text:
    Thomas Zboynski, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Pleadings—Amendment—Complaint.
    An amendment, which, substitutes another cause of action for the one pleaded, is not allowable upon the trial.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order .denying a .motion for a new trial.

      Morris & Whitehouse, for app’lt; Bailey, Bell & Crnne, for resp’t.
   Yan Wyck, J.

The plaintiff alleged -in the complaint that while defendant’s car was at a standstill, and he was in the act of entering the same by way of the front platform, the driver thereof “ negligently and carelessly, and without giving the plaintiff any warning or notice, started said car suddenly and violently throwing plaintiff from said car against the wall of the car-house,” and injured him. There was a total failure to prove this allegation. The plaintiff himself, when called to tell how the accident occurred, testified that, while he was on the first step of the front platform, in the .act of getting on the caí1, which was standing still, the driver thereof pushed him in his breast with his hand off the car against the wall. This testimony'was admissible as apart of the transaction resulting in the accident complained of,,and also for the purpose of negativing the cause of action alleged. The cause of action alleged was one for negligence of the driver. The one proved was for an assault upon a passenger by the driver. This point was raised by defendant’s request to charge that unless the plaintiff was thrown from the car .by reason of its being started suddenly, as alleged in the complaint, he cannot recover. This request was refused, and defendant excepted. After the jury had retired, the court allowed the complaint to be amended by setting up the cause of action for the assault.

The question for-our consideration is not whether such amendment can be made at special term on notice, but whether it can be made at the trial of the case. There was a total failure in its entire scope to prove the cause of action alleged. Code Civ. Proc. § 531. The court, upon the trial, is not authorized to allow an amendment which substantially changes the claim or defense (Id. § 723); and the amendment was not only a substantial change of the claim, but was the substitution of another cause of action for the one pleaded, and that is forbidden by the law, at the trial, notwithstanding the broad discretion confined to courts in the matter of liberal amendments. Hall v. U. S. Reflector Co., 30 Hun, 375; Cumber v. Schoenfeldt, 34 St. Rep. 770; 12 N. Y. Supp. 282; Reeder v. Sayre, 70 N. Y. 181; Southwick v. First Nat. Bank, 84 id. 420; Price v. Brown, 98 id. 388; Dexter v. Ivins, 133 id. 551; 44 St. Rep. 244.

Judgment and order must be reversed, and new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Clement, Ch. J.

license: Public Domain

text:
    Adolph Sussman, Resp’t, v. John L. Mason, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 22, 1894.)

    Pleadings—Complaint—Tender.
    An averment of the amount due in the complaint, alleging a tender in an action to recover a certificate of stock pledged as collateral, was held to refer to the date of the verification of the complaint, and not to the time of the tender.
    Appeal from an interlocutory judgment entered on an order overruling a demurrer to the complaint.

      W. C. Havens, for app’lt; S. S. Hemingway, for resp’t.
   Clement, Ch. J.

The summons in this action is dated January 31, 1894, and the complaint was verified on the same day. The plaintiff claims in his complaint that between May 23 and June 26, 1892, the defendant loaned him the sum of $2,000, to be repaid with legal interest, and that as security for said loan he (plaintiff) deposited with defendant a certificate for twenty-nine shares of stock of the Keystone Savings & Investment Association, which certificate and certain promissory notes made by plaintiff to 'defendant were to be returned upon payment of the said sum of $2,000 and interest; that there is due the defendant on account of said loan not more than $1,050, which sum plaintiff tendered defendant on the 27th day of December, 1893, and demanded a return of said certificate and notes. The plaintiff demands judgment for the return of the certificate and notes, and for such other relief as may be j ust. The action is based on the theory of a tender of the amount due, and a refusal to deliver the ’'collaterals. It is not clear that the statement in the complaint “that there is due the defendant on account of said loan not more than one thousand and fifty dollars ” is an allegation of a fact. It would appear to be a conclusion of law. In view of another point, it is not necessary to decide the question. There is nothing in the complaint to show how much was due at the date of the tender, December 27,1893. The allegation “ that there is due the defendant on account of said loan not more than one thousand and fifty dollars ” refers tcjj the date of the verification of the complaint, January 31, 1894. We are therefore of opinion that the complaint did not state at cause of action, and that the interlocutory judgment on demiyrrer should be reversed, with costs of. appeal and at special term, rWith leave to plaintiff to serve an amended complaint on payment <pf such costs.


author: Bradley, J.

text:
    Hyman Bloom, Resp’t, v. National United Benefit Savings and Loan Company et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Appear—¿-What not brought up.
    An o .rder reopening the cause and directing, as a condition, that it be sent tof a referee to hear and determine, is not reviewable on appeal from the judfgment.

      2. Same—CObjections—Waiver.
    An objection, taken before the referee, that the court had no power to order tike reference is not available on appeal from- final judgment, where the parry took part in the trial on the merits.
    3. Corporations—Stockholders—Action by.
    A stockholder may sue for the benefit of the corporation, where it refuses or is -controlled by the directors charged with liability.
    4. Same—Directors.
    The directors-! of a corporation are liable only for the losses of its funds, attributable to th oir negligence.
    Appeal from a judgment in favor of plaintiff.

      John H. Hopkins, -for app’lts; J. B. M. Stevens, for resp’t.
   Bradley, J.

