned to appellant his claim for services together with the papers in the action, and she claims a lien on such papers for the amount of such claim.

      J. H. Bowers, for app’lt; L. L. Kellogg, for resp’t.
   Per Curiam.

Although the order to show cause and answering affidavits, upon which this motion was made, are not printed in the record, it would appear from the recitals in the order appealed from that this is a proceeding commenced by an order to show cause, requiring one Ella S. Webster, as assignee of John H. Strahan, the former attorney for the plaintiff in this action, to show cause why she should not deliver up, to the attorneys who were substituted as the attorneys in place of said Strahan, the pleadings and all papers in this action, which were in the possession of said Ella S. Webster; that on the return of that order to show cause there was an order of reference made to a referee to determine the amount due to said Strahan or his assignee, the said Webster, from the plaintiff, and that the said Webster claimed to have a lien upon the papers and exhibits belonging to the plaintiff which were to Ibe used in the prosecution of the action, for the amount due said Strahan as attorney therein, by virtue of an assignment by Strahan to her of his claim for services against the plaintiff, and the delivery by Strahan to her of the papers held as plaintiff’s attorney ; and the order appealed from directs the said Webster to deliver to the substituted attorneys for plaintiff these papers and exhibits, upon the payment to her of the amount found due by the referee from.plaintiff to Strahan for the services that he had rendered to the plaintiff as his attorney in this action. The appellant appeals from the order on the ground that the amount allowed by the referee is less than the amount actually due to-' said Strahan by the plaintiff, and the remarkable spectacle is presented of a person, not an attorney, claiming to hold the-papers and exhibits in a lawsuit, that had been intrusted by a client, a party to the action, to his attorney for the purpose of prosecuting the action, and where such third person claims to • hold such papers and exhibits by transfer or assignment from the attorney.

Although the point that a lien upon papers in the hands of the-attorney for the compensation due him for services rendered in an action is one strictly personal to the attorney, and cannot be-transferred by him to a third party, was not raised upon this appeal, it seems to us that we should not allow it to go unnoticed. The theory upon which this lien is claimed by the appellant, would seem to be that a lien upon papers of a client, submitted to his attorney, is substantially like a lien upon a bale of goods-that has been pledged to secure the payment of a sum of money, and that an attorney holding such papers of his client occupies-merely the position of a bailee. We think it clear that Such relation did not exist between Mr. Strahan and his client.

The relation between a client and his attorney is one of trust and confidence, and it is a violation of that trust for an attorney, in any way, to divulge any of the information given to him by his client, or allow any of the papers or documents held by him as attorney to go out of his possession; and when Mr. Strahan attempted to deliver to the appellant these papers in this-suit, he committed a breach of trust such as would justify the-plaintiff’s terminating the relation that existed between them; and we incline to the opinion that it would prevent him from recovering any compensation for the services that he had rendered, and that the moment that the client discovered that his attorney had been guilty of this breach of trust, he had the right to demand the return of the papers from the person to whom they had been delivered, and such person had no right to them as security for anything she had advanced to the attorney.

If, however, the appellant, as assignee of Strahan, has any claim against this plaintiff, she can enforce such demand by action;. but those papers are the papers of the plaintiff, and he is entitled to their possession, and this attorney had no power, by any act-of his, to transfer them to the appellant, and thus prevent the plaintiff from obtaining possession of them. The plaintiff, however, does not appeal from this order. It is the assignee of the attorney only who appeals, and we are of the clear opinion that the appellant has no ground to complain of the order appealed from.

The order should, therefore, be affirmed, with ten dollars costs- and disbursements, but without prejudice to right of appellant, to bring an action to recover the sum, if any, which may be due to her as assignee of Strahan.

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


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Henry A. Gildersleeve, Resp't, v. G. H. Lester et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Corporations—Trustees—Parties.
    Under §§ 1781 and 1782 of the Code, any one of the directors of a corporation may bring an action against an officer of the corporation to compel him to pay to it money which he has acquired to himself in violation of his duty.
    2. Same—Misconduct op officer.
    Such action is proper where a trustee appropriates the corporation’s property, transferred to him as a creditor of the corporation by resolution, and ratified by a resolution carried by his own vote.
    Appeal from, judgment in favor of plaintiff entered upon decision by the court.

      Louis C. Waehner, for app’lts; Palmer & Boothby, for resp’t.
   Ingraham, J.

This action is brought by plaintiff as a trustee of the Hepera Park Land Company to compel the defendants to account for their official conduct in the management and disposition of the funds and property of the said corporation committed to their charge, and to compel the defendant Lester to pay to the corporation of which he was trustee any money and the value of any property which he has acquired himself, or transferred to others, or lost or wasted by a violation of his duty, under §§ 1781 and 1782 of the Code.- The appellants strenuously insisted upon this appeal, as they did in the court below, that the plaintiff as trustee had no power to bring this action.

The action is brought under § 1781 of the Code, which provides that an action may be maintained against any one or more trustees, directors, managers, or other officers of the corporation to procure a judgment compelling them to pay to the corporation which they represent, or to its creditors, any money and the value of any property which they have acquired to themselves, or transferred to others, or lost or wasted by the violation of their duties. And by § 1782 it is provided that such an action may be brought by a trustee, director, manager, or other officer of the corporation.

In the case of People v. Ballard, 134 N. Y., 269; 48 St Rep., 166, the court of appeals held that such an action could be maintained by the attorney-general on behalf of the people to compel a trustee to account to the corporation; and the same section that authorizes an action to be brought by the attorney-general on behalf of the people authorizes it to be brought by one trustee or director of the corporation. We think, applying the principle determined in that case, that any one of the directors can bring this action. The plaintiff does not ask to recover any judgment, but does ask that a trustee be compelled to account to the corporation or to its creditors or stockholders for money or property of the corporation that such trustee has illegally diverted from the corporate purposes. The trustee is simply named as an officer of the company to ask the interpdsition of the court to compel a de» faulting trustee to restore to the corporation of which he was trustee property of the corporation which by his breach of trust or wrongful act has been lost to the corporation. The court, thus having jurisdiction of the subject matter of the action and of the parties, has power to make such judgment as was necessary to protect the corporation or its stockholders, and for .that purpose has, under § 1810 of the Code, power to appoint a receiver of the corporation in an action brought under the provisions of the sections before cited, and by its judgment compel such defaulting trustee to account to such receiver for the property of the corporation which he has misappropriated or lost by his breach of duty.

An examination of the testimony taken-on the trial of this action has satisfied us that the findings of the court below were all sustained by the evidence, and that on the facts found by the court the defendants were clearly liable to the corporation. The defendant Lester was a trustee, and the proposition that a trustee can make no agreement for the appropriation of the property of the corporation of which he is trustee, authorized by his own vote, that is valid as against the corporation, is well settled, and does not require a citation of cases to support it. Here the trustee appropriated the property of the corporation, and seeks to defeat the action to compel him to account for such property on the ground, that he was a creditor of the corporation, and voted as one of its trustees to transfer the property of the corporation to himself as a creditor to pay the debt that the corporation owed him, and then at a subsequent meeting of the directors, by his own vote, carried a resolution to ratify such disposition of the property. It is too clear for argument that such resolutions were voidable at the instance of the corporation or its creditors. The decision of this case requires only the application of familiar-principles well settled, and the judgment that was made was the necessary consequence of the facts found by the court below, and we think the judgment was in all respects right, and should be affirmed, with costs.

Yam Brunt, P. J.¡ and O’Brien, J., concur.


author: Per Curiam.

text:
    Henry A. Gildersleeve, Resp't, v. G. H. Lester Impl'd, App'lt.

      (Supreme Court. General Term, First Department,

      Filed April 14, 1893.)

