text:
    Henry Abegg et al., App’lts, v. John M. Bishop et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Assignment for creditors—Fraudulent transfer.
    Where a debtor, in contemplation of, or as part and parcel of an assignment for creditors, makes transfers to creditors to an amount exceeding one-third of his assets for the purpose of evading the limitations of the assignment law, such transfers and the assignment are void, whether the transferee has knowledge of such intent or not.
    Appeal from judgment entered after trial at special term.

      Emanuel Blumenstiel, for app’lt; J. A. Welsh, for resp’t Tilge; Maurice Rapp, for resp’t Grasse.
   Van Brunt, P. J.

This action was brought to set aside a general assignment made by the defendants Bishop & Crawford to the defendant Grasse, and also a transfer of outstanding accounts executed and delivered by the defendants Bishop & Crawford to the defendant Tilge.

It was claimed that the general assignment and the transfer of accounts were executed contemporaneously, and as part and parcel of the same transaction, and with intent to violate chap. 508 of the Laws of 1887, forbidding preferences, except to the extent of one-third of the actual assets of a debtor, and that, therefore, the assignment as well as the transfer is tainted with fraud and must fall.

It appears from the evidence that the transfer of accounts was executed and delivered on the 10th of January, 1890, and that the assignment was not executed until the following day. But it further appears that the assignment had been determined upon on the day of the execution of the transfer. It is true that the learned court below refused to find that the transfer was made in contemplation of and as part and parcel of the making of the general assignment. But it is apparent that this refusal may have been based upon the assumption that if the assignee of the accounts knew nothing about the contemplated assignment it was entirely immaterial whether such assignment was contemplated or not by the assignors at the time of the making of the transfer of accounts.

I think this view of the law was entirely incorrect, as I shall attempt hereafter to show; although it seems to receive some countenance from what is said in the cases of Berger v. Varrelmann, 127 N. Y., 281; 38 St. Rep., 813, and Manning v. Beck, 129 N. Y., 1; 41 St. Rep., 199, the decision in which latter case was to some extent founded upon what was supposed to have been decided in the first case cited.

It seems to me that it is too plain for argument that where a party resorts to trick and device to escape a statutory limitation, everything which is done or performed to carry out this design is fraudulent and is voidable at the instance of a judgment creditor. Therefore, if a party, for the purpose of evading the restrictions of the statute above referred to, resorts to the device of a transfer of accounts and then the making of a general assignment, thereby giving preferences to a greater extent than the statute would allow, intending and endeavoring so to do, his intent in the performance of these various acts is a fraudulent one; and a transfer to anybody except for value by a party with a fraudulent intent is void as against his creditors, and that, too, whether the transferee was cognizant of the fraudulent intent or not. If, in the cases cited, a contrary rule has been held, viz., that in order to invalidate a transfer given merely as security it is necessary not only to show that the transferor had a fraudulent intent, but that the transferee was cognizant thereof, then no force seems to have been given to the statutes of frauds as contained in the Revised Statutes, vol. 2, p. 137. Section 1 is as follows: “ Every conveyance or assignment, in writing or otherwise, of any estate or. interest in lands, or in any goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered with the like intent, as against the persons so hindered, delayed or defrauded, shall be void.”

All that is necessary in order to make a transfer of property or the suffering of a decree or judgment void is that it shall have been made or suffered with intent to binder, delay or defraud creditors. Now, in case a party contemplating making an assignment, for the purpose of evading the restrictions of the assignment law, knowingly makes transfers of his property as security to creditors in excess of that which is allowed by the assignment law, and thereby attempts to evade the provisions of the statute, such transfer is made with intent to hinder, delay and defraud his creditors, and therefore, under the express words of the statute, it is void, whether the transferee has knowledge of such intent or not. The only saving clause specified in the statute is that contained in § 5, where it is provided that “the provisions of this chapter shall not be construed in any manner to impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of bis immediate grantor, or of the fraud rendering void the title of such grantor.”

Therefore, the question of the intent of the transferee is only of importance where he is a purchaser for value, and then even he is not protected if he knew of the intent of the transferor. Therefore, the confession of a judgment, or the transfer of accounts for security, if made with intent to evade the statute, is necessarily void ; and if a general assignment for the alleged benefit of creditors is also made as part and parcel of this scheme, that must also necessarily fall.

It is entirely erroneous to suppose that the case of Berger v. Varrelmann is an authority for the proposition that an intent to evade the statute by the confession of a judgment and then making an assignment does not invalidate the assignment In the opinion of the minority of the court that position is expressly held; and nothing to the contrary can be found in the prevailing opinion. It must be borne in mind, in considering the question involved in that case, that the action was not brought to set aside the assignment on the ground of fraud, but, on the contrary, was brought in aid .of the assignment bécause of fraud on the assignment, such fraud consisting of the confession of a judgment to "Varrelmann by which preferences were given beyond the amount allowed by law. In such an action, brought for the purpose of putting in the hands of an assignee funds which had been fraudulently abstracted from the estate, it was clearly improper to give the relief of vacating the assignment as well as the judgment

It is a familiar principle that where a series of acts are done, all tending to one end, and there is a fraudulent purpose connected with any one of them, such fraud permeates the whole transaction, and the fraudulent intent vitiates each and every of them.

How, in the case at bar, if this transfer of accounts to Tilge was made in contemplation of the proposed assignment and for the purpose of evading the limitations of the law,. it is entirely immaterial whether Tilge & Co. were bona fide creditors and received the transfer in good faith or not If their transferors had a fraudulent intent it invalidated the transaction.

Without expressing any opinion upon what conclusions are to be drawn from the facts as they were developed upon the trial, it appears to me that the finding in regard to the relation of these transactions to each other was made by the learned judge below under a misapprehension of the law, and that, therefore, there should be a new trial in order that this evidence should be weighed unfettered by what it was supposed was decided in the cases in the court of appeals above cited.

The judgment should be reversed and a new trial ordered, with costs to the finally successful party to abide the final event.

Lawrence and O’Brien, JJ., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    William Waters, Individually and as Adm’r, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Reference—Consent in ignorance of death of necessary party.
    An order of reference was entered on consent of the attorneys, given in ignorance of the fact that one of the plaintiffs, who was a necessary party, died. Held, that such consent was neither valid nor binding, ana that a motion to vacate the order should have been granted.
    Appeal from order denying motion to vacate an order of reference.

      Davies & Rapallo (Julien T. Davies and Herbert Barry, of counsel), for app’lts; George William Hart, Jr., for resp’t.
   O’Brien, J.

This action was originally brought by the plaintiffs, James Waters and William Waters, to restrain the defendants from maintaining and operating their railway in front of plaintiff’s premises, with an accompanying demand for incidental relief by way of past damages. On January 2, 1891, James Waters, one of the plaintiffs, died. On April 10, 1891, and before any steps were taken to revive the action, the cause appeared upon the day calendar, and the attorneys, in ignorance of the fact that one of the plaintiffs had died, consented to the entry of an order directing the issues to be heard and determined by a referee.

On January 16, 1892, the plaintiff William Waters served notice of a motion to revive the action, which was withdrawn, but subsequently, and on February 18, 1892, renewed. After the entry of the order upon this motion to revive, the defendants moved to vacate the order of reference upon the ground that by the death of James Waters the action was suspended in the same manner as though it had abated, and all proceedings in the action taken prior to the revival were irregular and should be set aside. The learned judge below refused to vacate the order of reference, upon the ground that, “ as under the decisions of the court of appeals defendants never had a right to a trial by a jury, and would not have such right now if the order of reference was vacated,” the defendants were in no way injured or prejudiced, and that, therefore, the motion to vacate the order of reference should be denied.

Although we should agree with the learned judge that no substantial injury resulted from the order, and though the motion itself was a purely technical one, still the question remains whether the defendants were not legally correct in the position which they took.

By various sections of the Code provision is made for the continuation of actions which do not abate upon the death of one of the parties, in favor of the surviving parties, plaintiff or defendant. Secs. 758,759. Thus § 758 provides “ in case of the death of one of wo or more plaintiffs, * * * if the entire cause of action survives to or against the others, the action may proceed in favor of or against the survivors.” And § 759 provides for a contingency where death occurs and part only of the cause of action survives.

If, therefore, William Waters, upon' the death of James, could, without reviving the action, have proceeded, then, undoubtedly, the order of reference should not be disturbed; because as to his rights as against the defendants they could be determined upon such reference. The original plaintiffs were tenants in common, and, upon the death of James, unmarried and intestate, his interest in the property descended to his heirs-at-law; and it was made to appear upon the motion to revive the action that William Waters was the only heir-at-law and next of kin. It thus happens in this case that the interest in the fee of the property of the person dying descended to the surviving plaintiff, and, therefore, with respect to the action for trespass affecting the fee, it could be maintained by him. But even in such a case the better practice seems to be that a suggestion on the record should be made of the death, and the devolution of interest, even though the entry of a formal order be unnecessary.

As to the incidental relief relating to the demand for past damages, it was found necessary by plaintiff to revive the action in his own name individually and as administrator for his brother James.