The defendants other than the company were directors of the National! United Benefit Savings & Loan Company. The action is brought ipgainst them to recover ifamagiss resulting from their alleged negligent mismanagemenf-óf the affaihs*.of the company. The trial proceeded at special term, and the evidemne was there deemed clo&wA. ,\But upon motion made by the plaintiff, and opposed by the defendía r\L, an order was made by the court that the plaintiff be permitted to introduce further evidence for certain purposes, and that, as a condition of reopening the proofs, the cause be sent to a referee to hear the additional evidence, and upon it and the stenographer’s minutes of the evidence takeii on the trial at the special term he determined all the issues in the action, and it was referred to a referee named to hear and determine them. When it came on to hearing before the referee the defendants’ counsel objected that he had no right to proceed with the trial under the order, because the court had no power to make it. The objection was overruled, exception taken, and the trial proceeded.

It was not within the power of the court to make the order of reference, and submit to the referee the evidence before taken, without the consent of the parties, and the error was reviewable by appeal from the order. No appeal from it was taken by the defendants within the time prescribed by the statute for that purpose, but they took part in the trial before the \referee. The defendants seek to review the order on appeal froHji the final judgment pursuant to the statute, which provides that ^n appeal from a final judgment brings up for review “an intermediate order which is specified in the notice of appeal, and nec-éssarily affects the final judgment.” Code Civ. Proc., § 1316. The -prder did not necessarily affect the final judgment, and therefore dejes not come within the provisions of that section. And since the] parties participated in the trial upon the merits to the result glfiven by the judgment, the objection taken by the defendants at th& outset before the referee is not available to them on this review.! The failure to appeal from the order and proceeding to the tifial may be treated as a relinquishment of the right to now assert objection to the reference. The defendant company was a corpora ti¿\n created pursuant to “ An aet for the incorporation of building, mutual loan and accumulating fund associations.” Laws 1851, tchap. 122. It was organized August 14, 1890. The articles of association Were subscribed by the defendants and by E. I. Nagefstein, W. R. Horne, and Charles Pscherhofer. Thereupon TTracy was elected president, Nagelstein vice president, Pscherhofrér treasurer, and Horne secretary. The business existence of the rcompany was short. On October 15, 1890, the directors, other tluan the three last above named and Makk, joined in a petition n,o the court for its voluntary dissolution, in which petition it wa¡u represented that in the meantime 1,320 shares had been subscribed to the capital stock, upon which $2,327.25 had been paid, an d that there was no money in the treasury to make the loans contemplated by the payment of the money upon such shares. TAe losses suffered by the corporation was occasioned by the malfeasance in office of the vice president, secretary, and treasurer.

There is *o support in the evidence for ¡jiny charge of bad faith or affjrsnative bread1;, of trust on the part of \the defendants. The uhiurge made against teem is that of neghge’hce. The funds were those of the corporation certain legitimate purposes. The legal privity of the directors is with the corporation only. They are its managing officers, and are primarily liable to it for losses occasioned by their negligence, for which it has a remedy by action at law. Hun v. Cary, 82 N. Y. 65. But when a corporation refuses to sue for such cause, or when it is controlled by directors who are charged with liability, and therefore may be supposed not to permit a faithful prosecution of themselves, a shareholder may bring an action in equity for the requisite relief. Robinson v. Smith, 3 Paige, 222; Greaves v. Gouge, 69 N. Y. 154. This right arises out of the interest the stockholders have in the preservation of the corporate property and the trust relation of the directors to them. The corporation must necessarily be made a party defendant, and the practical purpose of the action is the restoration for the benefit of all concerned of ■ the corporate funds or property wasted or lost by the culpable fault of the directors. Davenport v. Dows, 18 Wall. 626; Craig v. Gregg, 83 Pa. St. 19; Brinckerhoff v. Bostivick, 99 N. Y. 185, 194. The substantial interests are in the stockholders, and in the present case it seems that the corporation has for all pra.-etical purposes ceased to have any potential existence. The directors undertook to exercise ordinary care in the management of the affairs of the company, and, as was said in Hun v. Cary, “ the same degree of care and prudence that men prompted by self-interest gehc rally exercise in their own affairs.” .The burden is with the plaintiff, to prove that the appropriation of the moneys of the corporation 'oy the guilty officers was permitted by the negligence of the defendants. It now appears that they were not worthy of any trust, a. id the charge is made of want of diligence on the part of the defendants in not learning that they were unfit for the offices before their election to them. The defendants then evidently had confidence in their ability and integrity. One of the defendants ’• had known Pseherhofer for four years, and spoke highly of him to one or more of the other defendants, who had known him much less time. He assumed to be familiar with the contemplated corporate business, and Nagelstein and Horne cooperated with him in organizing the company. They assumed a knowledge of the business not possessed by the other directors. They were therefore placed in those official positions. The secretary and treasurer were respectively required to give bonds, with surety to 'be approved by the president. It was done. This apparently was reasonably sufficient to render their relation to the offices satisfactory. They alone were authorized to receive the money. I.t .was not within the duties of the vice-president to handle any-, of the money of the corporation. The defendants cannot well be charged with negligence in the outset.