    Contempt—Judgment directing payment op money—Corporations.
    Where in an action, under §§ 1781 and 1782_ of the Code, against a* trustee of a corporation for misappropriation of its property, a receiver is appointed under § 1810, and a judgment rendered that the trustee pay to such receiver a certain sum,- contempt proceedings are proper under subd. 4, § 1241, upon his failure so to do.
    Appeal from order adjudging defendant Lester in contempt.
    The following is the opinion of the court below :
    Patterson, ,7.—The plaintiff in this cause, being one of three trustees of the Nepera Park Land Company, sued his co-trustees under the permission given by §§ 1781 and 1782 of the Code of Civil Procedure, to compel them to restore to the corporation certain moneys which they had received belonging to it, and the value of certain corporate property disposed of by them, but which they had failed to turn over or account for to it On the trial of the action it was found by the court at special term that the defendant Lester had obtained and wrongfully retained $46,000 of money belonging to the coi-poration, and that the defendants Lester and Brown were jointly liable to the corporation for $21,500, which they were required to restore. By the terms of the decree a receiver was appointed of the property of the corporation, and the defendants were thereby required to pay over to such receiver the amounts above mentioned. The receiver has duly demanded, payment of such amounts, refusal to comply therewith has been shown, and this motion is to punish the defendants as for a contempt in so refusing. The motion is strenuously resisted on the ground that the court was without jurisdiction, in a case of this character, to appoint a receiver, but I think that objection may be disposed of in a very few words. The plaintiff certainly had a right to maintain the suit The statute expressly gave it to him. The court found his allegations true, and the defendants were adjudged to make restoration of the moneys they had received, and of the value of the property they had misappropriated. How was such a judgment to be. enforced? Certainly the plaintiff was not personally entitled to the money, and it' is equally certain that it would have been a mere futility to direct its payment to the corporation of which the two defaulting defendants had control, for that would be simply putting it back into their own hands. It is difficult to see what other course could have been pursued than that of appointing a receiver to take possession of the moneys, and to whom the defendants should be required to pay it. He would hold it then under the direction of the court as to its final disposition, and it is not a practical question now, at least one not to be raised to embarrass the enforcement of the decree, how the court will ultimately direct that the money shall be applied to the uses of the corporation, or reach its treasury, or be disposed of for the benefit of its creditors or stockholders. I think the terms of § 1810 of the Code of Civil Procedure are broad enough to confer the right to appoint a receiver, as this action was brought in one of the cases authorized by article 2 of the title therein referred to, and that it was the only way to realize the money, as the two trustees, defendants, could not be removed in the action, nor otherwise than in a suit brought by the attorney general. Code Civ. Pro., § 1811.
    But it is further claimed that process for contempt cannot issue against these defendants, for the reason that wherever money may be collected by execution that method of realizing is alone left open to the party entitled to it. Section 1241, Code Civ. Pro., provides for the enforcement of judgments by punishment as for contempt, and enacts that it may be done in a case where final judgment cannot be enforced by exception, or where the judgment requires the payment of money into court or to an officer of the court, except where the money is due on a contract, express »or implied, or for nonperformance of a contract; and it is further provided that in such a case, “ if the judgment is final, it maybe enforced as prescribed in this section, either simultaneously with or before or after the issuance of an execution thereon, as the court. directs.” Here it is clearly provided in most explicit terms that where the right to the money resides in an officer of the court, and direction is given to pay it to him, the power to enforce a decree awarding it is independent of the issuing of an execution, if the court so directs. The cases cited by the learned counsel for the defendants do not quite meet this view of the case. Jacquin v. Jacquin, 36 Hun, 378, was a case in which defendant failed to pay, under final decree, certain costs, etc., in a suit for separation. It was held contempt proceedings could not be resorted to, but, in commenting on the fourth subdivision of § 1241, the court said: “ What was probably designed by this subdivision was to include such judgments as should be recovered for moneys wrongfully withheld from the court or one of its officers by the defendant, which the court itself would be required to hold for or distribute among parties entitled to it; ” and such I conceive to be the nature of this case, and that the moneys come into the hands of the receiver as the officer of the court, to be held until the court itself, on proper application, can determine in what manner they are to be disposed of for the uses or benefit of the corporation. In re Hess, 48 Hun, 586; 16 St. Rep., 255, was one in which an assignee was not held liable for contempt in not paying over money to a receiver after an assignment for creditors was set aside as fraudulent, but the effect of subdivision 4 of § 1241 is not considered in that case. Myers v. Becker, 95 N. Y., 486, does not touch the point, for it was not a final judgment that was sought to be enforced. O'Gara v. Kearney, 77 N. Y., 423, was stated in the opinion not to be a case coming under § 1241, for the judgment, when entered, would direct the payment of the money, not to the court or its officer, but to the party. None of these cases meet the direct and primitive terms of subdivision 4, § 1241. That contemplates and distinctly provides that in certain cases where money is to be paid into the court or into the hands of its officer, whether an execution may issue or not, contempt proceedings may be maintained, and even if in certain cases, as Geery v. Geery, 63 N. Y., 252, an execution might issue in favor of a receiver that cannot nullify the express provision of law. Here the judgment requires the payment of money to an officer of the court, viz., its receiver, and a failure to comply with a proper demand renders the parties bound by the decree liable for disobedience. If that is not so, there is no meaning in the statute at all. Motion granted.

      Louis C. Waehner, for app’lt; John W. Boothby, for resp’t.
   Per Curiam.

The nature of the action, the form of the judgment, the power of the court to appoint a receiver, are all fully discussed in the opinion herewith handed down upon the appeal from the judgment. The single question remaining is as to the right to enforce the judgment by punishment as for a contempt. In disposing of this question little need be added to the able opinion of the judge from whose order this appeal is taken. Most of the cases cited by appellant as inclining to a contrary view have been cases under the old Code, or where the direction was in effect a direction to pay to a party for his own benefit, in which cases an execution to enforce the judgment may be issued. We think that under the true construction of subdivision 4 of § 1241 of the Code the right is given to enforce the terms of the judgment by proceeding as for a contempt. This section, disposes, it seems to us, of the main argument made by appellant, that these proceedings cannot be resorted to upon judgments where the act directed to be performed requires the payment of money, or where an execution upon such judgment can be issued, because by the express terms of such section a judgment such as this, requiring the payment of money to an officer of the court, may be enforced by contempt proceedings although an execution may issue, and even simultaneously with the issuing of such execution.

The only question presented which, as we have already stated, has been disposed of on an appeal from the judgment, is as to whether the receiver appointed by the judgment in this action is an officer of the court within the meaning of such subdivision of § 1241 of the Code. This, we think, needs no further discussion but a statement of our conclusion that such a receiver is clearly an officer of the court within the meaning of that section. It is true that this section excepts cases where money is due upon contract. This action, however, was for a breach of trust in wrongfully misappropriating property of a corporation of which the defendant was a trustee. The act was grand larceny. Section 541, Penal Code. A breach of trust which arises out of contractual relations is nevertheless a tort. Many breaches of trust arise out of the violation of express or implied contracts; for example, breaches of trust committed by agents, attorneys, and the like. The judgment in this action was for a tort, and the defendant is, therefore, liable to imprisonment.

We think, therefore, that the judgment in this case having required the payment of money to an officer of the court, whether an execution could or could not have been issued upon such judgment it could be enforced by contempt proceedings under § 1241 of the Code, and that for these reasons, in addition to those stated by the judge at special term, we think the order appealed from should be affirmed, with ten dollars costs and disbursements.

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


text:
    Eliza J. Lord, Resp't, v. Charles W. Lord, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Parties—Action on articles op separation.
    An action upon a covenant in articles of separation, which contains no provision for payments to be made to the wife, but only to the trustee, who agrees to indemnify the husband against debts of the wife, cannot be maintained by the wife, in the absence of allegation or proof that the ■ trustee has refused, on request, to bring the action.
    Appeal from order and interlocutory judgment overruling defendant’s demurrer to complaint.

      Louis V. Booraem, for app’lt; Wm. Ives Washburn, for resp’t.
   Ingraham, J.

This action is brought to enforce a covenant contained in an instrument made between the parties to this action and one Aziriah Everett, as trustee for the said Eliza J. Lord, by which the parties to this action, who were husband and wife, agreed to live separate and apart from each other, and whereby the defendant agreed to pay to the said Everett, “ for and towards the better support and maintenance of his said wife (the plaintiff) the sum of $800 per annum for the term of her natural life.” The said agreement also contains the usual covenant on the part of the said trustee to indemnify and hold the defendant harmless of and from all debts of his said wife now contracted or thereafter contracted by her, and the said trustee agrees to repay to the defendant, on demand, any sum that he may be compelled to pay for such debt or debts. There is no allegation that the plaintiff has requested the trustee to sue to enforce the said covenant, and the said trustee is not a party to the action. The contract sought to be enforced in this action contains no covenant on the part of the defendant to make any payment to the plaintiff. The only covenant as to the payment of any money is that the party of the first part will make the payment before stated to Everett. We think it clear that, in the absence of an express covenant to pay any sum of money to the wife, the plaintiff cannot maintain an action at law to enforce the covenant to pay to a third party as trustee a sum of money which the husband covenants to pay to such trustee. The trustee has an interest in the enforcement of this covenant, for by the agreement he is to indemnify the husband for any debts of the wife, and to repay to the husband any amount that he may be compelled to pay for such debts.

Under such an agreement the person named as trustee becomes a trustee of an express trust, within the provisions of § 449 of the Code, and is thus entitled to maintain an action to enforce the covenant. The case of Potter v. Potter, 8 Civ. Proc., 150, does not apply, for there the covenant was made directly to the wife, and when the action was commenced she had ceased to be the wife of the defendant, a decree of divorce having been granted, dissolving the marriage.

* We are not called upon, therefore, to express an opinion as to whether that case should be followed. Nor do we wish to be understood as holding that, in case the trustee should refuse to bring the action after proper request by plaintiff, an action could not be maintained by the plaintiff, making the trustee a party, to enforce 1 the covenant. This is not a case where the contract was made with one person furnishing the consideration to pay to another, as in Todd v. Weber, 95 N. Y., 188, and cases there cited, for in this case there was not an agreement between defendant and Everett to pay to plaintiff, but an agreement between plaintiff, defendant and Everett that the defendant would pay to Everett as trustee. We think it clear, therefore, that no cause of action at law exists in favor of the plaintiff against the defendant to enforce this covenant

The judgment should, therefore, be reversed, and the demurrer sustained, with costs.