The fact that an order to revive the action was necessary, with a view to have all the interests before the court, seems to us to be the crucial test to apply to the question as to whether the order of reference was regularly made. If the plaintiff could have proceeded with the action alone, and no order to revive or continue the action was necessary, then the respondent’s position would be the correct one. But if, upon the death of James Waters, a necessary party to the action was absent, then, while the action itself did not abate, there resulted, under well settled rules of practice, a suspension of the action until such time as a motion was made to revive or continue, and the persons succeeding to the interests of the party dying were brought in. In such a case any order entered in ignorance of the fact of death, made between such death and the time when a motion is made to revive the suit, is a nullity. A consent signed by the respective attorneys, in igno- ■ ranee of the fact that a necessary party to the action has died, and in a case where the presence of those upon whom his interests had devolved was necessary, cannot be regarded as either valid or binding, because unauthorized on behalf of the party dying, and therefore lacking in its character of mutuality; and an order purporting to be entered thereon would be irregular.

We think, therefore, that the proposition of the appellants is correct, that upon the death of James Waters a necessary party was absent from the action, and that all proceedings were suspended until his properly certified representative should be brought before the court; that the consent was not valid and binding because given in ignorance of the fact of death during this period when all proceedings were stayed; and that by reason of the fact of the order of reference entered thereon being irregular and unauthorized, the motion to vacate it should have been granted.

Our conclusion, therefore, is that the order appealed from should be reversed and the motion granted, with ten dollars costs and disbursements.

Van Brunt, P. J., and Lawrence, J., concur in result.


author: Lawrence, J.

text:
    David S. Brown et al., App’lts, v. John H. Doscher, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Teade-maek—Injunction pendente lite.
    An injunction pendente lite will not be granted in an action to restrain infringement of a trade-mark where it is not shown that the wrapper used by defendant is such an imitation of plaintiff's as to be likely to deceive a purchaser of ordinary caution, and it appears from the papers that plaintiff has been guilty of attempting to deceive the public by false statements as to his trade-mark.
    Appeal from order denying motion for injunction pendente lite.

    This action is brought to restrain defendant from using a wrapper around his “ Leader Soap,’’ picturing a snow storm. Plaintiffs, upon their “ Blizzard Soap ” wrapper, represent the height of a “ snow blizzard,” and print thereon the words, “ Form of cake and title a trademark secured.” This statement defendant showed by affidavits and searches in the office for registration of trademarks was not true.

      Rowland Cox, for app’lts; John Henry Hull, for resp’t.
   Lawrence, J.

No case was made out in the court below for the granting of an injunction pendente lite. The second wrapper of the defendants cannot, we think, be regarded as such an imitation of the plaintiff’s wrapper as to be likely to deceive a purchaser of ordinary care and caution. And to the first wrapper adopted by the defendant, but abandoned by him before the motion was heard, we deem it sufficient to say that in view of the allegation in the defendant’s affidavits, the plaintiffs were themselves guilty of attempting to mislead the public, by a statement upon the label used by them that the form of cake and title “ were protected by a trade mark secured,” which statement is shown by the papers to have been false. The plaintiffs have not shown such a superior equity as entitles them to a preliminary injunction.

We think that the rights of both parties can be more accurately determined and adjudicated upon the trial of the action, than upon a hearing on affidavits, and are, therefore, of the opinion that the order below should be affirmed, with costs and disbursements.

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


author: Van Brunt, P. J.

text:
    George P. Rowell et al., Resp’ts, v. Edward W. Lambert, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Manufacturing companies — Liability of stockholder for debts of COMPANY FOR FAILURE TO FILE CERTIFICATE.
    No liability exists, even where a certificate of full payment is not filed, for stock issued for property, unless fraud is established.

      2. Same—Pleading.
    A complaint simply alleging failure to file the certificate required by § 10 of the act of 1848, does not set up a cause of action against a stockholder, because he may be a holder of stock issued for property at its value. In order to make out a full cause of action, it should state either that the stock was issued apparently for cash and no certificate filed, or that it was issued for property at a fraudulent valuation.
    Appeal from judgment entered on verdict directed by the court.

      D. W. Richards, for app’lt; Philip Carpenter, for resp’t.
   Van Brunt, P. J.

This action was brought to recover from the defendant, as stockholder of a manufacturing corporation, a debt owing by the corporation to the plaintiff, on the ground that no certificate of full payment of capital stock was filed as required by the act of 1848. The defendant moved for judgment dismissing the complaint because there was no allegation that the stock was issued for cash rather than for property: The motion

was denied, and the plaintiff made formal proof of debt, of judgment against the corporation and return of execution unsatisfied, and rested. The defendant again moved to dismiss, which motion was denied, the court holding that the issuance of stock for property was an affirmative defense, and must be proved. The defendant offered no evidence, and the court directed a verdict for the plaintiff, and from the judgment thereupon entered this appeal is taken.

In this ruling, we think, error was committed. It is plain, from an examination of the complaint, that the theory upon which the action was tried was that, because no certificate that the whole amount of the capital stock fixed and limited by the articles of incorporation of said corporation had been paid in had been filed and recorded, as required by §§ 10 and 11 of chapter 40 of the Laws of 1848 and their amendments, a liability existed upon the part of the defendant as a stockholder. And the question involved upon this appeal is whether a cause of action is alleged against the stockholder of a corporation when the complaint alleges the ownership of stock and the failure-to file the certificate required by § 10 of the statute above-mentioned. Section 10 requires that all stockholders shall be severally liable to the creditors to the amount of their capital stock until the capital is paid in and a certificate thereof recorded. The president and trustees were by § 11 required to make and record this certificate, and as the law originally stood, § 14 provided that nothing but money should be-considered as payment of any part of the capital stock. In 1853 § 14 was amended by adding thereto that the trustees of such corporation might purchase property necessary for their business and issue stock to the amount of the value thereof in payment therefor, and that the stock so issued should be declared and taken to be full stock, and not liable to any further calls, neither should the holder thereof be liable for any further payments under the provisions of § 10.

It seems, therefore, that, under the language of this amendment, where stock was issued for property, the necessity for filing a certificate does not exist, as it is provided that the holder of such stock shall not be liable for any further payments under the provisions of § 10 of the act.

Therefore, if the stock was issued for property at its value, there can be no further call made upon the stockholder, whether the certificate is filed or not. Hence a complaint, simply alleging failure to file a certificate does not set up a cause of action against a stockholder, because such stockholder may be a holder of stock issued for property at its value. And this seems to have been what was held in the case of Brown v. Smith, 13 Hun, 408, and affirmed by the Court of Appeals, 80 N. Y., 650.

A similar rule was recognized in the case of Douglass v. Ireland, 73 N. Y., 100, where it held that, in order to maintain a recovery upon the ground that stock was issued in excess of the value of the property, it must be shown that the purchase was in bad faith and to avoid the statute. In other words, the transaction must be impeached for fraud, but. not for error of judgment or mistaken views of the value of the property, inasmuch as good faith in the exercise of an honest judgment is all that is required. The liability resting in fraud, it is a cardinal rule of the law that the party claiming must establish the existence of the fraud, and it cannot be presumed, and that a party defendant is never compelled to establish that there was no fraud.

Applying this principle to the case at bar, it is apparent that it is necessary, in order to make out a complete cause of action against a stockholder, to show either that the stock was issued apparently for cash' and no certificate filed, or that it was issued for property at a fraudulent valuation for the purpose of evading the statute. It cannot be, therefore, that a stockholder who seeks to evade liability must show the facts entitling him to relief. We think that the principles laid down in Wheeler v. Millar, 90 N. Y, 353, cited Toy the respondent, are entirely misapplied. The fact that a party is the holder of stock issued for property is not a defense, because the mere absence of a certificate creates no cause of action. The plaintiff must allege, if the stock has been issued for property, that it has been taken at a fraudulent valuation in order to set out a good cause of action. It is claimed that this rule is a great hardship, and that creditors are not expected to know whether stock has been issued for cash or property, which is a fact peculiarly within the means of the knowledge of the stockholder. That this argument cannot prevail is strikingly illustrated by the case of Griffeth v. Green, 129 N. Y., 317; 42 St. Rep., 101, where the liability depended upon the fact of the stock held by the party being part of an increase of the capital stock. Under those circumstances, in order to a recovery, the plaintiff was required to allege and prove this fact

It has been suggested that the case last cited was in conflict with the previous cases with reference to the necessity of the filing of the certificate and the question of the burden of proof.

We have examined the case in vain to find anything in conflict with the previous case upon this point; and we think that a reading of the statute clearly shows that no liability exists, even where a certificate is not filed, for stock issued for property, unless fraud is established.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

O’Brien, J., concurs.


author: Per Curiam.

text:
    Albert A. Cornish, Resp’t, v. Cornelia A. Capron et al. App’lts.

      (Court of Appeals,

      Filed December 13, 1892.)