The Unió# Bank of Rochester was designated as the place for deposit of tlr.e corporate funds. The by-laws provided that checks drawn upon%the loan fund should be signed by the president, secretary and treasurer, and those drawn on the expense fond be signed by the* secretary and treasurer; and it appears that' some of the officers qf the bank were so advised. A few days prior to August 27, 1890, one Grroh made application for forty shares of stock of the par; value of $100 each, and he assigned to Nagelstein and Horne a mortgage against one'Kraft, which exceeded in value that of the stock Üqy something over $300, which was paid to him. On that day the mortgage was transferred to the bank to secure the payment of a noiemade to obtain a lo.Tnof the sum of $3,0.00, of which $2,500 wass there credited to the loan fund and $500 to the expense fund of the corporation. T] is loan wa£4n excess of that which the company was authoriz d to make. £^aws 1851, chap. 122, § 5. Afterwards Grroh asserted that the assignment of the mortgage was obtained from him >y fraud, and sough6 60 reclaim it, and his attorney upon such ,harge obtained restc^8460n of it to his client, and Me amajagymk to him at the time of thA assignment was refunde®, xnu'Ttoeapbn Pseherhofer and four other ^ directors, who are the defendants other than Makk, gave their individual notes to the bank in place of that before mentioned, and those four defendants paid the amount of it,-aided in doing so by the proceeds, amounting to about $1,600, of a mortgage taken on the loan of a portion of that $3,000. It is not seen that the imputation of negligence of the defendants resulting in the loss of any of the money of the corporation arises out of the transaction of the loan from the bank. The amount of it was all paid without the use of any of the funds of the company other than the portion before mentioned of the amount of such loan. It is, however, urged that the amount of the KrCft mortgage should not have been surrendered to Grroh. No jertificate of stock had been issued to him. He made the charge hi fraud, and it seems that it was deemed advisable to avoid a c intest in the matter by giving it back to him. The circumstances 'of the fraud charged do not appear in the record. It must be assumed that the' directors acted in good faith in returning it to him, and, if there was any mistake made in doing so, it was mere error of judgment, for which they are not chargeable with liability.

The unfaithfulness and dishonesty of Nagelstein, P^cherhofer and Horne in their relation to the company appear, and the defendants are charged with culpable negligence by permitting them to remain in the positions to which they had been elected as officers and assigned as members of the executive committee. If the defendants were advised of the misconduct of those pensons, and unduly permitted them to remain in those places without- any action for their removal, they subjected themselves to the imputation of negligence, and became liable for the consequences of their subsequent peculations to the prejudice of the company.

About the 1st of September the attention of the directors was called to the fact that Nagelstein had received $600, a,nd the matter was called up, and, as appears by the minutes of a meeting of the directors, he then said such amount had gone into his pocket as commissions for obtaining shares for another company which were transferred to this company, and the matter was ij,hen dropped for the time being, to be thereafter examined. Theu’e seems to be no further account of that money, nor does it appear how or from whom he received it. Afterwards he was require^! to, and finally did, resign his position as an officer of the company. It does not appear that he subsequently received any other money. On September 18th, at a meeting of the directors, ome of them called attention to the facf-fhat the secretary, Horne„ was inattentive to his official duties, and it also appeared that inis habits were bad. He was soon aft^r disifiissed from his office. * It seems that Pscherhofer, the' treasurer, retained longer the cortifidence of the directors, and h^.joined withAhem in demanding ‘.the resignation of the vice-president and in reii. oval of the secretary-. He, as treasurer, was called upon to subnet his book for er-xamination, and after some qelay it was produc/d. It was found/ to be incorrect. He sai¿i$ e would look it ov-t and submit ilt at the next meeting. A£hen k‘ wag found that sohe l?¿fjp¿ad b/feen torn out, and a new account entered. This was’T^ANiV/incorrect, and charge was made against him to that effect. He became excited, and tore the book to pieces. This was near the time that the company ceased to do business. There is evidence tending to prove that the secretary and treasurer were requested from time to time to render their accounts. They stated that it was necessary to have a certain kind of books adapted to the purpose, and that they had been ordered from the city of New York. This seemed to be a method of pretext employed for delay. It is quite evident that the defendants were the victims of misplaced confidence. They possibly may have been less vigilant than they would have been if the bonds of the secretary and treasurer had not been given, and they may have deemed the loan fund in the bank comparatively safe from the fact that the by-laws did not permit it to be drawn without the check of thráS officers, of whom the president (Tracy) was one. This requirement was not observed in drawing upwards of $600 of that fund. The condition of insolvency of the company was reaches in less than two months after its organization. Some money was required and used for expenses and in the payment of officers’ salaries. The amount paid upon subscriptions to shares in excess of those expenses and salaries -was illegally appropriated by the three officers before mentioned, or some of them. It appears that the moneys deposited in the bank before then were drawn prior to September 13, 1890. A considerable portion of the moneys paid in by subscribers to shares did not go into the bank. Although the by-laws required that certificates of stock should be signed by the president, he signed none. It seems that the subscriptions were not reported to him, and that he was not advised that the certificates had been issued until shortly before the company ceased to do business. After the defendant Sheridan took the position of secretary, and before the condition of the company was fully ascertained, he and two other directors each contributed $100 to his credit in the bank to place the company in a situation to take care of its matters. But as it turned out on further investigátion, the sum so contributed was only little aid towards relief.