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


text:
    Andrew V. Jova, App'lt, v. The Southern Improvement Company, Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Contract—Employment as physician—Construction.
    A contract recited that plaintiff was to perform the duties of physician at defendant’s hotel from October 1, 1889, to May 1, 1890, for fifty dollars per month, unless one R. resigned his position with defendant before May 1, 1890, when plaintiff’s salary should be $125 per month, and to continue for one year from May 1, 1890, or from the date R. severs his connection with defendant. R. resigned his position in April, 1890. Plaintiff was paid fifty dollars per month till May 1, 1890, and $125 for the following month, when he was discharged. Held, that plaintiff was to be employed from October 1, 1889, to May 1, 1891, at fifty dollars per month untd R.’s employment ended, and $125 per month thereafter.
    Appeal from a judgment dismissing the complaint on the ground that it does not contain facts sufficient to constitute a cause of action.

      H. K. Doherty, for app’lt; Peabody, Baker & Peabody, for resp’t.
   Ingraham, J.

action is brought to recover damages for the breach of a contract whereby plaintiff claims to have been employed by the defendant until May 1, 1891. The complaint sets forth the contract in full; alleges that a Dr. Boss, mentioned in the contract, continued in the employ of the defendant until his contract with the defendant terminated by limitation, at the end of April, 1890 ; that the plaintiff entered upon his employment and duly discharged all the duties thereof until the end of May, 1890, and was paid for his services up to that time; and that about the end of May, 1890, plaintiff was, without cause or right, discharged by the defendant. Upon the construction of this contract, as claimed by plaintiff, he was liable from October 1,1889, to May 1, 1891, and, while the construction to be given to it is not free from doubt, I am of the opinion that the plaintiff is right. By the agreement, which was dated the 21st of October, 1889, the plaintiff, the party of the first part, agreed to furnish medical attendance and perform the duties of physician in charge of the Mountain Park Hotel, Hot Springs, N. 0., commencing October 1, 1889. There is, in this covenant, on the part of the plaintiff, no time fixed for the termination of the employment. Then follows the covenant of the defendant. It is that defendant agrees to pay to plaintiff from October 1, 1889, a salary of fifty dollars per month, with board, etc.,- at said hotel, until May 1, 1890, “ or in the case of the resignation of Dr. Ross, or his relinquishment of his contract before May 1, 1890, then the amount to be paid by the party of the second part shall be one hundred and twenty-five dollars per month, in addition to board, etc., as before stated.” If the contract had stopped here, it might be held to be an employment to May 1, 1890, at fifty dollars per month, or in case of the resignation of, or the relinquishment of his contract by, Dr. Ross, the compensation was to be $125 per month. The contract then contains the following: “ And to continue for one year from May 1, 1890, or from the day that Dr. Ross severs his connection professionally with the party of the second part,” the defendant. What is to continue for one year? Evidently, the employment of the plaintiff, and it is this latter clause of the contract that contains the first provision as to the period during which the contract is to continue in force ; the provision in the former part of the contract, as to the 1st of May, evidently applying to the period for which , fifty dollars a month was to be paid. If it had been the intention of the parties that the continuance of the employment after May 1, 1890, should be conditioned upon the resignation or retirement of Dr. Ross prior to May 1st, the provision that the contract was to continue for one year from May 1, 1890, would have been meaningless.

Talcing the whole contract, together with the situation of the parties, as alleged in the complaint, and the fact, as there alleged, that Dr. Ross’ contract with the company terminated in the latter part of April, the proper construction to be given to the contract is, I think, that the plaintiff was to be employed from October 1, 1889, to May 1, 1891; that he was to be paid $50 per month until Dr. Ross’ professional connection with the defendant ceased, if before May 1st, by resignation or relinquishment of the then existing contract, or, after May 1st, by the termination of his contract, and that the amount to be paid was to be $125 per month. And this construction is necessary to give effect to all the provisions of the contract, and is confirmed by the construction placed upon the contract by the defendant, which appears by the fact alleged in the complaint, and which must on this appeal be taken as true, that the plaintiff continued in the employment until the end of May, 1890, and was paid for the month of May at the rate of $125 per month. It follows that the court below erred in dismissing the complaint, and the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, J., concurs.

Van Brunt, P. J.—I would be inclined to differ from Mr. Justice Ingraham in his interpretation of the contract in question, were it not for the alleged interpretation put upon it by the action of the parties, which allegations, for the purposes of this appeal, we must accept as true.


text:
    In the Matter of the Board of Street Opening & Improvement of City of New York.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Condemnation proceedings—Award—Grantee op land—Construction OP DEED.
    A deed conveyed two lots “ excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-seventh street and the widening of Manhattan street.” Prior to the time of the date of the deed One Hundred and Twenty-seventh street had been laid out, but no proceedings were taken to condemn the land or to actually appropriate it until after such date. Held, that the portion of the lots over which the street had been laid out passed by the deed, and the grantee was entitled to damages for the opening of such street.
    Appeal by James Baird from an order of the special term confirming the report of a referee appointed to ascertain the right to certain awards made to the respondents in proceedings for the opening of One Hundred and Twenty-seventh street

      Foley & Powell, for app’lt; James A. Peering, for resp’ts.
   Per Curiam.

The question presented ehere is as to the ownership of an award made in this proceeding to open One Hundred and Twenty-seventh street in the city of New York, from the Boulevard to Manhattan street. Thomas Lang was the owner in fee of certain real estate in the city of. New York, including two lots of land, designated on a map of Manhattanville made by Adolphus Loss as lots Hos. 104 and 106. All his estate, both real and personal, he devised to his children by will, which was duly admitted to probate. The children of said Thomas Lang having agreed to make partition of all the real estate of which he died seised, and to convey to each their respective shares, and having agreed that the two lots in question should be conveyed to one of the children, named John Lang, the other children executed a deed, dated the 30th of June, 1875, conveying to him the two lots in question by the following description :

“ All those two certain lots or parcels of ground situate, lying, and being at Manhattanville, and known and distinguished on a map of Manhattanville aforesaid made by Adolphus Loss, city surveyor, September 15, 1806, by the numbers 104 (one hundred and four) and 106 (one hundred and six) on the southwesterly side of Manhattan street, bounded northeast, in front, by Manhattan street, southeast by lot Ho. 108 (one hundred and eight), southwest, in the rear, by Blackberry alley, and northwest by lot Ho. 102 (one hundred and two), being the same premises conveyed to Thomas Lang by Joseph Husson by deed dated February 1, 1850, and recorded on the same day in the office of the register of the city and county of New York in liber 533 of Conveyances, page 457, excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-seventh street and the widening of Manhattan street.”

John Lang and Annie, his wife, by deed dated the 25th day of January, 1877, conve3red the said two lots by the same description to James Baird, the appellant herein. At the time of these conveyances a portion of the lots, as shown upon the Loss map, had been taken for the widening of Manhattan street; -and, prior to the time of those deeds, One Hundred and Twenty-seventh street, between Manhattan street and the Boulevard, was laid out by the commissioners of streets and roads on a map filed by them on the 1st of April, 1811, under and pursuant to chapter 115 of the Laws of 1807, but no proceedings had been taken to condemn the land included in One Hundred and Twenty-seventh street, or to actually appropriate it for street puiposes. Subsequently this proceeding was commenced to condemn the land included in One Hundred and Twenty-seventh street, which embraced a portion of these two lots in question, and an award was made to the owners of such portion of these two lots as was included in One Hundred and Twenty-seventh street, and the order appealed from gave to the heirs-at-law of Thomas Lang, the testator, the award thus made.

The question to be determined is, whether, by the deed from the heirs-at-law of Thomas Lang to John Lang, the portion of the two lots in question included within the bounds of One Hundred and Twenty-seventh street was excluded from that conveyance. The court below held that it was excluded from the conveyance, and remained vested in the heirs-at-law of Thomas Lang. We think, however, that it was not the intention of the parties to that deed that any portion of the two lots Nos. 104 and 106 on the Loss map, to which they still had title, should be excepted from' the conveyance; that all that was intended to be excepted was those portions of the lots to which ’they had lost title by reason of the proceedings of the city in actually taking them for street purposes. The language used clearly implies that the exception was to relate only to so much of the lots as had been, before the execution of the conveyance, actually taken for the opening of these streets, and not to any portion of the property which might in the future be taken for the opening of the streets in question. There was nothing to show that the grantors had any intention to reserve these small pieces of land that in the future would be necessary to be taken for One Hundred and Twenty-seventh street. So far as appears, they owned no property in the vicinity to which these pieces of land could be useful, and, in the face of the clear language used, we fail to see how any other intention could be implied. The order appealed from should, therefore, be reversed, and the amount of the award directed to be paid to the appellant, with costs and disbursements in the court below, and ten dollars costs on this appeal, and disbursements.