    Deed— Warranty—Covenants.
    Defendant, after a formal and complete covenant of warranty, also-agreed to warrant and defend certain land conveyed to plaintiff against any person claiming the same, “ according to a mortgage that day assigned to the said Cornish.” Held, that the force and effect of the formal covenant should not be cut down by the terms of the special warranty.
    Appeal from judgment of the supreme court, general term,, fourth department, affirming judgment for plaintiff.
    In June, 1870, Jay Capron borrowed of Mary Banks the sum of $4,000, for which he gave her his bond conditioned for the payment of that sum January first, 1880, with interest, and as collateral security for the payment of that sum, he with his wife, Cornelia A Capron, gave to Mrs. Banks a mortgage on four parcels of land, designated in this record as 1, 2, 3 and 4. In April,, 1874, Mr. and Mrs. Jay Capron deeded parcel Ho. 1 to Platt E,. Capron, and in June, 1877, they conveyed to Elias Spencer parcels 3 and 4, and Spencer, in the deed to him, assumed and agreed, to pay the Banks mortgage. Prior to that time Spencer had also-become the owner of parcel Ho. 2. In June, 1877, Spencer conveyed parcels Hos. 2, 3 and 4, and also another parcel designated as Ho. 5, to Mrs. Capron. Parcel Ho. 5 was not covered by the-Banks mortgage. In April, 1887, Mrs. Jay Capron, for the consideration of $5,122.20, conveyed parcels Hos. 2, 8 and 5 to-James Watson, who paid $1,122.20 of the purchase price in cash and for the balance he assumed and agreed to pay the Banks'mortgage of $4,000, with interest thereon from January 1, 1878. To secure the payment of this sum Watson on the same day gave-back to Mrs. Capron a mortgage for $4,500 covering the lands conveyed to him, and in that mortgage he agreed with her that he-would pay, or cause to be paid the Banks mortgage according to the conditions thereof; that in case he, his heirs and assigns, should fail to pay Mrs. Banks, or her heirs and assigns, the principal sum of $4,000, and interest thereon, as conditioned in her mortgage, it should be lawful for Mrs. Capron to demand payment of the sum of $4,500 mentioned in the mortgage to her, which should become due and payable at once, and that it should then be proper for the owner or holder of the Watson mortgage to collect the same and after paying the Banks mortgage and all interest and costs thereon, to pay over the balance to Watson, his heirs and assigns; but that if the Watson mortgage failed to pay and satisfy the Banks mortgage, then Watson was to pay the deficiency. In July, 1883, Mrs. Capron, in consideration of $1,075, paid to her, conveyed parcel No. 4 to the plaintiff, and in the deed she covenanted that the premises so conveyed “in the quiet and peaceable possession of the said Cornish, his heirs and assigns, she would warrant and defend against any person lawfully claiming the same, according to a mortgage that day assigned to the said Cornish.”
    On the same day, and as a part of the same transaction, and resting upon the same consideration, the defendant Cornelia A. Capron assigned to the plaintiff the Watson mortgage, with the bond accompanying the same, and the money due, or to grow due, thereon, he to have and hold the same according to the conditions of the mortgage, but in no case to discharge the mortgage without the consent of Mrs. Capron, unless the Banks mortgage was fully paid and satisfied. The Watson mortgage so assigned has ever since been the property of the plaintiff. In 1887 the Banks mortgage was foreclosed, and in pursuance of the judgment of foreclosure all the premises therein described, including parcel No. 4, were sold to the defendant Bielby, and he took possession of the same. Thereafter the plaintiff commenced this action to foreclose the Watson mortgage and to recover damages against Mrs. Capron for breach of the warranty contained in her deed to him of parcel No. 4. The action was brought to trial, and the court at special term found that there was a breach of the warranty contained in the deed of Mrs. Capron to the plaintiff; that by reason of the breach the plaintiff was entitled to recover of her the sum of $1,075, with interest; that the plaintiff had the right to enforce the Watson mortgage for his own benefit to the extent of his claim against Mrs. Capron for breach of her covenant above referred to;. that the plaintiff was entitled to judgment of foreclosure, and that out of the proceeds of the sale, after payment of costs and expenses of the sale and of the action, the sum of $1,075 and the interest be paid to the plaintiff, and that if there should not be enough to make such payment, a judgment for the deficiency be entered against Mrs. Capron. Mrs. Capron filed proper exceptions to the findings of the trial court, and from the judgment entered appealed to the general term and then to this court. '

      Wm. E. Scripture and Oswald P. Backus, for app’lts; D. E. Wager, for resp’t.

       Affirming 36 St. Rep., 1019.

   Per Curiam.

The defendant, Mrs. Capron, agreed to warrant and defend the land conveyed to the plaintiff against any person lawfully claiming the same, “ according to a mortgage that day assigned to the said Cornish,” and the controversy between the parties to this appeal hinges upon the meaning and force of the phrase italicised. It is impossible to know with certainty what was in the minds of the parties when that phrase was used. It was preceded by a formal and complete covenant of warranty, and the force and effect of that covenant should not be cut down by any words of doubtful import, much less by words to which it is difficult to assign any definite meaning. It is probable that the parties meant by the phrase quoted one of two things: (1) either that the plaintiff should have for his protection the Watson mortgage, at the same time assigned to him, and that he should hold that mortgage as collateral security to the covenant, and that he should have the right, in case Watson did not pay the Banks mortgage, to enforce the Watson mortgage according to its terms, and to thus indemnify himself, so far as he could, for any damage he might sustain from a breach of the covenant; (2) or that he should have the same protection against the Banks mortgage which Watson, in his mortgage, had agreed to give her; and whichever of these meanings we attribute to this language, the same result is accomplished. We are at least unable to see that this uncertain language cuts down or limits the liability of Mrs. Capron upon her covenant, and so no error was committed in giving that covenant the force and effect provided in the judgment.

Watson not having paid the Banks mortgage, Mrs. Capron, if she had retained the Watson mortgage, could have foreclosed it for her indemnity, and the plaintiff, as her assignee, may enforce it to the same extent as she could if she had not assigned it.

There is no plausibility in the claim that the covenant for quiet enjoyment was not broken. The title was swept, away by the foreclosure of the Banks mortgage, and the plaintiff relinquished possession of the land as he was bound to do after the foreclosure and sale and the conveyance made in pursuance thereof.

We see no reason to doubt that the judgment is right and it should be affirmed, with costs.

All concur.


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

      (Court of Appeals,

      Filed December 13, 1892.)

    Jurisdiction—Costs.
    In an action upon two causes of action, one at law and the other in equity, the referee dismissed the first and gave plaintiff judgment on the second, with costs. On motion of defendant the fees of referee and stenographer were apportioned between the parties, and the costs of one party set off against the other and judgment given for plaintiff for his damages and the balance of the costs. Both parties appealed to the general term, and the judgment was affirmed upon both appeals. Upon appeal to this court, the judgment which gave plaintiff costs on the second cause of action was reversed, but defendant's judgment so far as it gave it costs was affirmed. Meld, that while the court below had no power to amend the judgment in any matter adjudicated by this court, jyt as the question of costs was not before this court the lower court retained its power to modify the judgment as to costs so as to restore defendant to the position it would have occupied if the costs had not been set off.
    Appeal from, judgment of the New York superior court, general term, affirming order granting motion to vacate order setting off costs and amending judgment so as to make it include costs to which defendant was originally entitled but which were extinguished by the set off.

      George G. Genet, for app’lt; Frank F. Smith, for resp’t.

       Affirming 47 St. Rep., 291.

   Per Curiam.

The complaint in this action stated two separate and distinct causes of action, one at law for the recovery of money only, and the other in equity for an injunction and damages. The action was put at issue and tried before a referee, who, after hearing the evidence, dismissed the first cause of action on the merits and gave the plaintiff judgment on the second cause of action, with costs. The defendant then moved that the fees of the referee and stenographer be apportioned between the parties, and that the costs of one party, when taxed by the clerk, be set off against the costs of the other, and that judgment be entered for the balance only; and the motion was granted. Costs of the respective parties were then taxed by the clerk, those of the defendant at $570.44, and those of the plaintiff at $618.67. Thereafter judgment was entered on the referee’s report in favor of the plaintiff for his damages and $48.23, the balance of his costs.

From the judgment thus entered both parties appealed to the general term, which affirmed the judgment upon both appeals, without costs. From the judgment of the general term both parties appealed to this court, and here judgment was rendered as follows ; that the judgment, so far as appealed from by the plaintiff, be affirmed, and the judgment, so far as appealed from by the defendant, be reversed and the complaint dismissed with costs. Thereafter an order was made in the superior court making the order of the court of appeals the order of that court. Thus it turns out that the judgment which gave the plaintiff costs on his second cause of action has been reversed, and he is entitled, therefore, tó no costs against the defendant The judgment, so far as it gave the defendant costs against the plaintiff, has been affirmed, but its costs have been applied upon the plaintiff’s costs and substantially used to pay his costs, so far as they were sufficient for that purpose. The defendant has now made a motion to correct nunc pro tune the original judgment, so that it will award each party costs as adjusted, and thus that the judgment will give the plaintiff costs for $618.67, and the defendant costs against the plaintiff of $570.44. As the plaintiff’s judgment has been reversed the result of the amendment is to restore to the defendant its costs as originally adjusted. It is simply a mode of awarding restitution to the defendant of the costs substantially paid by it to the plaintiff

We have no doubt of' the power of the court below to thus amend its judgment It had no power to amend the judgment in any matter adjudicated by this court, the decision of this court as to such a matter being final. But the question of costs was not before this court and did not enter into the adjudication made by it, and the court below retained its power to modify the judgment below as to costs so as to restore the defendant to the position it would have occupied if the costs of one party had not been, set off against the costs of the other under the order of that court

We think the order is right and should be affirmed, without costs.

All concur, except Beckham arid Gray, JJ., not voting.


author: Finch, J.

text:
    In the Matter of Last Will of James McClure, Deceased.

      (Court of Appeals,

      Filed December 13, 1892.)