The only support found in the evidence for the charge of culpable negligence on the part of the defendants is in their omission to get rid of those officers respectively without delay after their unfitness was or should have been ascertained or suspected by them. The question as to the amount of money of the corporation lost for such cause after that time is not answered by the findings of the referee, nor does it appear by the evidence that the defendants were, upon such charge, liable to the original plaintiff, and those who came in as such, for the amount awarded to them upon the direction given by the interlocutory judgment. The defendants are neither insurers nor sureties for the fidelity of the officers of the company. They are liable only for the losses of its funds attributable to their negligence. Briggs v. Spaulding, 141 U. S. 132; Arthur v. Griswold, 55 N. Y. 400. There was a period in the short time within which the mischief was done that the defendants were not required to suspect those persons of peculating purposes, and the treasurer retained their confidence longer than the other two.

The learned referee fouiid many facts, and then added substantially that by reason of those facts the shares of the company were rendered worthless, and by reason thereof and of the debts and liabilities negligently incurred by the directors the plaintiff has sustained damages to the amount paid in by him, with interest, and the propoi’tion for which he may be personally liable of the debts and liabilities so incurred, and that the other shareholders of the company similarly situated have respectively sustained like damages, and j udgment was directed accordingly. Six others came in and took the benefit of the direction, and with the plaintiff, also recovered. The specific facts found did not necessarily require the direction of the judgment recovered against the defendants, nor was the recovery had warranted by the evidence. The reason urged by the plaintiff’s feunsel for the suggestion that the determination is not reviewable is deemed not well founded. Code Civ. Proc. §§ 1301, 1316. The final and interlocutory judgments should be reversed, and a new trial granted, costs to abide the final award of costs. All concur.


text:
    Fredericka Pantheon, Resp’t, v. Elizabeth Meier, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. New trial—Case.
    A motion for a new trial, under § 997 of Code, on the ground of newly discovered evidence, can be made only on a case.
    8. Same—Renewal.
    Whether such motion can be renewed after the reversal of an order granting it, is a question for the trial court.
    3, Appeal—Objection—Waiver.
    A preliminary objection, on a motion for a new trial, that no case was settled, is not waived by contesting the motion on its merits.
    ■ Appeal from an order granting a motion for a new trial, on the ground of newly discovered evidence.

      H. G. Pierce, for app’lt; J. P. Varnum, for resp’t.
   Bradley, J.

The motion was heard by the county court, and upon the decision judgment was entered dismissing the complaint, with costs against the plaintiff. Afterwards the plaintiff, upon affidavits, depositions taken pursuant to order of the court before a referee, the judgment roll, and proceedings in the action, moved for a new trial, upon the ground of newly discovered evidence ; and the motion was granted. When the motion came to a hearing, the defendant made preliminarily the objection to its being heard that no case, had been served. The objection was overruled, and exception taken. As the motion for the new trial was not within those mentioned in § 999 of the Code of Civil Procedure, the questions of fact presented on the hearing are not here for consideration (Id. §1340); and the power of the county court in that respect -is discretionary, and its exercise not reviewable upon this appeal. Tucker v. Pfau, 70 Hun, 59; 53 St. Rep. 553. The question is whether the court erred in entertaining and determining the motion on the merits without a case. The statute provides that, where a party intends to move fora new trial of an issue of fact, !‘hemust, except otherwise provided by law, make a case”and procure the same to be settled.” _ Code Civ. Proc. § 997. Our attention is called to no law which relieves a motion like the one in question from the operation of that rule. It was so held by this court in Russell v. Randall, 30 St. Rep. 452; 9 N. Y. Supp. 327. The statute, in its application to such a motion, is declaratory of the practice as it before then existed, Anon., 7 Wend. 331; Warner v. Western Transportation Co., 5 Rob. [N. Y.] 499; and the statute is founded upon a substantial reason, having relation to tbe consideration of such motions on the merits. In reviewing the decision of the court in Russell v. Randall, 123 N. Y. 436; 34 St. Rep. 110, the court of appeals, recognizing the rule to be as above stated, held that by the omission to raise the question on the hearing of the motion the objection was waived, and not available on review. The objection was distinctly and in due time taken in the present case, and it was not obviated or waived by the fact that the defendant contested the motion on the merits, without further objection taken in the later stage of the hearing of it. In Michel v. Colegrove, 46 St. Rep. 899; 19 N Y. Supp. 716, the motion upon the like ground was denied, with leave to renew. Whether the plaintiff ipay have such opportunity is a question for consideration in the county court only. The order should be reversed, without prejudice, etc.

All concur.


author: Lewis, J.—This

text:
    James Danihee, App’lt, v. John Hyatt, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Ejectment—When not lie.
    Ejectment will not lie against a husband for land owned by his wife, on which they reside together.
    Appeal from a judgment dismissing the complaint.

      William H. Henderson, for app’lt; Inman & Cole, for resp’t.
   Lewis, J.—This

is an action of ejectment brought to recover a ■small triangular piece of land in the village of Salamanca. It has been twice tried before a referee, and resulted each time in a judgment dismissing the plaintiff’s complaint.

The plaintiff and the wife of the defendant are owners and occupants of adjoining village lots, obtaining their title from a common grantor, each claiming to own the premises in dispute. The wife of the defendant, when she became the owner of her premises, took possession of the piece in dispute, graded and prepared the same as a driveway to a barn upon her lot, and continued to occupy the same as a part of her premises down to the time of the commencement of this action. The plaintiff, after •obtaining title to his lot, caused a survey thereof to be made, which, as he claimed, showed that the premises in dispute were a part of his lot; and he thereupon caused to be erected upon the line between his and Mrs. Hyatt’s lot, as run by the surveyor, a fence, which the defendant at once removed. The plaintiff again attempted to take possession of the premises, by placing firewood thereon, which the defendant at once removed. The defendant and his wife placed a wagon upon the land in dispute, and fastened it to a post by means of a chain and this action was thereupon commenced.