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


text:
    David McClure, Rec'r of The Life Union, Resp't, v Louis P. Levy, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Arrest—Vacation of.
    Where the cause of arrest is identical with the cause of action an order of arrest s1 ould not he vacated unless it appears with reasonable certainty that the plaintiff cannot recover in the action.

      Appeal from an order denying defendant’s motion to vacate an order of arrest.

      Browne & Sheehan (Isaac L. Egbert, of counsel), for app’lt; Herbert B. Turner, for resp’t.
   Per Curiam.

In this action the cause of arrest is identical with the cause of action, and the order of arrest should not be vacated unless it appears with reasonable certainty that the plaintiff cannot recover in the action. From the facts before the special term it would appear that this defendant appropriated the funds of the company for the payment of notes of doubtful validity, which were not negotiable in their character, and the money was-paid out of a fund which was pledged to the certificate holders, and not to be applied to the general uses of the corporation. To entitle the plaintiff to recover in the action at all it is necessary to prove the allegations of the complaint, that the defendant wrongfully withdrew from the funds of the corporation the sum of $10,141.06 and embezzled and converted the same to his own use; and we think there was before the court evidence tending to sustain that allegation. The order should, therefore, be affirmed,, with ten dollars costs and disbursements.

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


author: Martin, J.

text:
    Jeremiah Eighmie, Resp't, v. Edgar B. Taylor, Adm'r, App'lt.

      (Supreme Court, General Term., Fourth Department,

      Filed May 13, 1893.)

    1. Witness—Disqualification under Code, § 829.
    The disqualification of a witness under § 829 of the Code depends entirely upon the facts as they exist at the time when the testimony is offered.

      2. Same.
    In probate or other cases, where a will, other instrument, or act, is contested on the ground of undue influence, restraint, mental incapacity or fraud, a person who is interested in the event of an action or proceeding is disqualified, under § 829 of the Code, to testify to any transaction or communication which occurred in his presence or hearing, although it was not with or addressed to such person, or one in which he participated.
    3. Same.
    Upon all other issues an interested witness may be permitted to testify to a conversation or transaction between a decedent and a third person in the presence of the witness, provided he was not referred to by the parties to such conversation and did not participate in it by word, sign or act.
    Appeal from a judgment entered in Delaware county June 17, 1889, on the verdict of a junq and from an order denying the defendant’s motion for a new trial made on a case and exceptions.
    On December 31, 1872, the defendant’s intestate sold to the plaintiff an interest in certain oil wells situated in Pennsylvania. Subsequently the plaintiff commenced an action against the defendant to recover damages for an alleged breach of warranty made on such sale. A verdict was recovered, which was affirmed at general term, and reversed by the court of appeals on the ground that the contract being in writing and containing no words of warranty, no oral warranty could properly be proved. After the decision of the court of appeals, the plaintiff obtained an order at special term permitting him to amend his complaint by alleging fraud on the part of the defendant’s intestate in making the sale.
    An amended complaint was served, the case put at issue and tried, and the jury rendered a verdict for two thousand. dollars, which was set aside by the trial justice on the ground that the amount was insufficient. The case again came on for trial, and a judgment was obtained in favor of the plaintiff for fourteen thousand nine hundred and eighty dollars and twenty-eight cents, which is the judgment appealed from.
    On the last trial, Naomi Eighmie, the wife of the plaintiff, and the real owner of the cause of action, was called as a witness, and testified that she heard a conversation between Mr. Collingwood, defendant’s intestate, and the plaintiff at plaintiff’s house. She then testified that she saw a letter at that time which the intestate had, whereupon the defendant’s counsel said : “ I suppose it will be conceded that this lady is the owner of the cause of action.” To which the plaintiff’s counsel replied: “ I suppose it is the fact.”
    Defendant’s counsel then objected to any testimony of any communication by James Collingwood to her or in her presence, or any transaction between the witness and Collingwood, or by Collingwood in her presence. To this objection the plaintiff’s counsel replied: “She wasn’t then interested in the transaction. It is not the transaction between the parties, Since this action was commenced the cause of action has been transferred to Mrs. Eighmie; this woman had nothing to do with the transaction at that time.” The Court then remarked: “ And didn’t participate in the transaction at all? Plaintiff’s counsel: No, sir; she didn’t take any part in it. The Court: If you say she had nothing to do with the transaction, you can go on with the evidence. I will overrule the objection.” To this ruling an exception was taken by the defendant.
    Subsequently the witness testified : “ I heard the conversation at that visit of Mr. Collingwood, between him and Mr. Eighmie, in relation to the sale of these oil wells. I didn’t take any part in that conversation.” She was then asked to give the conversation, which was objected to by the defendant, who requested the privilege of asking her a few questions preliminarily, which the court granted. Thereupon the following evidence was taken as to whether the witness took part in such conversation:
    “ Cross-examination by Mr. Baker: Q. Who was present during the conversation that you have referred to ? A. Mr. Colling- t wood and Mr. Eighmie and myself; we were the only persons present during the conversation.
    “Q. Were you present during all the conversation had by Mr. Collingwood on that occasion? A. Very nearly so all the evening; the forepart of the evening I was in and out of the rooms at various times.
    “ Q. Did you talk with Mr. Collingwood while he was at your place ? A. Mot on business.
    “ Q. Did you talk with him? A. I entertained him the same as any lady would.
    “ Q. You talked with him? A. Yes, sir.
    “ Q. Did you object to your husband’s entering into some arrangement with him? A. Yes, sir.
    “ Q. Do you recollect what Mr. Collingwood said to you about your objecting to it? A. Mo, sir; he never said nothing to me, he said it in my presence.
    “Q. Do you remember testifying on the other trial: ‘I remember what Collingwood said to me, he didn’t like it because I objected?’ A. Yes, sir; I remember it well.
    “ Q. That did take place then ? A. I was talking to my husband at the time.
    “Q. You spoke to your husband about it? A. Yes, sir; and then Mr. Collingwood made the remark in the presence of both of us.
    “ Q. About your objecting to this bargain or arrangement, or whatever it was ? A. Yes, sir; he said he never advised with his wife on business matters.
    “ Defendant’s counsel: Mow we object to any evidence by the witness concerning any personal transaction or communication between her and James Collingwood and to any testimony or any communication by James Collingwood made to her or in her presence, or any transaction between said _ Collingwood and witness, or any transaction or act of the said James Collingwood in the presence of the witness.
    “ The Court: They may wish to examine further.
    11 Direct examination resumed. I did not take any part in the talk or transaction between my husband and Mr. Collingwood. Before my husband made any agreement I opposed it. I spoke to him entirely outside. The remark that was made by Mr. Collingwood was generally directed. Q. The remark that you have given, that he never permitted his wife-? A. He said he didn’t consult his wife on business matters. They then went on and had their whole conversation without any further interruption. At that time I had no interest in it excepting the interest of advising my husband. When I speak of having anything to say with him while he was there, it was only in entertaining him as á guest, and was entirely outside and independent of this business talk. When I advised my husband it was when we were in our own room afterward. Mr. Collingwood was not present at the time. It came up after-wards by Mr. Bighmie telling him I had advised him not to. This talk about my advising him came up the morning following the conversation, before Mr. Collingwood went away. At the time of the conversation I had no talk in regard to it.
    “ Cross-examination by Mr. Baker. I don’t remember that my husband told Mr. Collingwood about my objections in my presence. Mr. CoIIingwood did not speak to me directly about it in the presence of my husband. I was not talking to him at the time, but I heard Mr. CoIIingwood speak of this.
    “By the Court: Q. I understand that Mr. CoIIingwood and you and your husband had the talk this evening? A. It was in the morning before he went away.
    “ Q. Did Mr. CoIIingwood and your husband have a talk in the evening? A, Yes, sir.
    “ Q. That conversation you took no part in whatever ? A-No, sir.
    “ Q. Where was this talk you had with your husband, when you advised him to let the matter alone? A. It was in our room afterwards.
    “ Q. After Mr. CoIIingwood and your husband had separated ? A. Yes, sir.
    “Q. And then the talk by Mr. CoIIingwood that he didn’t advise with his wife was the next morning? A. Yes, sir.
    “ Plaintiff’s counsel: It is the talk in the evening we are now offering to show.
    “Defendant’s counsel: We wish to object to any testimony by this witness on the ground that she is disqualified by her interest, under § 829 of the Code.
    “ By the Court: Q. Was the conversation of the night before continued further the next morning? A. Yes, sir.
    “ Q. Was there anything else said except what you have stated about your husband telling him what his wife had said, and his saying he didn’t advise with his wife ? A. Nothing said new from the night before excepting the remark he made.
    “ Q. But they did continue and talk about the same matter they had talked about the night before ? A. Yes, sir.
    “By Mr. Gumming: Q. Now state whether the conversation, the business conversation between your husband and Mr. Eighmie, was completed during the night prior to the time referred to by you ? Objected to. The Court: She may answer. A. Yes, sir.
    “ Q. And in the morning, do you know how he come to speak of the subject about his not advising with his wife ? A. I spoke to my husband; I didn’t wish him to go to Elizabeth for fear he would take cold, and that was the remark that Mr. CoIIingwood made.
    “ Q. Do you know why Mr. CoIIingwood spoke the next morning? A. What I said to my husband was what called out the remark.
    “ Q. Do you know whether your husband was informed, or had informed him, that you had objected; what do you know upon that subject ? A. I don’t remember; this conversation was in the morning, after breakfast; he left the house with my husband, I think, for the 8:25 train in the morning; it was just before they left that he said he didn’t advise with his wife; just as they were preparing to go.
    “ Q. And was there much said about it; was there any continued or lengthy conversation about the subject that had been talked the night before? A. No, sir; there is nothing else I rememher, excepting what I have testified in response to Mr. Baker, that took place in the morning; at this time I was advising my husband not to go on account of his ill health, and of endangering it
    “Q. Was that what brought out the talk of Mr. Collingwood, that he never advised with his wife? Á. No, sir; on business. Objected to as leading. The Court: I think you are leading considerably. A. I objected to my husband having anything to do with it, and going out and exposing his health; that is the way it came up in the morning. In response to that, that was the way Mr. Oollingwood made the remark that was addressed to both of us; that was all the conversation that took place in the morning that I can remember.
    “ Cross examination by Mr. Baker: Q. See if I can refresh your recollection on the subject. I will read the testimony on the previous trial. 1 Q. You made no objection to the contract or arrangement ? A.)Yes, sir; I objected all through; I always have objected to it, and I didn’t want him to run the risk; I didn’t want him to run the risk, the same as any wife would, and I didn’t want him to have anything to do with the well at all. ‘ Q. What risk did jou think he might run, that he might lose on it? A. Yes, sir; i had good reason to; he had lost once.’
    “ Q. Did you testify to that? A. Yes, sir; that was before my husband, but not before Mr. Collingwood.
    “ Q. That was the reason you was objecting to it? A. Yes, sir.
    “ Q. And that is the testimony you gave on the previous trial ? A. Yes, sir.
    “ ‘Q. Did you object the night before ? A. I told you I always objected.’ Q. Is that true? A. I always objected to his going into the oil business.
    “ Direct examination resumed. Q. Did you, on the same trial, say you didn’t make any of these objections in the presence of Mr. Collingwood? A I didn’t make the objection in the presence of Mr. Collingwood; in that I refer to the objections I made to my husband privately.”
    “ Cross-examination resumed. Q. Didn’t you swear on the other trial, you could not say whether you did or did not, when asked this question, ‘ in the presence of Mr. Collingwood.? ’ A. No, sir; I didn’t say it in the presence of Mr. Collingwood.
    “Q. Wasn’t this question asked you (reading from minutes of previous trial), 1 Did you in fact object the night before to Mr. Eighmie’s purchasing in the presence Mr. Collingwood ? A. I don’t know that I did, in the presencé of Mr. Collingwood. 81Q. You won’t say either way? A. No, sir.’ Is that correct, did you so testify on the other trial? A. Yes, sir; I think I did, I didn’t say it in the presence of Mr. Collingwood.
    “Q. Did you testify on the other trial about what I just read to you, did you so testify? A. I think so.”
    “ Direct examination resumed (Reading from testimony of previous trial.) Q. ‘ You won’t say either way whether you did or not ? A. No, sir; but I don’t think I did in the presence of Mr. Collingwood ; but I don’t remember. I had no conversation the night before directly in reference to the sale matter, Mr. Bighmie does the talking, I don’t do any of it; they did the talking the night before, I didn’t talk to Collingwood on business none at all; they were talking it over themselves. Collingwood gave his opinion as to what the property was worth quite freely. Bighmie said he would have to take his word for it. I don’t remember as Bighmie said he thought Collingwood had estimated it too high. The next morning after Collingwood had left my house, and I talked some about this conversation with my husband and I talked it over very many times. I didn’t talk to my husband, that night in Collingwood’s presence, I don’t remember anything of that’ That testimony was given at the same time with what I have read? A. Yes, sir.”
    “ Cross-examination resumed. That morning they were getting ready to go down to see Mr. English, whose testimony has been read here to-day. He lived about two miles from our place. I don’t know if he was an officer of the courts in some form, either a lawyer or a master in chancery, or both. I was not acquainted with him, I didn’t have any understanding on the subject.
    “ Direct examination resumed. My husband had been sick, and hadn’t been out until that morning.
    “ Q. And you was anxious about his health, and advised him not to goon account of his health? A. Yes, sir.
    “ Q. And that was followed by this remark of Mr. Collingwood that he didn’t allow his wife to interfere? A. Yes, sir; I don’t remember that my husband said anything in particular to Mr. Collingwood the next morning in reference to my advice; I objected to his going out with Mr. Collingwood that morning; they were talking about going down to Elizabeth to have the papers drawn; they were only talking a few moments before breakfast ; I don’t remember that they talked after breakfast at all; they talked, if I remember, about having their papers drawn, and where to go in Elizabeth; nothing was said about the terms of the papers that morning; that was spoken of after he came home; I think my husband said to Mr. Collingwood that he always advised with me; that was all that was said in reference to that when I objected to his going; I objected before Mr. Collingwood, in his presence; I objected to his going to Elizabeth in the morning, and he said he always advised with his wife; Collingwood said he never advised with his wife on business matters. That was all that was said about advising with me, as near as I can recollect it.”
    After this preliminary examination of the witness, the court overruled the defendant’s objection. To which ruling the defendant excepted. The witness was then permitted to testify fully as to the conversation and transaction had between the plaintiff and the defendant’s intestate, which was the subject of this action.