    Will—Coxstbuction. .
    Testator left him surviving a son, two daughters, and five grand-children. He was a man of average education and drew his own will, containing these words, “ I give and bequeath unto my beloved wife, Mary I. McClure, all my real estate owned by me of every name and discription; also all my pe;sonal property of every kind and nature; also my life insurance, stock and mortgages, to have and' to hold, with full power to collect all rents and income from the same, she to keep in repair and pay all taxes and insurance on the sanie, with full power to sell any or all such real estate with the consent of my executors should it be thought best for the estate; should she marry again then her right of dower only in my estate. I recommend she appoint a good agent to take charge of my real estate. I also give her discretionary power to give such sums of money to any, as she may think prudent, of my relatives.” There was no mention of children or grand-children, not even of the son living with him in the household. Held, that the widow takes only an estate for life in the real and personal property.
    Appeal from judgment of the supreme court, general term, third department, reversing decree of surrogate of Albany county. George H. Stevens, for app’lt; Francis H. Woods, for resp’t.
   Finch, J.

The testator’s will gives to his widow the whole of his real and personal property, either absolutely or for life; and which was his real meaning and intention becomes the single question in the present controversy. The will was written by himself, upon one of the ordinary printed blanks prepared for that purpose, and, so far as we know, without aid or advice from other sources. He was a tinsmith by trade, and had slowly and laboriously amassed a moderate fortune of about $96,000 in real estate and $68,000 of personal property. Nothing in his history or mode of life indicates that he possessed more than an average education and intelligence; and we must not expect to find in the instrument which he drew the accuracy and precision of legal experience and training. We may be sure that he used .words in their ordinary and prevailing sense, and construed his sentences with the usual ability of an intelligent artisan, but nothing more. At his death, his household comprised his wife and his son William, the latter of full age, and the former about sixty-eight. He had two daughters living, each of whom was married, and five grandchildren, who were all minors and children of two of his deceased sons. They lived with and were supported by their mothers, who bad no property of their own and were dependent upon their personal labor for a livelihood. The testator seems not to have contributed to their support and had no great liking for them, as the widow intimates in her evidence.

The devise and bequest to her is in these words: “I give and bequeath unto my beloved wife, Mary I. McClure, all my real estate owned by me of every name and description; also, all my personal property of every kind and nature; also, my life insurance, stocks and mortgages, to have and to hold, with full power to collect all rents and income from the same, she to keep in repair and pay all taxes and insurance on the same, with full power to sell any or all such real estate, with the consent of my executors, should it be thought best for the estate; should she marry again then her 2-ight of dower only in my estate. I recommend she appoint a good agent to take charge of my real estate. I also give her discretionary power to give such sums of money to any, as she may think prudent, of my relatives.” That is all there is of the will except that he appointed the widow executrix and Mr. Frothingham executor. There is no mention of children or grand- children, and not even of the son living with him in the household. _ _ _

_ _ _ It is quite apparent that there are inconsistent provisions in the testator’s disposition of his property. Some of them might possibly be reconciled with an absolute devise and bequest, but two of them cannot be. The provision which purports to confer upon the widow power to sell the real estate devised with the consent of the executors and if it should be thought best for the estate, is entirely inconsistent with a conscious intent to vest in her an absolute fee. To that an unrestrained power of disposition is essential and necessarily belongs. The testator well knew the fact He comprehended what his own absolute ownership of his land was, and that no power to sell it was necessary to be conferred by any body or from any direction. He understood that the power was his and inherent in his ownership, and if he had supposed that he was giving a similar ownership to his wife it is not conceivable that he would have solemnly conferred a power of sale which she already had; still less that he would have destroyed the character of the devise by making the devisee’s right of disposition dependent upon the consent of the executors and conditioned upon their judgment that it should be “best for the estate.” Then, too, the discretionary power which he confers to give such sums of money as she may think prudent to any of his relatives, is equally inconsistent with a conscious knowledge, on his part, that he had already given her his whole property absolutely; that she could do as she pleased with it; that she already had power to give what she chose not only to his relatives, but to any one else whom she might desire to benefit.

On the other hand, these careful and repeated grants of power to sell the real and give away portions of the personal estate are entirely consistent with an intention to vest in the widow a life estate merely. To such an estate a power of sale or authority to give are natural and appropriate, and the restraints which narrow and hamper the power are consistent with the character of the estate granted.

Then, too, the further powers and directions which accompany the devise, and which, if not vitally inconsistent with it, are at least superfluous, unnatural and unexpected, become reasonable, and have adequate explanation on the theory of a life estate. The testator gives full power to collect all rents and income, requires her to make repairs and pay all taxes and insurance. Of course he knew if she became absolute owner that she had authority to collect rents and income and did not need that he should specially confer it; that the duty of making repairs and paying taxes and insurance would rest on her in her own interest ; and beyond that he further knew that his requirement would have no force or effect, and that she could omit repairs and neglect to pay taxes, and that without the least regard to his idle command. On the other hand, he may not have known, and probably did not know, the legal relation of a tenant for life to a remainderman, or that the bare creation of the estate made his requirements to some extent unnecessary, and so he chose to make her duty sure and clear whatever the legal rule might be.

The interpretation of the will presents to us, therefore, the alternative of cutting off provisions repugnant to an absolute ownership, or allowing them to qualify the estate primarily given. It is quite true that where there is a primary devise so framed as to convey a distinct and definite estate it will not be cut down by later words which are merely ambiguous and inferential, Clarke v. Leupp, 88 N. Y., 231, and that if the gift here in question had stopped with the words “ to have and to hold ” it would have been sufficient to have passed an absolute estate. But it did not stop there, and some of the after words are not at all ambiguous. They are clearly repugnant, for they take away the absolute power of disposition, or they mean nothing. On the other hand, the words of primary devise are not inconsistent with a life estate, Terry v. Wiggins, 47 N. Y., 515, and the theory of such an estate intended harmonizes and makes consistent all the words of the testator.

An attempt at such harmony is made in behalf of an absolute ‘ fee by calling the inconsistent provisions merely words of caution or advice. But a formal grant of a power of sale upon express conditions is something very different from caution or advice, and it is pointed out to us that when the testator meant merely to recommend the appointment of an agent he used that exact word.

I think that what was in the testator’s mind is indicated also by one of his expressions limiting the power of sale which he gave. It was to be exercised with the consent of the executors, and “should it be thought best for the estate.” He contemplates the estate as remaining in the widow’s hands, and as the subject of care and preservation, and the form of which was not to be changed except upon the judgment of the executors; a direction compatible with and appropriate to a life estate, but singularly inappropriate to an estate in fee, unless it be deemed, what it is not, a mere sentence of advice.

The fact is not to be overlooked that the construction of a life estate involves a partial intestacy, and that the courts presume against such an intention. But this will clearly and forcibly rebuts that presumption, for it shows that in one emergency the testator did mean and contemplate intestacy to even a greater extent. He says of his wife, “should she marry again, then her right of dower only in my estate.” That possible emergency came into his mind, and he cut her estate down to a mere dower, leaving the fee undisposed of, and consciously committing its devolution to the laws of descent. If lie contemplated intestacy in one event, and was satisfied to permit its occurrence, by what logic do we say that he was not conscious of and contented with the lesser intestacy following upon the close of the life tenancy ?

And so, taking the whole will together, and seeking, as it is our duty to do, to harmonize all its provisions, and give them effect, we are led to the conclusion that the widow takes only an estate for life in the real and personal property.

The judgment of the general term should be affirmed, with costs of both parties in all the courts payable out of the estate.

All concur.

       Affirming 44 St. Rep., 729.


author: Andrews, J.

text:
    Thomas Poole Soper et al., App’lts, v. George W. Brown, Trustee, Resp't.

      (Court of Appeals,

      Filed December 13, 1892.)

    1. Will—Meaning of “issue.”
    Where there is a gift to a child for life and over on the death of such child in default of “issue,” the reasonable construction'in such cases is that the gift over was intended to take effect only on the extinction of the line of descent from the first taker, and that the word “issue” has the same meaning as descendants.
    8. Same.
    OneP., by his will, left certain real property to executors under four separate trusts, for the lives of his daughters, with remainder in fee to the lawful issue of each of said daughters, ‘ ■ and for want or in default of such issue, then to all my grand-children who may then be living, as tenants in common, his, her or their heirs or assigns forever.” Held, that the word “issue ” included the great grand-children of testator, whose mother had died prior to the death of testator’s daughter.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of defendant, entered upon a decision of the court.

      Geo. H. Adams, for app’lts. Josiah T. Marean, for resp’t.

       Affirming 47 St. Rep., 376.

   Andrews, J.

Thomas Poole died in 1831, leaving surviving Mm five daughters, Letitia, Eliza, Mary, Sarah and Margaret. At his death he owned a-farm in what is now the city of Brooklyn. By his will, after giving a small legacy to his daughter Letitia, he devised his farm in specific parcels to trustees upon separate trusts for the benefit of his four daughters, Eliza, Mary, Sarah and Margaret, respectively, for life. The remainder, embraced in the trust for his daughter Eliza, was devised in the following language : “ Upon the death of my said daughter Eliza, my further will is that the aforesaid (lands) in this clause of my will devised for the use and benefit of my daughter Eliza, with the appurtenances thereunto belonging, shall go in fee simple as tenants in common to the lawful issue of my said daughter Eliza, if more than one, share and share alike, and for want or in default of such issue, then to all my grand-children who may then be living, as tenants in common, his, her or their heirs or assigns forever.”