We held upon the first appeal (68 Hun, 255; 52 St. Rep. 188) that the evidence, as then presented, established that the defendant had assumed to exercise such dominion over the premises to the exclusion of the rights of the plaintiff, and had taken actual and ostensible possession of the land, which he had maintained down to the time of the commencement of the action, all of which he had apparently done upon his own responsibility, and that, under the facts as they then appeared, it was error to dismiss the plaintiff’s complaint without a finding and decision adverse to him on the issue of title made by the pleadings. The action went back for trial before another referee. He found the title to the land in dispute to be in the plaintiff, but directed judgment dismissing the plaintiff’s complaint on the ground that the plaintiff had failed to show the defendant in possession of the land or that he had claimed any title or interest therein, and from the judgment entered upon the report this appeal was taken.

The evidence, as presented upon this appeal, is materially different from that upon the first appeal. There is now evidence tending to show, and the referee has found, that Houora “Hyatt, the wife of the defendant, became the owner of her leasehold premises in the year 1882, and that she entered into possession thereof, and has ever*since actually occupied the same, including the piece in dispute; that neither the plaintiff nor his immediate assignor was ever in the actual possession of the disputed land, or any part thereof; that the plaintiff knew when he commenced his action that Honora Hyatt was the actual occupant of the. land in dispute, claiming to be the' sole and exclusive owner thereof; and that all that the defendant did in removing the fence and the wood, and in attempting to hold possession of the premises, was done by him at the request and under the direction of and for his wife, and not on his own account. The defendant was called as a witness and testified : . “ I told him [the plaintiff] the woman was not going to let him get possession that way, and that I had torn the fence down. I went out, and told him the woman did not want any post holes dug there, and would not have any. My wife was in the house, but came to the door, and she saw what was going on. My wife told me to go out there, and tell the plaintiff not to put any wood there, and if he did to throw it off. I went out there. My wife went out of the front door, near where they were. I told the plaintiff the woman did not want any wood there, and she told him the same thing. As they threw the wood off the wagon, I threw it off the driveway. I had never at any time claimed to occupy this land, or claimed any interest in it. Whatever I did was only when and directed by my wife. My wife and I chained the wagon between the posts. I supposed this was done to keep possession. That was the idea.”

Defendant’s wife testified that she informed the plaintiff that she claimed the land in dispute; that it was her land; that she owned it, and not her husband, and whatever her husband did to maintain the possession of the land was done by her direction. The defendant was living with his wife. She was in possession of the disputed premises, claiming that the same were included within the boundaries of her lot. Possession, under the circumstances, in a legal sense, was that of the wife, and not of the defendant Kavanagh v. Barber, 131 N. Y. 211-213; 43 St. Rep, 283. Where a husband and wife both live on the premises which have been conveyed to the wife, who paid the consideration out of her own money, the wife is the actual occupant and the proper party defendant. The bare fact of their residing together in the dwelling does not make the husband either sole or joint occupant. Porter v. McGrath, 41 N. Y. Supr. Ct. 84-101; Martin v. Rector, 101 N. Y. 77. When the premises are actually occupied, the action for ejectment must be brought against the occupant. Code Civ. Proc. § 1502; Banyer v. Empie, 5 Hill, 48. In Rowe v. Smith, 45 N. Y. 230, the wife and her husband resided together upon the wife’s land. The action was against the wife for a trespass by her cattle, which were used in connection with the real estate for the support of the family. It was held the action was properly against her alone, notwithstanding her husband and children resided with her upon the land. In Stewart v. Patrick, 68 N. Y. 450, the defendant and his wife were joint tenants. It was held that the action would have been defective without the wife as a party. Lucas v. Johnson, 8 Barb. 244-248, was an action of ejectment brought against the defendants as trustees of a church. It was held that the church was occupied by the corporation, and that the suit should have been brought against it, and not against the trustees. It appearing that the defendant was not in the occupation of the premises in dispute, and did not claim to be the owner, or the person entitled to possession thereof, the referee correctly held that an action of ejectment could not be maintained against him.

It follows that the judgment appealed from should be affirmed.

Dwight, P. J., and Haight and Bradley, JJ., concur.


author:
Lewis, J.
      St. Rep., Yol. LXII. 84

text:
    Dewitt C. Le Fevre, Resp’t, v. Charles W. Phillips, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Creditor’s suit—Exhaustion oe legal remedies.
    A creditor’s suit is maintainable without exhausting the usual legal remedies, where no execution against the judgment debtor can be issued and returned unsatisfied.
    Appeal from an interlocutory judgment, entered on an order overruling a demurrer to the complaint.

      James II. Waring, for app’lt; Charles S. Cary, for resp’t.
   Lewis, J.