      Thompson & Lown, for app’lt; Alex. Cumming, for resp’t.
   Martin, J.

The first and most serious question presented on this appeal is, whether the court properly admitted the evidence of the plaintiff’s wife as to the conversations and transactions which took place between her husband and the defendant’s intestate, she being the real party in interest. When this evidence was offered, she was clearly interested in the event of the action. The respondent contends that as she was not interested when the conversations and transactions occurred, she was competent at the time of the trial. We find no authority sustaining this claim. It was held in Comins v. Hetfield (80 N. Y., 261), that the disqualification under § 399 of the old Code depended entirely upon the facts as they existed at the time when the testimony was given.

In Farnsworth v. Ebbs (2 Hun, 438, 440), it is said: “ The test of the prohibition, contained in § 399 of the Code, is not whether the interests .of the witness were the subject of the transaction or communication. Cases will often arise when a witness cannot be permitted to testify to a transaction or communication in which he had at the time no interest. For example, when an admission has been made respecting property of which the witness afterward became the owner; or when the witness acted for another in a transaction in the subject of which he afterward acquired an interest” See also Wooster v. Booth, id., 426; Andrews v. Nat. Bank of North America, 7 id., 20; Hadsall v. Scott, 26 id., 617; Church v. Howard, 79 N. Y., 415, 420; Miller v. Montgomery, 78 id., 282. The rule must be the same under § 829 of the present Code, and the witness was, we think, incompetent to give any evidence which was within the inhibition of that section.

This leads to the consideration of the question whether she was competent to give evidence of the transaction and conversations which were the basis of this action. The authorities bearing upon this question are somewhat in conflict, and it may be well to examine some of the principal cases to the end that we may, if possible, ascertain the rule that should be applied in this case.

In Simmons v. Sisson, (26 N. Y., 264), it was held that § 399 of the old Code did not prohibit a party sued by an administrator from testifying to a conversation heard by him between the deceased and a third person.

This case was followed by Cary v. White, (59 N. Y., 336), where it was held that under § 399 a party was not precluded by that section from testifying to statements made by a deceased person to a third party, although the witness participated in the. conversation, so long as his testimony was limited to what was not personal between him and the deceased. The doctrine of that case when applied to a conversation in which the witness did not join was re-affirmed in Hildebrant v. Crawford, (65 N. Y., 107). The opinion of the court in the latter case was to the effect that a party might testify to a conversation, heard by him, between a principal and agent who were both dead, as against a successor in interest of the principal. The doctrine of those cases .was again recognized in Badger v. Badger, (88 N. Y., 559), limited, however, to conversations in which the interested witness took no part

In Holcomb v. Holcomb (95 N. Y., 316, 325), in discussing this question, it was said: “The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another. The statute is a beneficial one, and ought not to be limited or narrowed by construction. Although it must appear that the interview or transaction sought to be excluded was a personal one, it need not have been private, or confined to the witness and deceased. If they participated, it does not change its character because others were present. A contrary rule would defeat the reasonable intent of the statute, that a surviving party should be excluded as one interested from maintaining by his testimony an issue which, in any degree involved a communication or transaction between himself and a deceased person,” and the case of Cary v. White (59 N. Y., 336), was again under consideration, and it was there said: “In the case of Cary v. White, the court regard it as settled that the provisions of the Code (§ 399) there under consideration, and which were not unlike those now in force (§ 829), do not preclude- a party from testifying to the statement of a person deceased, made to a third person in the hearing of a witness.” But Judge Danforth, in the opinion in that case, subsequently adds: “ If while the decedent is conversing with a third person, the witness by word or sign participates in it, or is referred to, his evidence of what occurred cannot be received.”