The remainder in the lands devised in trust to his other daughters for life, are given in similar language. The daughters, Letitia, Eliza and Mary were married at the time of the making of the will and at the death of the testator, and the daughters Letitia and Eliza each had children. The two children of Eliza died after the death of the testator, and before the death of their mother, but each left children surviving her, and. on the death of ' the testator’s daughter Eliza there were living two children of a deceased son of Eliza, three children of Eliza’s deceased daughter Margaretta, and three children of a deceased child of Margaretta. The descendants of Eliza living at her death were, therefore, five grandchildren and three great grandchildren.

The plaintiffs are children of the testator’s daughter Letitia, and claim a share of the lands in controversy, part of the lands embraced in the trust constituted by the will of Thomas Poole for the benefit of his daughter, Eliza, on the ground that Eliza left no “issue” surviving her at her death, and that, therefore, the gift over, for the want or in default of such issue, to “ all the (testator’s) grandchildren,” took effect.

This claim, if well founded, excludes the descendants of Eliza from any share in the property of the testator, sirice none of them stood in the relation of grandchildren to the testator, Thomas Poole, and the whole of Eliza’s portion is diverted from her line, and goes to children of her sisters.

The question turns upon the meaning of the word “ issue ” in the gift in remainder “ to the lawful issue of my said daughter Eliza.” It is insisted on the part of the plaintiff that the word means “ children,” and that the testator’s intention was to provide for his grandchildren only, and to cut off on the death ■ of any daughter all in the line of descent from such daughter who were not in that relation to the testator. This contention, which naturally shocks the sense of justice, must be maintained, if required by settled rules of construction. They cannot be varied to meet a supposed hardship in a particular case, although the court would be justified in searching the will to discover, if possible, some explanatory or qualifying provision which would indicate that particular words were used in a sense consistent with what seems to be, under the circumstances, the natural intention and the ordinary dictates of feeling and affection.

It is claimed that the word “ issue ” used in a will, when unexplained by'the context, has the meaning of “children.” If this predicate is justified it bears strongly in favor of the construction claimed by the plaintiffs, for it must be admitted that there are but very slight indications, if any, in the will, that the word was used in any other than its legal sense. But I am of opinion that the word “ issue ” in a deed or will, when used as a word of purchase and where its meaning is not otherwise defined by the context, and there are no indications that it was used in any other than its legal sense, comprehends all persons in the line of descent from the ancestor and has the same meaning as “ descendants,” and that while it embraces the children of the ancestor, it is because they are descendants in common with all other persons who can trace direct descent from a common source. It is common learning that this has been the accepted meaning of the word “ issue ” in that large class of limitations to issue of the first taker, accompanied with a gift over in default of issue.

This question, which has given rise to a mass of abstruse and difficult learning, has been, whether in particular deeds or wills, an indefinite failure of issue was intended, which would render the gift over void as a perpetuity, or a failure of issue living at the death of the first taker, or on the happening of some other event within the period allowed by law for restraint of alienation. In this state the statute has wisely solved these distressing perplexities and makes a limitation over to issue on the death of the first taker to mean issue living at his death. 1 Rev. St., 724, § 22. But it was never contended, so far as I know, in these cases that the word “issue” meant “children,” to the exclusion of remoter descendants.

There are many authorities on wills in which the word has been construed to mean “ children ” only. These authorities rest upon the undisputed principle that words used by a testator in his will are to be interpreted in the sense which he attributed to them, where it appears by the context that they were not used in their strict legal sense. It is but one of the applications of the doctrine that in the construction of wills the intention of the testator is to govern when not inconsistent with the rules of law.

In Sibley v. Perry, 7 Ves., 522, the word “issue ” was held to mean “ children,” because coupled with, and as the antithesis of the word “ parent,” but Lord Eldon, while reaching this conclusion upon the words of the particular will, said : “ Upon all the cases this word (issue) prima facie will take in all descendants beyond immediate issue.” Palmer v. Horn, 84 N. Y, 516, was a case of the same character, where the word “issue” was held to mean “ children ” from its juxtaposition with the latter word, which explained and limited it.

Mr. Jarman and other text writers state the rule in conformity with the great weight of authority, that while the meaning of the word “issue” is not inflexible, and may in some cases designate “ children ” only, depending upon the intention as disclosed upon the whole instrument, nevertheless, where its meaning is not restrained by the context, it is to be interpreted as synonymous with “ descendants,” and as comprehending objects of every degree, and that the construction is the same whether used in a bequest or devise. 2 Jar. on Wills, 101; 2 Wms. on Ex’rs., 1112; 2 Wash, on Real Prop., 561.

Iu the early case of Cook v. Cook, 2 Vern., 545, which was the case of a devise to the issue of J. S., it was held that children and grandchildren were comprehended. It is urged that the popular meaning of the word “ issue ” is synonymous with child or children. If this were admitted it would not control the construction of a formal legal will, where words are supposed to be used in their legal sense in the absence of a contrary indication.

In a note in Kent’s Commentaries, vol. 4, p. 278, said to have been written by the author, it is stated that the word “ issue ” is generally used as synonymous with child or children, and in Ralph v. Carrick, L. R, 11 Ch. Div., 882, James, L. J., remarks that this was its popular meaning. But with great respect I am not sure that this is correct as a general proposition. It is very unusual, I think, for a parent to speak of his children as his issue, either during life or in a testamentary instrument. When one speaks of the “ issue ” of a person deceased, I think in most cases he would intend his descendants in every degree. In popular language, if one speaks of the issue of a marriage, he probably means the children of the marriage. The collocation of the words “ issue ” and “ marriage ” makes this in the case supposed the natural meaning.

It was said by Lord Loughborough in Freeman v. Parsley, 3 Ves., 421, that “ in the common use of language, as well as in the application of the word issue ’ in wills and settlements, it means all indefinitely.” This seems to me to be nearer the truth than the opposite view, or. at least I am of the opinion that in the majority of cases where the word “issue” is used, it is used in its legal sense. There are cases where it may be conjectured that this broad meaning would produce a result not contemplated by a testator.

It is settled that under a gift to “ issue,” where the word is used without any terms in the context to qualify its meaning, the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of deceased children, take in equal shares per capita and not per stirpes, as primary objects of the disposition. It might well be doubted whether a testator actually contemplated that the children of a living parent would take an equal interest with the parent under the word “ issue,” or that the issue of a deceased child should not take by representation the share of its parent. Lord Loughborough referred to this in Freeman v. Parsley, supra, aud while he held that all were entitled equally per capita, said that he expected that it was contrary to the intention, and regretted that there was no medium between the total exclusion of the grandchildren and admitting them to share with their parents.

But in a case like the present one, where there is a gift to a child for life and over on the death of such child in default of issue, it would be an unnatural construction which would exclude all but the immediate children of the first taker, in favor of the other branches of the family. The reasonable construction in such cases is that the gift over was intended to take effect only on the extinction of the line of descent from the first taker.

We perceive no sufficient indication in the will now in question which would justify overriding the legal meaning of the word “ issue," and confining it to the sense of “ children.” The fact that the gift over in default of issue of any child was to “ grandchildren,” and that remoter descendants could not take under this limitation, is quité indecisive. The testator may have considered that he had made sufficient provision for the remote descendants of his daughters in providing that their issue should take the portion of the ancestor, and that in providing for the contingency of the death of any one of‘these without issue, it was not necessary or desirable to have regard to any except grandchildren. Whatever may have influenced the testator in confining the gift over to grandchildren, this affords no definite indication of a purpose to restrict the meaning of the word “issue ” in the primary gift. The same remark is applicable to the gift of the residuary personal estate to his grandchildren on the death of the last survivor of his four. daughters.

The will received, we think, a proper construction in the courts below. Even if the construction given may b.e doubtful, it is a settled rule that where a will is capable of two constructions, one of which would exclude the issue of a deceased child, and the other permit such issue to participate in a remainder limited upon a life estate given toi the ancestor, the latter should be adopted. In re Brown, 93 N.Y., 295, and cases cited.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Elias S. Higgins, App’lt, v. The Mayor, etc., of the City of New York, Resp't.

      (Court of Appeals,

      Filed December 13, 1892.)

    Abatement and bevtvor—Devisee of bead estate—“Successor in interest ”—Code, § 757.
    Where the plaintiff in an action to determine claims to real property died after the vacation by him of the judgment against him, a devisee of plaintiff's interest may he compelled by defendants under § 757 of the Code to continue the action, though against his will. He is such a “ successor in interest” as was intended to be provided for in said section.
    Appeal from judgment of the supreme court, general "term, first department, affirming order substituting Eugene Higgins as plaintiff herein, and requiring him to proceed with the action.

      Aaron Pennington Whitehead, for app’lt; D. J. Dean, for resp’t

       Affirming 45 St. Rep., 696.

   Per Curiam.