It is alleged in the complaint that the plaintiff recovered a judgment against one John F. Good and another for $2,642.50 on the 10th day of May, 1886. That the judgment roll in said action was duly filed in the clerk’s office of the county of Cattaraugus on said day. That it still remains unpaid and unsatisfied in full. That the county clerk of the county, in docketing said judgment, omitted to index the same against said defendant John F. Good; and that, by reason of such omission, said judgment did not appear on said docket on what is called the “Good Combination,” and therefore the judgment did not become a lien upon the real property of the defendant Good. In the year 1891 the said Good died, intestate, leaving no personal property of any description. That, at the time of the recovery of said judgment, he was the owner of valuable real estate in the county of Cattaraugus, of the value of several thousand dollars. After the recovery of said judgment, and on the 1st day of December, 1890, Good executed and delivered to the defendant, Charles W. Phillips, a certain instrument, in writing, purporting to convey to said Phillips, in consideration of the sum of $300, said real estate. Said deed was duly recorded in the proper clerk’s office. That said deed was delivered to said Phillips for the purpose of securing the repayment to him of said sum of $300, with interest, on an agreement on the part of said Phillips with Good that, on the repayment of said sum, he would reconvey the lands to Good. That Phillips did not purchase and become the grantee-of said lands for a valuable consideration and without notice of plaintiff’s judgment, but, on the contrary, up to the time of the death of said Good, he held said instrument of conveyance, and only assumed to hold the same as security for the paj'ment of said money, and as, in effect, a mortgage thereon. That, after the death of said Good, Phillips, for the first time, conceived the fraudulent purpose and design of assuming to hold under said conveyance the absolute title to said lands, as the Iona fide purchaser thereof, free and discharged from said judgment. That said Phillips knew of the existence of plaintiff’s judgment, and that his claim, as aforesaid, since the death of Good, is made with the fraudulent intent on his part to hinder, delay and defraud the creditors of Good, and particularly the plaintiff. That said instrument of conveyance, in connection with the record of said judgment, is a cloud upon the title of said lands, and an obstruction to the collection of the judgment. That, at the time of said transaction, said Good was indebted to divers persons in large sums of money, and was unable to pay his debts, as said' Phillips well knew. And that said defendant claims that the plaintiff’s judgment is not, and ought not to be a lien upon the premises, by reason of the omission of the clerk to index the same as against said Good, and claims that he is a Iona fide purchaser thereof, when in truth and in fact he is not such, and has not in any manner been prejudiced by reason of the omission of the clerk to properly index the jndgmcnt. Judgment was demanded against the defendant that plaintiff’s judgment be adjudged to be a lien upon the land described superior to all the liens, rights, titles and equities of the defendant; and that the clerk’s docket be amended nunc pro tunc by indexing and docketing the same against said Good; and that the conveyance to the said defendant be set aside, or adjudged to be subordinate and subject to the lien of plaintiff’s said judgment; and that the land be sold, and the proceeds of the sale applied to the payment of plaintiff’s judgment, and the surplus, if any, deposited with the treasurer of the county of Cattaraugus, to the credit of the action ; and that the plaintiff have judgment for such other or further relief as the court shall deem just. The defendant demurred to the complaint on the grounds : (1) There is a defect of parties defendant, in that the clerk of the court should have been made a party defendant; and (2) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled.

St. Rep., Yol. LXII. 84

The only question presented by this appeal which merits examination is whether the issuing and return of an execution unsatisfied in whole or in part against the judgment debtor, Good, was an indispenssble prerequisite to the right to maintain the action. By the omission of the clerk to properly index the judgment as against Good, it did not become a lien upon the defendant’s real estate. Code Civ. Proc., § 1246. The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. Id., § 1379. It is provided by | 1380 of the Code that after the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the j udgment may be enforced by execution against any property upon which it is a lieu, with like effect as if the judgment debtor was living; but such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate’s court which has duly granted letters testamentary, etc. This judgment is not within the provisions of this section, for, as stated, it never became a lien upon the judgment debtor’s property. It is a general rule that, in actions brought by creditors to set aside conveyances of a judgment debtor for fraud, an execution must be issued, and returned unsatisfied in whole or in part, before an action can be maintained. It may be observed that in this action it is claimed that the conveyance was made with intent to defraud the creditors of the judgment debtor. The good faith of Good in giving the deed, and the motives of the appellant in receiving it, are not in any respect assailed or questioned. Neither of them, so far as appears from the complaint, was aware of the omission of the clerk to properly index the judgment at against Good. Good, not knowing at the time of executing the conveyance to Phillips that the judgment was not properly indexed as against him, could not have had any fraudulent intent in giving the deed as against the plaintiff’s judgment. No fraud is charged against the appellant during the lifetime of Good. It is alleged that he first conceived the idea of claiming the instrument was a conveyance of the fee of the land after Good’s death. Therein consisted the fraud which is charged against him in the complaint. While it is stated generally in the complaint that Phillips knew of plaintiff’s judgment, it is not alleged that he knew of it at the time of receiving the deed; so that the only relief probably which the plaintiff could, have would be to have the deed declared a mortgage security only for the indebtedness of $300. "Whether this action comes within the provisions of § 1871 of the Code, which provides that, where an execution against the property of a judgment debtor issued out of a court of record has been returned wholly or partially unsatisfied, he may maintain an action against the judgment debtor and any other person to compel the discovery of any thing in action or other property, belonging to the judgment debtor, may not be free from doubt. But, if it be assumed that it does, is not this an exception to the rule that, to maintain such an action, an execution must be first issued, and returned unsatisfied? The judgment debtor having died after the entry of judgment, a general execution against his property could not be issued. Code Civ. Proa, § 1379. Had this judgment been a lien upon the defendant’s property, an execution might have been issued after obtaining an order from the court granting the judgment; and a decree of the proper surrogate’s court consenting thereto. The plaintiff could not obtain such relief, because of the fact that his judgment was not a lien upon the property of the judgment debtor.