In Lane v. Lane (95 N. Y., 494, 502), in discussing this question, it was said: “ Something may have occurred by word or act in the presence of the testator, and between him and others, to which she (the testator’s wife) was not a party, and of which she could testify,” citing Cary v. White (59 N. Y., 336); Kraushaar v. Meyer (72 id., 602). In the latter case it was held that although a party was not incompetent under § 399 of the old Code to testify to an independent conversation between the deceased and a third person, yet, if he participated in the conversation, and it related to a transaction between him and the deceased, he was incompetent.

In Brague v. Lord (67 N. Y., 495), where in a conversation between the decedent and another, in the presence of a witness who was disqualified under § 399, and the statement proved appeared to have been addressed to the plaintiff as well as the other, indicated only by his turning toward the plaintiff when the statement was made, it was said that the witness was incompetent, and the admission of the evidence was error.

In Simmons v. Havens (101 N. Y., 427, 433), the plaintiff was allowed to testify to conversations between her deceased mother and the defendant, at which she was present, but it did not appear she took any part in the conversation, and the admission of her evidence was held proper and sustained by the case of Cary v. White (59 N. Y., 336), thus substantially re-affirming the doctrine of that case, as limited in the preceding cases to conversations between a decedent and a third person in which she took no part.

In the Matter of Eysaman (113 N. Y., 62; 22 St. Rep., 136), where the probate of a will was contested on the ground of want of testamentary capacity on the part of the testator, it was held that a witness who was not competent under § 829 was not only not competent to testify as to transactions directly between the witness and the deceased and communications by the latter to the former, but was disqualified to testify to any transactions between the deceased and others in any portion of which the witness participated, or any conversation in his hearing, although not with, or addressed to him. In the opinion in that case, it is said that the case of Cary v. White (59 N. Y., 336),’is not an authority for the admission of such evidence. In discussing that case, Ruger, Gh. J„, criticises it as follows: “ Several grounds for the conclusion reached in that case were stated, but a single judge only concurred with the opinion; two judges concurred in the result and two dissented, the remaining judge not voting. One of the grounds suggested in that case was that -the party objecting to the evidence offered was not an assignee of the deceased person within the meaning of the statute. The evidence there sought to be given consisted of a declaration made by the deceased person to his own attorney in the presence of the plaintiff. The point was presented upon an objection to the question calling for the evidence, which was sustained by the trial court. The judge who wrote in this court was of the opinion that the question excluded did not necessarily relate to a personal communication or transaction between the deceased person and the witness, and was, therefore, competent. The case cannot be considered an authority upon the question here presented.3’

In the Matter of Will of Dunham (121 N. Y., 575; 31 St. Rep., 858), where the probate of a codicil to a will was contested on the ground of undue influence, restraint and mental incapacity, a residuary legatee was called by the contestants, who offered to prove by him conversations and transactions of the testator with the witness and others in his presence. The evidence was excluded. The court of appeals held that the evidence was inadmissible. In the opinion in that case it is said: “ The object of the proposed evidence could only have been to show undue influence or restraint exerted upon the deceased, or his mental incapacity ; * * * Therefore, while as to any communications or transactions with the witness the proposed evidence was plainly enough inhibited by § 829 of the Code, his testimony as to the conversations, or transactions, while he was present in the room, had between the deceased and other persons, was, under the circumstances, inadmissible,” citing the cases of Holcomb v. Holcomb (95 N. Y., 316), and Matter of Eysaman, 113 id., 62; 22 St. Rep., 136), and then it is said: “ The ground for the ruling is that communications in the presence of the witness are deemed to be made to him. While the ruling may be said to be stretched to the extremest tension, it has the merit, possibly, of being in furtherance of justice. The evidence is intended to work here against the respondent, who derives her interest under the testator’s codicil, and whose lips are sealed by the law as to the matters ; and to permit a witness, so much interested as this one was in the amount of the estate ultimately distributable, to testify to things said and done by testator, though with others, but while he was present, with the only supposable purpose of affecting the interests of the respondent, would certainly seem to be giving an undue advantage to the one as against the other. This is certainly true, if the evidence sought to be elicited is material in its bearing upon the question of restraint or influence upon the testator, or upon his disposing strength of mind. * * * This section of the Code offers considerable difficulty in the endeavor to give to its provisions a reasonable and just interpretation, and each case, as it arises, may, in its circumstances, control the application of the rule intended to be established by the legislature."

In Devlin v. The Greenwich Savings Bank (125 N. Y., 756; 35 St. Rep., 922), which was in effect an action to establish a gift causa mortis, the plaintiff offered to prove that she was present at a conversation between her uncle, through whom she claimed, and a Catholic priest. This evidence was objected to and excluded. It was held that inasmuch as there was nothing to show that she could testify to any fact that was material, it did not appear that any injury resulted from the ruling. Judge Peckham, who wrote the opinion, then added: “It is doubtful if the witness could be permitted to testify as to a conversation in her presence, between her uncle and Father Carew, relative to the gift she claimed. The cases of Eysamans Will (113 N. Y., 62; 22 St. Rep., 136), and Dunham’s Will (121 N. Y., 575; 31 St. Rep., 858), have very greatly limited the old rule in regard to such conversation.”

In the case of Petrie v. Petrie (126 N. Y., 683; 38 St. Rep., 496), where the validity of the will of Nicholas H. Petrie was the only disputed question, the plaintiff was permitted to testify to a conversation she overheard between her father (the testator) and her brother Morgan, in which the latter urged his father to change the disposition he intended to make for the benefit of the plaintiff. This testimony was objected to as incompetent under § 829 of the Code of Civil Procedure. Upon that question the court said: “The ruling of the trial court upon the objection to the above qtiestion would present a somewhat important point under the construction which this court has given to § 829 in recent cases, if it could be held that the answers in any degree affected the result," citing Holcomb v. Holcomb (95 N. Y., 326); Matter of Eysaman (113 id., 72; 22 St. Rep., 136); Matter of Dunham (121 N. Y., 575; 31 St. Rep., 858). But the court held that the evidence was harmless. In discussing that question, the court adds: “With the issue of fraud and undue influence out of the case, this testimony might, very prudently, have been given by the defendant.”

In Adams v. Morrison (113 N. Y., 152; 22 St. Rep., 324), where the question was whether the plaintiff was a partner with his deceased father, the plaintiff offered to prove by his own testimony that about the time he claimed the partnership was formed the decedent made an entry in his presence in a docket or register of the name of himself and the plaintiff as a firm. This was objected to as incompetent under § 829, and excluded. The court held that it involved a personal transaction between the decedent and the witness, and that the plaintiff was incompetent, citing Holcomb v. Holcomb (95 N. Y., 316); Clift v. Moses (112 id., 426; 21 St Rep., 777); Matter of Eysaman (113 N. Y., 62; 22 St. Rep., 136).

In the following cases it was held that an interested witness may testify to a conversation between a decedent and a third person in which the witness did not participate, Stern v. Eisner, 51 Hun, 224; 21 St. Rep., 388; Smith v. Ulman, 26 Hun, 386; Matter of Brown, 38 St. Rep., 130; Conolly v. O'Connor, 17 id., 261; affirmed, 26 id., 840, but upon the ground that the witness was not interested in the event of the action.

In Price v. Price (33 Hun, 69), which was an action by the plaintiff to recover the proceeds of bonds which were alleged to have been placed by her in the hands of the defendant’s testator for safe keeping, and which had been subsequently sold by him, the plaintiff testified that she had $12,000 in bonds in her trunk on or before March 25, 1865 ; that on the morning of that day five $100 bonds were stolen ; that the testator came to her room after the discovery of the theft with a detective, who after examining the room said to the testator that the theft had not been committed by a professional thief that if it had been he would have taken all the bonds. The plaintiff was then allowed, under the defendant’s objection and exception, to answer the following question: “ What did Price (defendant’s testator), say to Bennett (the detective), in your presence? ” Her answer to which was: “ No, of course, if it had been they would have taken all of them, whereas here is the balance of $12,000 in my pocket He took them out of his pocket and exhibited; took them from the envelope they were in. But, he said, they won’t get any more, because I am going to put them into a bank for her, meaning me.” She testified that she spoke more than once during the conversation, but that she said nothing while the remarks as to which she had testified were being made. It was held that the testimony was inadmissible under § 829 of the present Code.