The plaintiff brought this action to compel the determination of a claim to certain real property in New York city, upon which he had constructed certain manufacturing works, and the trial resulted in a verdict of a jury for the defendants. On plaintiff’s motion the judgment entered for the defendants was vacated pursuant to certain provisions of the Code of Civil Procedure, and a new, trial was ordered; the plaintiff paying all the costs in the judgment Thereafter, and before the action was brought to trial, he died, and the defendants then applied for and obtained an order substituting Eugene Higgins as the plaintiff’s successor in interest, as plaintiff in the action, and directing him to prosecute the action pursuant to the provisions of the order which had vacated the previous judgment and had ordered a new trial of the issues.

The general term have affirmed this order and, upon the further appeal to this court of Eugene Higgins, the substituted plaintiff, it is argued that § 757 of the Code did not cover the case of a devisee; nor intend that he should be compelled to litigate the title to real property against his will. We think- the court has not erred in granting the defendant’s application. Under the plaintiff’s will, Eugene Higgins was the devisee of the plaintiff's interest in the property affected, and, by § 757 of the Code, the court was authorized, upon a motion, to compel the action to-be continued by the successor in interest of the deceased plaintiff. The words “ successor in interest,” which are used in the section, refer, obviously, to such a case as this. In Coit v. Campbell, 82 N. Y., 509-516, an action to reach certain lands, the title to which was in defendant Palmer, a motion by plaintiff was denied, which sought to have the executors of .Palmer, deceased, substituted as parties to the action in his stead.

In the opinion of this court it was said, and with reference to the language of this section, “ there is nothing to show that Palmer’s executors are his successors in interest in this litigation. It does not appear that he devised the land in question to his executors, or that they have any interest in it.”

We have no doubt that Eugene Higgins was such a successor to the plaintiff’s interest as was intended to be provided for in the Code, and there is nothing to show that he had renounced his interest as devisee under the will. It may be further observed that there appears to be much reason in support of the order. The defendants had recovered a judgment upon issues which presented for determination, on the one side, the plaintiff’s claim te the possession of the land, and, on the other side, the defendants’ claim to an estate in fee. The judgment having been vacated, and that determination thus lost to the defendants, they should not be deprived of the new trial which was ordered as to the issues presented. If it is of advantage to them that the title should be determined in this action, they have a reasonable, as'well as a clear, right to demand its continuation by the person who has succeeded to and represents the plaintiff's interest.

The order "should be affirmed, with costs.

All concur.


author:
Fitzsimons, J.
      Newburger, J.

text:
    The Central Gas & Electric Fixture Co., Resp’t, v. August Kohn, App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Guaranty—Consideration.
    Defendant, in consideration of one dollar paid and of $110 to be paid by plaintiff to him, guaranteed the payment to it by one C. of a cenain sum for fixtures when hung, and agreed to pay the same on a specified day unless C. paid the same. C. failed to have the building in condition to permit plaintiff to finish the work at the time specified, but subsequently nearly all the fixtures were hung. The $110 were offered to defendant six months after the guaranty was made, but were not left with him. Held, that defendant was not released from liability by these facts, and that a recovery by plaintiff was proper.
    (Newburqer, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Wm. J. Lippman, for app’lt; Birdseye, Cloyd & Bayliss, for resp’t.
   Fitzsimons, J.

The plaintiff agreed with one Carey on April 15, 1891, to furnish and hang certain gas fixtures in house at One Hundred and Fourth street and Eighth avenue for the sum of $1,350, to be completed May 1, 1891.

■ On April 16, 1891, the following agreement was made by defendant with plaintiff.

“ In consideration of the sum of one dollar to me in hand paid by the within named Central Gas & Electric Fixture Company, the receipt of which is admitted, and of the sum of $110 to be paid to me,- and of other good and sufficient considerations, me hereunto moving, I hereby guarantee the payment of the within named sum of $1,350 by the said Carey to the said company for said fixtures when hung as therein stated, and promise and agree to pay the same to the said company on the 15th day of May, 1891, unless the said Carey shall, on or before said date, pay the same to the said company in full.”

The failure of Carey to have the buildings mentioned in a condition so as to permit plaintiff to hang the fixtures on or before May 1st, and the fact that such fixtures were only partially put up at that, and that subsequently nearly, all the remainder were placed in position, does not free defendant from his obligation to pay therefor; that was the fault of Carey, not the fault of plaintiff

Plaintiff is entitled to a recovery against defendant, even though the contract made with Carey was only ■ substantially performed.

The plaintiff was not required to actually pay the $110 mentioned in the guarantee to defendant before he received the $1,350 provided for in such guarantee.

The performance of these several acts were independent of each other, and it was only necessary for plaintiff to tender said $110 at most; the defendant was then required to perform his part of the contract; his failure to do so entitled plaintiff to institute against him this cause of action..

We find no error. Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs in result.

Newburger, J.

(dissenting)—This is an appeal from a judgment entered upon a verdict in favor of the plaintiff.

The plaintiff, in writing, offered to place gas fixtures in certain apartment houses in this city, which offer was accepted by the then owner, one John J. Carey. Subsequently the defendant executed a guarantee as follows:

“In consideration of the sum of one dollar to me in hand paid by the within named Central Gas & Electric Fixture Company, the receipt of which is admitted, and of the sum of $110.00 to be paid to me, and of other good and sufficient considerations me hereunto moving, I hereby guarantee the payment of the within sum of $1,350.00 by the said Carey, to the said company, for the said fixtures when hung as therein stated, and promise and agree to pay the sum to the said company on the 15th day of May, 1891, unless the said Carey shall on or before the said day, pay the sum to the said company in full.”

On the trial of this action, at the close of plaintiff’s case, defendant moved to dismiss the complaint on the ground, among others, of the invalidity of the tender made by the witness Coles on behalf of the defendant, which motion was denied and exception taken.

It appears that the guarantee was signed and delivered on or about the 16tli day of April, 1891, and that the sum of one hundred and ten dollars ($110.00) agreed to be paid by plaintiffs to the defendant was not then paid.

On October 13, 1891, more than six months thereafter, Coles offered the defendant $110 in greenbacks, and asked the defendant to carry out his contract. -

He did not leave the $110 with the defendant, although said defendant was willing to accept the sum.

The complaint should, therefore, have been dismissed.

, Before the plaintiff can recover, it is necessary for it to show that the consideration referred to in the guarantee was fully paid, and as it appears uncontradicted that the amount of the consideration referred to in the guarantee was not paid, the trial justice erred in denying defendant’s motion.

For these reasons the judgment must be reversed, a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.


author: Newburger, J. Fitzsimons, J.

text:
    Lena Schmidt, by Guardian, Resp’t, v. Valentine Cook et al., App’lts.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    N EGLIGBN CE—CONTRIBUTORY—INFANTS.
    Plaintiff, who was a girl eleven years old, and attended school, Sunday school and church, while playing with other children in the yard of a house belonging to defendants, was injured by the fall of a flasrstone which had stood upright against a fence for four months. She had seen it m that condition during that time, and at the time of the accident was playing on and around it. TTeld, that she was guilty of contributory negligence, and that the complaint should have been dismissed.

      Appeal from judgment in favor of plaintiff, entered upon verdict.

      Jeroloman & Arrowsmith, for resp’t; Edward M. Burghard and Lewis Sanders, for app’lts.
   Newburger, J.

The plaintiff, a child of eleven years, was injured while playing with some other children in the yard of a house belonging to defendants, by moving a flagstone leaning against the fence, so as to cause it to fall over upon her foot, crushing one of the toes.

The stone was thirty-three (33) inches long, twenty-five (26) inches wide, and three (3) inches in thickness, and stood up straight or upright against the wall and fence in the yard of said premises.

The stone had been standing in that dangerous condition for three months or more before the accident.

On the trial of the action, the defendants moved to dismiss the complaint, upon a number of grounds.

Whether the complaint should have been dismissed on the ground that the negligence of the plaintiff contributed to the accident is the only question which we shall now discuss.

The plaintiff, in order to recover, had the burden of proving, first, that the defendant was guilty of negligence, and second, that she was free from all fault contributing to the result.

It appears that the stone had been leaning against the fence for three or four months, and that plaintiff had seen it during that time in the dangerous condition that it stood.

On the day of the accident, the plaintiff, while playing, used the stone, as she expressed it, for the purpose of playing piano, and continued around it, knowing the dangerous condition.

There was no evidence authorizing the jury to find that the plaintiff observed that degree of care and caution which the law imposes.

If she had been an adult, therefore, it would have been the duty of the court to dismiss the complaint.

Does a different rule apply because the plaintiff was a girl, only eleven years of age? An infant of tender years is not expected to exercise the same care and caution which is required of a person of more advanced age, so that it frequently becomes a question for the jury, whether the child exercised that degree of care and caution which should be required and expected from it.

In the case of Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y., 420, the plaintiff’s intestate, a boy of seven years of age, was held to have been guilty of negligence, it appearing that he was a bright, active boy, capable of understanding the peril of the situation, which he recklessly encountered, resulting in his death.

In the Reynolds case, 58 N. Y., 248, a bright and intelligent boy, thirteen years old, was killed while crossing a railro'ad track. The plaintiff was unable to show that his intestate observed that care which was required of a person crossing a railroad track, and the court, having under consideration the distinction which the law makes between those who are sui juris and non sui juris, held that plaintiff should have been non-suited.

In the case of Tucker v. The N. Y. C. & H. R. R. R. Co., 124 N. Y, 308; 36 St. Rep., 272, the plaintiff’s intestate, a boy twelve years old, intelligent, accustomed to attend school, was held guilty of negligence, and that plaintiff should have been non-suited.