It was held in Re Holmes, 16 N. Y. Supp. 51, and 131 N. Y. 80; 42 St. Rep. 64, where it was alleged that the judgment debtor had transferred his property in fraud of his creditors before the recovery of the judgment, that the court might assume, for the purpose of deciding a motion for leave to issue execution, that the claim of fraudulent transfer was well founded, and grant the motion, notwithstanding the judgment was not in fact alien on property. But no such assumption should bo indulged in here ; for, concededly, the judgment was not, and could not be, a lien upon the debtor’s property. It was held in Nat. Tradesmen's Bank v. Wetmore, 124 N. Y. 241; 35 St. Rep. 316, that the rule requiring the issuing and return of an execution as a condition precedent for the maintaining of a creditor’s action was not of universal application. The opinion of the court, prepared by Bradley, J., discusses the reasons and authorities for the general rule requiring the issuing and returning of the execution in such cases, and concludes that it is not so universal in its application as to deny to a party the interposition of the equity powers of tbe count when the situation is such as to render impossible the aid of a couit of law to there take the preliminary steps to produce what ordinarily may be treated as the condition precedent to the application for equitable relief. We incline to the opinion that this case presents an exception to the general rule mentioned, and that the plaintiff, under the allegations of his complaint, was entitled to the relief asked for; and the order and interlocutory judgment appealed from should therefore be affirmed, with leave to the defendant to " serve an answer within 20 days, on payment of the costs of the demurrer and of this appeal.

All concur


author: Lewis, J.

text:
    Clement J. Weber, Resp’t, v. Edward H. Butler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Libel—Careless publication.
    A publisher of a newspaper is liable for publishing defamatory matter concerning plaintiff, on account of confusing him with another person of the same name where, if reasonable care had been taken, it could have been ascertained that plaintiff was not the person intended.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      Irving Browne and Adelbert Moot, for app’lt; Filkins & Coe¡ for resp’t.
   Lewis, J.

This is an action of libel brought by the plaintiff, a resident of the village of Medina, Orleans county, against the defendant, as the proprietor and publisher of the Buffalo Evening News, a daily newspaper published in the city of Buffalo, for publishing in said paper an article which charged the plaintiff with having been guilty of the crime of bigamy. The article was concededly libelous, and it was unquestionably published of and concerning the plaintiff; the reporter for the paper, who wrote the article and caused it to be published, so testified, and an article subsequently published by the defendant in the paper in substance so stated. An action had theretofore been commenced in the supreme court, county of Erie, by a Mrs. Louisa Weber, against Clem Weber, to annul a marriage between the parties, on the ground that at the time of their said marriage the defendant had a wife who was then living, and which prior marriage was at the time in full force. A motion had been made in the divorce action, founded upon the pleadings in said action and affidavits, for a commission to take the testimony of a foreign witness, and the papers were on file in the clerk’s office. The defendant’s reporter, learning of said motion, examined said motion papers sufficiently to ascertain the nature of the action, and that the defendant’s name was Clem Weber; and having known the plaintiff when he was a resident of Buffalo, and whom he knew by the name of Clem Weber, he assumed that the defendant in the divorce action and the plaintiff were one and the same person, and wrote and caused to be published the libelous article. Had he examined the motion papers with the care which the gravity of the charge made against the plaintiff in the article demanded, he would have easily discovered that the defendant in the divorce action was not the plaintiff. He would have learned from the papers that the parties to the divorce action were married at Sackett’s Harbor, N. Y., in the year 1889, and resided there till 1891, when the defendant abandoned the plaintiff, left the stale, and never returned thereto to live. Had hé read the papers with care, he would not have fallen into the error he did.

The jury were justified in finding from the evidence that it was a careless and reckless act to publish the article under the circumstances disclosed, and if they so found they were at liberty to award punitive damages. Holmes v. Jones, 121 N. Y. 461; 31 St. Rep. 379; Warner v. Press Publishing Co., 132 N. Y. 181; 43 St. Rep. 633. This case is distinguishable from the case of Hanson v. Newspaper Co., 159 Mass. 293, to which our attention is called in the appellant’s brief. In that case the trial court found that the article complained of was not published of or concerning the plaintiff. Neither did he find that the publisher was guilty of carelessness or negligence in publishing the article. Not so here. We do not think the verdict in this case, of $800, was so excessive as to justify us in disturbing it.' The defendant’s paper had at the time the article was published a daily circulation of over 50,000 copies. Several hundred copies were circulated in the village where the plaintiff resided with his family, consisting of a wife and children, and where he was engaged at the time in the business of a dry-goods merchant.

We do not find, after a careful examination of the case and the excéptions of the defendant, any good ground for disturbing the verdict.

The judgment and order appealed from should be affirmed.

All concur.


text:
    Charles K. Bryant, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Master and servant—Rules.
    Where the rules of a company are reasonable and adequate to prevent an injury to an employe, which is occasioned solely by the failure of aco employe to observe and execute them, the company is not liable.
    2. Same.
    If the company’s negligence, to any .material extent, is co-operative with that of the employe in producing the result, it may be chargeable for it.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the general term.