In Erwin v. Erwin (26 St. Rep., 759), which was an action for specific performance of a parol agreement of a deceased person to convey land to the plaintiff, the plaintiff’s wife, who was interested in the event of the action, was present when the agreement was made. The conversation was between the decedent and plaintiff. His wife said nothing, as deceased did not like her, and she was afraid that if she spoke he would be angry and oppose the arrangement. It was, however, held that she was incompetent to testify as to the conversation or transaction between the decedent and her husband. See, also, Campbell v. Maginn, 53 Supr. Ct. (21 J. & S.), 514; Matter of Bartholick, 35 St. Rep., 730.

Having thus examined the principal cases in the court of appeals, and the later ones in the other courts of this state bearing upon the question under consideration, we think they clearly establish the rule that in probate or other cases, where a will, other instrument, or act, is contested on the ground of undue influence, restraint, mental incapacity or fraud, a person who is interested in the event of an action or proceeding is disqualified to testify to any transaction or communication which occurred in his presence or hearing, although it was not with or addressed to such person, or one in which he participated. It also seems to be established by these cases, that upon other issues an interested witness may be permitted to testify to a- conversation or transaction between a decedent and a third person in the presence of the witness, provided he was not referred to by the parties to such conversation, and did not participate in it by word, sign or act, but • if there was any such reference or participation, although slight, thb witness is incompetent.

Applying these rules to this case, it becomes obvious, we think, that the evidence of Mrs. Eighmie was incompetent. The issue in this case was fraud. The witness admits that she talked with the decedent and her husband on the occasion of the conversation or transaction testified to by her, and was referred to in the conversation between them. But she seeks to qualify herself as a witness by testifying that her conversation in no way related to the transaction between them, and that her objections to her husband’s entering into it were made in the absence of the decedent, and to her husband alone. Yet, when we read the whole of her evidence bearing upon this question, which was somewhat conflicting and uncertain, and indicates the existence of a strong desire on her part to qualify herself as a witness, we are led irresistibly to the conclusion that she was so far referred to, and participated in the conversation or transaction between her husband and the decedent to such an extent, as to render her evidence incompetent within the principle of the cases cited, notably the cases of Brague v. Lord (67 N. Y., 495); Price v. Price (38 Hun, 69), and Erwin v. Erwin (26 St. Rep., 759). We think the court erred in admitting her evidence, and that for that error the judgment should be reversed.

The plaintiff’s contention that the admission of this evidence was harmless, as there was other evidence sufficient to justify the verdict, cannot be sustained. The evidence'given by the witness was material and bore directly upon the issue between the parties. “ It cannot properly be sajji that material evidence erroneously admitted upon an issue is harmless, unless the testimony preponderates so greatly in favor of the proposition that a verdict against it would be set aside by the court as contrary to the evidence.” Matter of Esyaman, 113 N. Y., 70, 71; 22 St. Rep., 136. It is clear that if we adopt the rule laid down in the case cited, it cannot be held that the error of the court in admitting this evidence was harmless.

There are other exceptions as to the admission of evidence and the charge of the court, to which our attention is called by the appellant’s brief, but as the judgment must be reversed for the reasons already stated, they need be considered at this time.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Hardin, P. J., concurs.

Merwin, J., concurs in the result


text:
    The London & Lancashire Fire Insurance Co., Resp't. v. The Rome, Watertown & Ogdensburg Railroad Co., App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1893.)

    1. Carriers—Liability for loss by fire—Duty as to loading freight.
    The duty of loading freight delivered to and accepted by a railroad company for transportation over its road rests primarily upon the company.
    2. Same.
    Where a railroad company adopts a rule by which shippers of bulky freight are required to load it upon the cars, its relation to the property is not changed, and where it appeared, on the trial of an action to recover for property destroyed while in the company’s freight house, that the freight had been delivered and accepted and was only awaiting sufficient cars to hold it, and that the shippers’ employe was ready and willing to load it, Held, that the court properly left to the jury the question whether the company was in possession of the property as a common carrier at the time of its destruction.
    S. Same.
    In the absence of evidence showing a special acceptance or contract as to property delivered to a common carrier for transportation, it will be held liable for the destruction of the same, although the shipper or his agent previously knew of conditions in the shipping bills or receipts usually given which would discharge the carrier irom liability for the loss.
    Appeal from a judgment entered in Jefferson county April 9, 1888, on- the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the trial judge.

      D. G. Griffin, for app’lt; A. H. Sawyer, for resp’t.
   Martin, J.

This action was to recover for the loss of a large quantity of hay and straw destroyed by fire, which occurred April 3. 1885, at the defendant’s freight house at Cape Vincent, FT. Y. Prior to that time William J. Grant and Orlando W. Loomis had caused to be delivered at the defendant’s freight house, and a shed adjoining it, the hay and straw in question, awaiting shipment over the defendant’ road.

The owners had procured policies of insurance thereon with plaintiff and other insurance companies, which after the fire paid the amount of the insurance to Grant and Loomis, and took from them an assignment to the plaintiff of all their interest in any claim which they had against the defendant occasioned by the destruction of the property. The present action is based upon the claims thus assigned to the plaintiff.

The grounds upon which the plaintiff claimed the right to recover the value of the property thus destroyed were twofold : 1. That the property was in the possession of1 the defendant as a common carrier at the time of its destruction ; 2. That its loss was occasioned by the defendant’s negligence. The defendant denied that the property was in its possession as a common carrier, and also denied that such loss was occasioned by its negligence.

On the trial the court submitted to the jury not only the general question of the defendant’s liability, but also whether the fire was caused by the defendant’s negligence, and whether the hay in question was held by it at the time of the fire as a common carrier, or as a warehouseman. The jury found a general verdict in favor of the plaintiff for ten thousand five hundred twenty-one dollars and seventeen cents, and in answer to the questions submitted, it found that the fire was not caused by the defendant’s negligence, but that it held the hay as a common carrier at the time. Thus the verdict discloses that the defendant was held liable upon the sole ground that it was a common carrier, and hence an insurer of the property in its possession.

It seems to be settled that when goods in the hands of a common carrier are insured by the owner ánd lost or injured under circumstances rendering the carrier liable to the owner, the insurer who pays the loss to the owners is entitled to be subrogated to the rights and remedies of the owner against the carrier. Fayerweather v. Phenix Ins. Co., 118 N. Y., 324, 327; 28 St. Rep., 689; Hall v. Railroad Co., 13 Wall., 367; C. F. Ins. Co. v. Erie Railway Co., 73 N. Y., 399; Platt v. Richmond, Y. R. & C. R. R. Co., 108 id., 363; 13 St. Rep., 660; Phœnix Ins. Co. v. Erie Trans portation Co., 117 U. S., 312. Nor does the fact that the plaintiff’s assignors were to receive a portion of the sum collected of the defendant in any way interfere with the plaintiff’s right of recovery. Durgin v. Ireland, 14 N. Y., 322; Gardner v. Barden, 34 id., 433, 436. Indeed, the right of the plaintiff to maintain this action does not seem to be denied by the defendant. Hence, it must be assumed that the action was properly brought by the plaintiff. Therefore, the first and most important question to bo determined upon this appeal is, whether the evidence was sufficient to justify the finding that the hay destroyed was in the defendant’s possession as a common carrier.

That a common carrier is responsible for the loss of goods in his possession as such, irrespective of any question of negligence or fault on his part, if the loss does not occur by the act of Grod, or the public enemies, and that with these exceptions he is an insurer against all losses, is a principle of the law of bailments so well established as to render the citation of authorities unnecessary. Hence, the question with which we have to deal is not as to the extent and character of the liability of a common carrier, but whether the goods destroyed were in the defendant’s possession as such.

The defendant was both a common carrier and warehouseman. If the delivery of this hay and straw was made to the defendant for as early transportation as could be made in the course of its business, subject only to such delays as might necessarily occur from awaiting the departure of trains, the lack of sufficient cars, the performance of prior engagements, or other causes existing in the business of the defendant, it became, the moment the delivery was made, a common carrier as to it, and its responsibility as such at once attached. The general rule is, that the liability of a common carrier commences as soon as the goods have been delivered to and accepted by him solely for transportation, although they may not be put immediately in transit, but are at first for his own convenience temporarily deposited in his warehouse.

In such cases the deposit is a mere accessory to the carriage, .and does not postpone his liability as common carrier to the time when, the goods shall actually be put in motion towards their place of destination. Still, if he receives the goods in his warehouse to be forwarded, but not until he shall have received orders from the owners, or the happening of a certain event, or until something-further is done to the goods to prepare them for transportation, the delivery to him is not as a common carrier, but only as a warehouseman, and he .is only answerable in the latter capacity if the goods are destroyed while in the warehouse by fire and before such orders have been received, or such event has happened. Hutchinson on Carriers, § 89; Blossom v. Griffin, 13 N. Y. 569, 572; Wade v. Wheeler, 3 Lans., 201, 204; S. C., 47 N. Y., 658; Ladue v. Griffith, 25 id., 364, 367; Read v. Spaulding, 30 id., 630; Coyle v. Western Railroad Corporation, 47 Barb., 152; Angell on Carriers, § 134; ONeill v. N. Y. C. & H. R. R. R. Co., 60 N. Y., 138; Rogers v. Wheeler, 52 id., 262.