The fact that the girl, Lena Schmidt, was eleven years of age, attended school, Sunday school and church, seems to bring this ease within the rule of the cases before cited.

Aside from the evidence of the girl’s age, no fact was adduced to show that she was not as well qualified to understand and appreciate the danger which overtook her as an adult.

At what age an infant’s responsibility for negligence is presumed to commence is not a question of fact for the jury; it is a question of law for the court.

The complaint should, therefore, have been dismissed.

For these reasons, the judgment must be reversed.

Ehrlich, Ch. J., concurs.

Fitzsimons, J.

In this action it was plaintiff’s duty to establish negligence on defendant’s part and freedom from contributory negligence on her own part.

The pleadings admit that, at the time plaintiff was hurt, defendants were the owners of the premises described in the complaint, but there is nothing in the pleadings or testimony to show that the defendants retained and had under their control the yard of said premises; for aught that appears the yard may have been rented to the Lieber family, who rented the basement and floor above the same, and under their control the entrance to the yard could, apparently, be obtained only by going into and through the part of the house rented to the Liebers.

Before the plaintiff could recover it was her duty to establish an obligation on defendants’ part to keep the yard free from dangerous things.

Wo such obligation devolved upon them unless they retained control of the yard, after renting the premises, as shown by the testimony.

We cannot assume that they retained such control. It was plaintiff’s duty to prove it. Having failed to do so, I think that the trial justice erred in his refusal to grant the motion made by defendants’ counsel at the close of plaintiff’s testimony to dismiss the complaint upon the ground that the plaintiff failed to prove or allege any breach of duty from the defendants to the plaintiff, by reason of which she was injured.

Besides, I think that the testimony shows that plaintiff was guilty of contributory negligence, granting that defendants were guilty of negligence.

The plaintiff, at the time she was injured, was between ten and eleven years of age. Her testimony shows that she is a bright, intelligent child, and apparently her counsel thought that she possessed an accurate, reliable judgment and was a discerning person, for she testified to answer to his questions, “ that she did not know that the stone as it stood was dangerous," and many other statements made by her show that she is more than ordinarily intelligent. Under the circumstances she had the capacity for forming a judgment as to the probable results of her actions, and if she exercised bad judgment concerning the same, she must put up with the consequences just as if .she were an adult person.

Upon this phase of the case her testimony shows, that she saw how the stone stood, “right up straight” against the fence, and notwithstanding this fact, she put her foot between the fence and the stone and was playing on and around the stone, when it fell, injuring her. In view of the fact that the testimony shows that the stone stood as plaintiff found it immediately prior to its fall upon her for four months, and even her own mother saw it in that position for some weeks prior to that time, proves, I think, that it was .not in a dangerous position, and was only made so and caused to fall over by plaintiff's interference, and, therefore, I think that plaintiff was guilty of contributory negligence, which, of course, absolves defendants from all liability to her; besides she, having seen the position of the stone, was in a position to know whether or not its position was dangerous ; if she deemed it safe, when really it was dangerous, she erred and thereby used bad judgment, she must suffer the consequences of her rash act.

The complaint should have been dismissed upon the ground of contributory negligence on plaintiff’s part.

For these reasons the judgment must be reversed.

Judgment reversed, complaint dismissed, with costs.


author: Fitzsimons, J. Ehrlich, Ch. J.

text:
    The New York Real Estate & Building Improvement Co., App’lt, v. Thornton N. Motley, Resp’t.

      (City Court of New York, General Term,,

      Filed November 25, 1892.)

    Lease—Termination by bire—Laws 1860, Chap. 345.
    A lease of a portion of a building providing that in case of damage by fire, the elements or otherwise, without fault of the tenant, he should continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time repairs are being made; but if the building is so damaged or destroyed as in the judgment of landlord to require to he rebuilt, then the lease is to determine and the premises be surrendered, does not deprive the tenant of the benefit of chapter 345, Laws 1860, and upon the premises becoming so damaged by fire as to be untenantable, although the building is not injured so as to require rebuilding, the lease is terminated so as to relieve the tenant from payment of rent. * (Ehrlich, Ch. J., dissents.)
    Appeal from judgment in favor of defendant.

      N. B. Sanborn, for app’lt; Cardozo Brothers (David Leventritt, of counsel), for resp’t.
   Fitzsimons, J.

The parties mutually executed a lease containing the following provision :

And it is further agreed, by and between the parties hereto, that if without fault, neglect or improper conduct of the party of the second part, his agents, servants or tenants, the premises hereby leased, or the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs; but if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then, from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.

The premises demised to defendant consisted of the basement, cellar, first and second floors; there were several other floors in the building.

Defendant’s premises were so damaged by fire during the lease as to render them untenantable, but did not damage the building to an extent that required rebuilding thereof.

The question raised by this appeal is : “ Did the fire terminate the lease so as to relieve defendant from payment of rent after the fire?”

Under the provision of the lease above set out it is admitted that no such benefit enured to defendant, but he relies upon chapter 345, Laws of 1860, for this relief.

That act provides that “ the lessee or occupants of any building which shall be * * * destroyed, or be so injured by the

elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant.”

Certainly unless the parties by their own written agreement took this case out of the protection of the statute, the defendant is entitled to the benefit it affords.

If we declare that they did so by virtue of their agreement above mentioned, we predicate our conclusion upon implication and inference merely, because clearly that agreement refers only to a partial destruction of the demised premises and the damage or destruction of the building to such an extent as to require rebuilding of the same: nothing is therein written concerning the total destruction of the whole of the demised premises so as to render the same untenantable.

It is only in instances where the parties have by written agreement otherwise expressly provided, that the lessee is deprived of the benefit of the 1860 statute, and we should not be overzealous in our efforts to spell out such an agreement from an uncertain and ambiguous covenant such as is here presented. Upon the contrary, we believe that the lessee should receive the shelter afforded by that act unless, by his own consent, he placed himself outside its shelter.

Can the statute of 1860 be incorporated in the agreement made between plaintiff and defendant without conflicting with, contradicting or in anywise interfering with its terms ? If so, then it appears clear to us that the parties did not intend to provide against that statute and that it, therefore, applies to this case.

The statute of 1860 is in effect incorporated into every lease unless otherwise expressly provided by written agreement or covenant. Butler v. Kidder, 87 N.Y., 103. This being so we must consider that the agreement of plaintiff and defendant contains the privileges or exceptions of said act, unless such inclusion would be repugnant to such agreement, which we can readily ascertain.

The agreement with the privileges of said act in, would read as follows:

“ And it is further agreed by and between the parties hereto that if without fault, neglect or improper conduct of the party of the second part, bis agents, servants or tenants, the premises hereby leased or the building shall be damaged by fire, the elements or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs. If the whole of the demised premises shall be so destroyed or be 'so injured as to be untenantable and unfit for occupancy, the party oj the second part shall not be liable or bound to pay rent to the lessor after such destruction or injury ; but if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered and the rent shall be paid up to such time.”

As amended, this agreement strikes us as being harmonious, consistent, unambiguous and entirely just and reasonable, carries out the spirit of the act of 1860 without interfering with the written agreement of the parties thereto, and which was not intended, we-think, to do away with said act.

For these reasons and finding no error in the appeal record, we think that the judgment should be affirmed, with costs. .

Newburger, J., concurs.

Ehrlich, Ch. J.

(dissenting) parties mutually executed a lease containing the following provisions :

“ It is further agreed by and between the parties hereto that if the premises hereby leased or the building shall be damaged by fire, the elements or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs ; but if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then, from th§ time of the happening of the said events, or either of them, this lease and the term- hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid to-such time.”

The act of 1860 provided that “The lessees or occupants of any building which shall * * * be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant.”

Pending the existence of the lease, the portion of the premises which plaintiff demised to defendant were so far damaged by fire as to render them unfit for occupancy during the making of repairs, but the damage was not so great in extent that, in the judgment of the lessor, the structure required to be rebuilt

The vital point of the controversy is whether the statute shall control, and thus relieve respondent from all liability for future rent, or whether the provisions of the lease shall be applicable and controlling.

The court of appeals has decided, Butler v. Kidder, 87 N. Y., 103, that in order to take away the statutory protection, the lease need not contain an express covenant to that precise effect, but its express provisions must clearly show that the parties had in mind the contingency which the statute mentions, and that they by mutual agreement made different provision therefor.

That is to say, the law being enacted for the benefit of the lessee, and no reason founded in public policy requiring its enforcement, he may waive its provisions at his pleasure, and he does waive them by joining in a lease of which the express covenants plainly show a mutual intention that they shall not be invoked or relied on.

The language of the lease, fairly construed, then becomes the law of the case, and governs the rights and fixes the obligations of the parties respectively.

It is manifest that the parties had clearly in mind the contingency mentioned in the statute, to wit; damage to the premises by fire or other elements, and in that event the express language of the lease makes provision as to the rights and obligations of the parties, which provision, we think, is inconsistent with the right of surrender that the respondent claims, and in the court below upheld.

The statute provides for a surrender at the option of the lessee; the lease itself provides for its abrogation upon the exercise of the judgment of the lessor as to the need or propriety of rebuilding the damaged structure.

The terms of the statute measure the extent of damage justifying a surrender by the fitness for occupancy of the demised premises ; by the terms of the lease its cancellation depends upon the judgment of the lessor or its election to rebuild the premises.