If, therefore, the evidence was such as to justify the jury in finding that the property in question was deposited in the defendant's warehouse, and left with it for the purpose of being transported over its road without further orders from the plaintiff’s •assignors, the jury was justified in finding that the goods were in the possession of the defendant as a common carrier and not as warehouseman.

On the other hand, if the evidence showed conclusively that the property was to remain in the possession of the defendant until it should receive orders from the then owners to ship the same, the finding of the jury that the property was in the defendant’s possession as a common carrier cannot be upheld.

This leads to an examination of the facts bearing upon the character and extent of the delivery to the defendant by the plaintiff’s assignors. During the autumn and winter of 1884-5 they were engaged in buying hay and straw from farmers, baling and shipping it over defendant’s road to an eastern market for sale. Their purchases during that season amounted to more than eighteen hundred tons, of which all except that destroyed by fire had been •carried over the defendant’s road. All this hay and straw had been delivered at the defendant’s freight house for transportation by it, including the portion thus destroyed.

An established rule of the defendant required all shippers of hay, straw, lumber or other heavy freight to unload it from the wagons or sleighs upon which it was delivered into the freight house at the station when delivered there, and afterwards to load it upon cars furnished by the defendant.

During that season one Reff was employed by the plaintiff’s assignors to receive the hay purchased by them as it was delivered by the farmers at the defendant’s station at Cape Vincent, to take the weight, and when cars were there for that purpose to-load it directly from the wagons or sleighs upon which it was delivered into the cars, and when cars were not furnished to deposit it in the freight house where the defendant’s agent directed until cars were furnished by the defendant and then to load it. therein.

The defendant failed to furnish sufficient cars for the transportation of the hay. Application was frequently made to the-defendant's agent at Cape Vincent, and to its superintendent of transportation, for additional cars so that the hay might be promptly shipped. Yet, notwithstanding the efforts of the plaintiff’s assignors to obtain necessary cars for that purpose, they were not furnished in sufficient numbers to enable them to ship the hay as-fast as it was delivered, and it accumulated until the enclosed portion of the defendant’s freight house in which it had been placed for shipment became filled, when Mr. Reff, acting for the plaintiff’s assignors, notified the farmers who were delivering the hay not to deliver any more, as there was no more room for it. Thereupon the defendant’s agent, in whose presence this direction was given, countermanded it, and directed the farmers to continue drawing their hay, and stated that he would find room for it. In pursuance of this order, the farmers continued to deliver their hay at that station, and under the direction of the defendant’s agent it was-placed in an open shed which adjoined or formed a part of the-defendant’s freight house, where it remained until it was destroyed.

During all the time after the commencement of the delivery of this hay until it was destroyed the defendant had a general order from the plaintiff’s assignors to ship their hay as fast as loaded upon the cars to certain firms in the city of New York, unless other special orders were given. In pursuance of this order, the-defendant from time to time during the season shipped all that was loaded in their absence.

Upon the hay shipped the freight was paid by the consignee. No receipt, shipping bill or bill of lading was ever delivered by the defendant to plaintiff’s assignors for any of the hay loaded or forwarded in their absence under such general orders. None of the bales of hay was marked with the name of the consignee.. No single bales were shipped, but all the hay was shipped by car loads, and the defendant marked the cars with the name of the consignee. While defendant’s agent testified that he had. forwarded hay in the absence of the plaintiff’s assignors, and signed shipping bills in their names for his bookkeeper to make-entries from, yet there was no proof that that fact ever came to-their knowledge, or that they knew the contents of the shipping bills or receipts, or the conditions printed thereon.

The witness, Reff, who was employed by the plaintiff’s assignors to load this hay, testified that he had loaded as many as nine ears in a day, and could have loaded as many any day if they had been furnished, but that the defendant did not furnish only four or fi-ve cars in any one day. He also testified that he was directed by them to load cars as fast as they could be obtained, that he did so during the entire season, and that there was never an occasion when cars were not loaded as soon as they were switched down to the freight house for that purpose. Upon evidence sufficient to establish the foregoing facts, the question whether the defendant held the hay in controversy as a common carrier was submitted to the jury.

The facts, we think, render it quite manifest that the sole purpose of the delivery of the hay to the defendant was for as early transportation over its railroad as could be made in the course of its business, and that there was such a delivery and relinquishment of all control over the property to the defendant as authorized it to transport the property without any further direction from plaintiff’s assignors. It is equally manifest that this hay was detained at the defendant’s freight house for its own convenience, to enable it to procure cars for its transportation, and that the delay in forwarding it was not occasioned by any omission of the plaintiff’s assignors to direct where it should be shipped, or to load it upon the cars as fast as they were furnished for that purpose, nor was it detained in furtherance of any desire or direction, or for the convenience of the plaintiff’s assignors. Nothing further was required to prepare it for transportation.1 No further orders were necessary to enable the defendant to forward it. The only act the plaintiff’s assignors were to perform was required by the rules of the defendant company, and for this they had fully provided by employing Reff, who was prepared to load the hay whenever cars were furnished by the defendant for that purpose.

We think the duty of loading freight delivered to and accepted by a railroad company for transportation over its road rests primarily upon the company. In this case, however, the defendant had adopted a rule by which the shippers of heavy and bulky freight were required to load it upon the cars. The binding force of such a rule may, perhaps, be doubted. But be that as it may, the most that can be claimed for the rule under consideration is, that by reason of its adoption the shippers of that particular land of freight were required to furnish the necessary help to load it. Obviously, the purpose of this rule was not to change the company’s relation to the property delivered to and accepted by it for the sole purpose of being carried over its road. If such had been its purpose, it would have plainly stated that such freight would not be received or accepted for transportation until it was loaded on the cars.

We think it is quite apparent that this rule was intended at most to impose upon the shippers of such freight the burden of loading it, and thus avoid the necessity on the part of the company of keeping a large force of employees for that purpose. The time, place and manner of loading, and the persons performing that service, were clearly under the direction and control of the defendant.

Under the facts and circumstances disclosed by the evidence in this case, we think the court was justified in submitting to the jury the question whether, at the time of the fire, the defendant was in possession of the property destroyed as a common carrier, and that the verdict of the jury should be upheld.

We have examined the portion of the charge of the trial court to which the appellant has called our attention in his brief, but have found no error which requires us to disturb the judgment.

The only other ground upon which the defendant seeks to reverse the judgment is, that there was a special contract between the plaintiff’s assignors and the appellant, by which, its liability as a common carrier' was so far limited as not to include a loss by fire. It is not contended that there was any express contract of that character, either oral or written, nor that any shipping bill, receipt or shipping orders for this property were delivered to the plaintiff’s assignors, or by them to the defendant, or came to their knowledge.

The ground of the appellant’s contention seems to be that this court should assume, although the question is here presented for the first time, that if the hay was accepted by the defendant as a common carrier, it was accepted under a special contract to be implied from its general coursp of dealing, in that it usually delivered to shippers receipts which contained a provision to the effect that it would not be responsible for damages occasioned by delays from storms, accidents or unavoidable causes, or by decay or injury of perishable articles, or from injury to property produced by frosts, heat or the elements, or from leakage occasioned from any defects in packages.

We do not see how this contention can be sustained. In Park v. Preston (108 N. Y., 434; 13 St. Rep., 809), it was held that, in the absence of evidence to the contrary, it is to be assumed that property accepted by a carrier for transportation is taken under the responsibility cast upon him by common law, except as modified by statute, and if lost under circumstances which render the carrier liable by the general rule of law he must respond, unless he can show that there was a special acceptance equivalent to a contract which exempts him from the ordinary liability of common carriers. Citing Dorr v. New Jersey Steam Navigation Co., 11 N. Y., 485; Blossom v. Dodd, 43 id., 264; Madan v. Sherard, 73 id., 330.

Again, in Reed v. Fargo (7 N. Y. Supp., 185; 26 St. Rep., 587), it was held that a carrier who fails to give a receipt, or to make any other contract for the shipment of property, will not be absolved from liability for its destruction by evidence that the plaintiff or his agent previously knew of conditions in the shipping bills or receipts usually given which would discharge the defendant from liability for the loss sustained. See Pearsall v. W. U. T. Co., 124 N. Y., 256; 35 St Rep., 307; Dorr v. New Jersey Steam Navigation Co., 11 N. Y., 485; Kirkland v. Dinsmore, 62 id., 171, 175; Blossom v. Dodd, 43 id., 264.

We find in this case no sufficient evidence of any such special acceptance or contract as to the property in question as would exempt the defendant from the ordinary liabilities of a common carrier. We think the cases cited are decisive of this question, and require us to hold that the defendant’s liability as a common carrier was not limited by contract or otherwise, and that the verdict of the jury should be upheld.

This conclusion renders it unnecessary to determine whether, if such a receipt had been delivered to the plaintiff’s assignors, it would have exempted the defendant from liability for this loss.

Judgment and order affirmed, with costs.

Hardin, P. J„, and Merwin, J., concur.