To us it seems clear that the parties meant to provide for every degree or extent of damage caused by fire or the elements.

In any conceivable case such damage either would be extensive enough to invoke the lessor’s judgment that the structure should be rebuilt, or it would not be sufficient to produce that result, although, for the time being, it might render wholly untenantable the demised premises.

On the other hand, the structure itself might require rebuilding, although the floors or portions thereof covered by the lease might be wholly uninjured or undisturbed. '

Respondent’s contention, however, appears to be that the precise language of the lease in controversy does not provide for a degree of damage rendering the whole of the demised premises untenantable and unfit for occupancy, and, therefore, the lease being silent, the terms of the statute become operative and its protection available.

But we think such construction of the language employed would be forced and unnatural.

The language “ pay rent only for such portion ” is fairly equivalent to “ shall not pay rent except for such portion; ” the same meaning might be expressed by the language “ shall pay rent for such portion, if any, of the leased premises as he can reasonably occupy.”

The negative expression “ only for such portion ” carries no implication that there must be some portion remaining in a tenantable condition ; the parties evidently contemplated not merely the unfitness for occupancy caused by fire, but such also as might be occasioned by the presence of workmen, materials, and tools and machinery employed in making repairs.

The language of the lease should be interpreted according to the same rules of construction as if no statute were in existence ; it being plain beyond controversy that the parties had in mind the contingency which the remedial statute provides for and have made express covenants concerning the same, the court has only to determine the meaning of the language employed and discover whether or not the parties meant that the statutory provisions should be applicable.

We are satisfied that the parties intended that any damage by the elements not sufficient to call for the rebuilding of the demised premises should cause no cancellation of the lease, but that reparable damage should justify only a suspension or diminution of the rent reserved until the premises might be properly repaired.

These views are not at variance with the opinion of the general term upon the former appeal; the question there being whether evidence tending to show an eviction should have been submitted to the jury.

Let the usual order for a new trial be entered, with costs to appellant to abide the event

Judgment affirmed, with costs.


author: Fitzsimons, J. Newburger, J.

text:
    Leo C. Jakobi et al., App’lts, v. John J. Gorman, Sheriff, Def’t.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Shebifes—Substitution of indemnitobs as defendants.
    The indemnitors of the sheriff may, in the discretion of the court, he substituted as defendants in his stead after the entry of judgment against him by default, where they move promptly on learning of the default. They being the principal debtors, are the proper parties to move to open the default.
    (Newbubgeb, J., dissents.)
    Appeal from order substituting indemnitors as parties defendant in place of the sheriff.

      Gruber & Landon, for app’lt; John E. Brodsky, for resp’ts.
   Fitzsimons, J.

This is an appeal from an order granted under §§ 1421-1423 of the Code of Civil Procedure, substituting as parties defendant the indemnitors in the place of the sheriff.

A judgment herein was entered against the sheriff, and the application of the indemnitors to be substituted as parties defendant was not made until after the entry of the judgment against the sheriff.

The affidavit upon which the order of substitution was granted shows that the sheriff failed to answer and that judgment was granted by default.

That the indemnitors did not know of such failure to answer or entry of judgment until the evening before the application for substitution was made.

The order made was a stringent one against the indemnitors. It required the giving of an undertaking for the payment of the judgment obtained ($993.95), in the sum of $1,500 with two sureties.

That the judgment obtained against the sheriff stand as security for the plaintiff’s claim and the payment of thirty dollars costs.

The appeal is based upon three points: First That the indemnitors were guilty of loches in making their motion for substitution.

In answer thereto we think the special term justice found otherwise and we should not disturb his finding.

We have examined the record and think he did right in declaring that the indemnitors were diligent in making their motion.

Second. That the motion could not be made after the entry of judgment against the sheriff; we find nothing in the sections under which the motion was made which limits the time of the making of the same.

We think that in each case the facts, circumstances and equities are so varying, that the sound discretion of the justice before whom such a motion is made must control the granting or denial of such an order.

Third. That the proper party to move to open the default is the present defendant, the sheriff. The real judgment debtors herein are the indemnitors; they are required by their bond to the sheriff to pay any judgment obtained against him in this action ; therefore, they are really the principals.

We do not deem any elaboration of this statement necessary in view of the decision in Dyett v. Hyman, 129 N. Y., 351; 41 St Rep., 644, in which Ruger, Ch. J., says:

“ The execution of a bond to the sheriff indemnifying him against damages resulting from an unlawful levy and sale of property made by him presumptively establishes the liability of the obligors as principals for the original trespass committed by the sheriff. Thus, those connected with the original wrong are jointly and severally liable with the sheriff.

“ The provisions of the Code, §§ 1421-1423, giving the indemnitors the right to be substituted in such an action as defendants, in place of the sheriff, do not have the effect to limit the liability of the indemnitors to the amount they would be liable in an action by the sheriff upon their bond, and in no way affect or vary the rights of the injured party.”

Thus it will be seen that the court of appeals declared the indemnitors to be principals, and they are, as before stated, really the judgment debtors herein.

We, therefore, think that, as a matter of law and equity, that it was only doing justice to them to permit them to appear and answer herein, as the matter of the vacation of judgments rests in the sound discretion of the justice granting the same.

We think we should not interfere in this instance, for, upon considering all the circumstances, and after reading the proposed answer of the indemnitors, we find that justice was done.

The order must be affirmed, with cost's.

Ehrlich, Ch. J., concurs.

Newburger, J.

(dissenting).—This is an appeal from an order substituting indemnitors as parties defendant in the place of the sheriff.

It appears that judgment had been entered herein, in favor of the plaintiff, and against the defendant before the order of substitution was made.

As the statute under which this proceeding is instituted is clearly in derogation of the common law and common right, it-must be strictly construed. Hayes v. Davidson. 98 N. Y., 19.

The plaintiff having prosecuted his action to judgment, the indemnitors cannot be substituted while such judgment is in force.

The order appealed from must be reversed, and the motion to substitute indemnitors denied with costs.

Order affirmed, with costs.


author: Fitzsimons, J.

text:
    Charles F. Rosenkranz, Jr., Resp’t, v. William Haas, App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    1. False impbisonment—Pleading.
    Where false imprisonment is clearly the gravamen of the action, the mere fact that the complaint also states that the defendant acted maliciously will not change it to one for malicious prosecution.
    2. Same—Pbobable cause.
    The discharge hy the police justice of the plaintiff is prima facie evidence of want of probable cause sufficient to throw on defendant the burden of proving the contrary.
    3. Malicious feosecution—Malice.
    In an action for malicious prosecution the fact that the defendant wilfully and knowingly preferred a false charge against the plaintiff, and acted in a wanton and reckless manner in the proceeding, is sufficient to establish a want of probable cause from which malice wm be inferred.
    Appeal from judgment in favor of plaintiff entered upon verdict

      Edward J. McGanney, for app’lt; Charles Sleckler, for resp’t.
   Fitzsimons, J.

Although the counsel for both appellant and respondent characterize this as an action for malicious prosecution, a perusal of the pleadings convinces me that it is an action for false imprisonment The complaint states that the plaintiff was arrested without warrant by a police officer upon the complaint oí defendant.

The fact that it also states that he did so “ maliciously ” does not change this action from false imprisonment to malicious prosecution; false imprisonment is clearly the gravamen of the action.

Upon this appeal the appellant relies mainly upon the proposition that plaintiff failed to show malice and want of probable cause upon defendant’s behalf in causing plaintiff’s arrest.

The plaintiff at most was required to prove that in causing his arrest the defendant acted without probable cause. His testimony shows that he was walking peacefully along Twenty-sixth street, a public highway, and was arrested by a police officer, who acted at defendant’s instigation, and was compelled to go along with the officer to the station house, where defendant made a complaint to the officer in charge, was locked up in a cell all night (eleven hours), next morning was again compelled to accompany the officer through the public street to the police court, where defendant charged him in a written complaint made before the police justice with using threatening, abusive and insulting behavior with intent to provoke a breach of the peace.

That such offense occurred in Twenty-fourth street, in this city, and there followed defendant, causing a crowd to collect. The plaintiff was discharged by the police justice.

In view of plaintiff’s testimony upon the trial and the criminal proceedings and their termination, as above related, the trial justice did right in submitting the question, “ whether or not the defendant in such proceedings acted without probable cause,” to the jury, their negative finding is based upon very strong evidence, and is conclusive.

The discharge alone by the police justice of the plaintiff is ¡grima facie evidence of the want of probable cause sufficient to throw upon defendant the burden of proving the contrary.

Conceding that this is an action for malicious prosecution, and that plaintiff was, therefore, required to prove malice, we find ample justification in the evidence for the refusal of the trial justice to dismiss the complaint upon defendant’s motion to dismiss upon the ground that malice was not proved.

The testimony submitted by plaintiff, and the proceedings taken upon the criminal charge, show that defendant acted therein in a wanton and reckless manner and wilfully and knowingly preferred a false charge against plaintiff. These circumstances alone establish that want of probable cause from which, malice will be inferred, Dorendinger v. Tschechtelin, 12 Daly, 34; Wheeler v. Nesbitt, 24 How. (U. S.), 544, and entitled a submission thereof to the jury. They determined that defendant acted with malice, and the testimony justifies that finding.

We find no errors. The judgment must be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.