      Eugene Van Voorhis, for pl’ff; Edward Harris, for def’t.
   Bradley, J.

The main question is whether or not there was any support in the evidence for the charge of negligence against the defendant, as a contributing cause of the injury suffered by the plaintiff. The train drawn by engine 565, r,un by the plaintiff, was an extra one, and was run upon-special orders. The conductor and engineer were advised by the time-table when regular trains were due at stations, and, unless directed to run upon the time of such trains, they must keep out of the way of them. Whey they received at Fishers station the telegraphic order, addressed to the conductor and engineer of train 69, that the plaintiff’s train had the right of track against No. 69 from Pittsford to Victor, neither the plaintiff nor his conductor observed that it was addressed to 69 at Victor. They therefore did not learn from it that the engineer of 69 was to receive the order at that place. But that fact does not seem very important. The effect of the order was that the plaintiff’s train and 69 would meet at Yictor, and it was his business to proceed with his train to that place. If he had noticed that the order was addressed to those upon train 69 at Yictor, the may have had reason to suppose that the engineer of that train would not receive it until he reached there. In fact neither the conductor nor engineer of train 69 had any information that it would meet the extra, 565, at Yictor, before the collision occurred; and it may be assumed that, if they had been advised of the order at any station before they reached there, their train would have been under control, and the accident avoided. The omission to give timely information of the order to the conductor or engineer of 69 is the fact upon which the plaintiff seeks to predicate the charge of negligence of the defendant, and such may be the reasonable inference, unless, by the force of a system of rules and regulations then existing for the guidance of those running trains, the defendant is necessarily relieved from that imputation. Yictor was a signal and water station, and was known to the railroad men asan “order-board station.” By rule 61 of the company^it was provided that “ all trains or engines approaching stations * * * where signals are located must do so expecting to find them at danger, and must be prepared to stop in accordance with instructions governing them; ” by another rule it was declared that “red signifies danger, and is a signal to stop; ” and by rule 125 it was further provided that “ all trains must approach the stations with care, and freight trains must approach water stations slowly and cautiously, always expecting to find a preceding train there.” It is provided by rule 121 that “no regular freight train must exceed the time-table.” The distance from Canandaigua to Yictor is nine miles, and, as appears by the company’s time-card, the time to be occupied by freight train No.'69 in running it was 35 minutes. This would give the average speed of about 15^- miles per hour. If the engineer of the train had complied with the rules of the defendant, it is quite evident that the accident would not have happened. He saw the flagman’s signal 1,400 feet east of the station, and about the same time he was also able to see the red-light signal at the station, which required him to stop there. But then his train was running at the rate of 20 or 25 miles per hour, down grade. The consequence was that, with all the means he was able to apply to slack the speed of the train, it was reduced only to the rate of 15 miles per hour when it struck the plaintiff’s engine. The approach of the station at such speed was a violation of the rules of the company before mentioned, which required the engineer to have his train under his control. Not apprehending any signal to stop at Yictor, and not being aware of any business requiring it, the engineer did not intend to stop there. The train 69 left Canandaigua forty minutes late, and was behind time at Yictor. But, as this was an order and signal station, it was the duty of the engineer to have the train under his control when it approached there, and be prepared to observe and obey the order to stop as the signal there required. The proposition of the defense is that while the injury may have been the consequence of the negligence of the engineer of train 69, there was no fault on the part of the defendant, contributing to it, because it had furnished, by rules, a system by which, if observed by those running the moving train, the calamity would have been avoided. That is an answer to the charge against the defendant, if it had, by its rules, done all that was reasonably required of it for the safety of the employes in the operation of trains upon the road, having in view also the circumstances appearing in the case at bar. Then the execution of the regulations is matter of detail to be observed by them,' and there is no liability of the company, in behalf of one of the employes, for the consequences of the fault of another of them in failing to do so. Slater v. Jewett, 85 N. Y. 61; Byrnes v. N. Y., L. E. & W. R. R. Co., 113 id. 251; 22 St. Rep. 936.

An extra, such as was the plaintiff’s train, is not upon the time-card. It is inferior in class to all regular trains, and must, at places of meeting them, take the branch or side track. The plaintiff’s engine reached the point of divergence from the main to the side tftick, about 300 feet west of the station, and, but for the want of water in the boiler, would have passed onto it in time to have escaped the accident. Thp conductor and engineer received telegraphic orders to run from one station to another. The last order received by them was that their train had the right of track against 69, from Pittsford to Victor. It seems that no order to that effect was sent to the conductor pr engineer of 69, although it might conveniently have been, as that train was some time at Canandaigua, and did not leave there until 12:20. But the purpose was to give them the order at the station where the trains were to meet, and until then they were not advised that the order was awaiting their, arrival at that'place. The serious consequences liable to result from collision of one running train with another impose upon the company the duty of using all precautionary means reasonably practicable to avoid it. While there is some evidence indicating that there were rules of the company relating to the subject of running trains under telegraphic orders, it does not appear by the evidence what they were. It may, therefore, here be assumed that the matter of furnishing special orders for the running of extra trains is left to the telegraphic dispatcher, under the general direction of the superintendent, and for the consequences of any want of due care on his part in that respect the company may be responsible. Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416; 59 St. Rep. 802. While the collision may be deemed attributable to the negligence of the engineer, in not observing the rules of the company, in running train 69 into Victor, if the defendant’s negligence, to any material extent, was cooperative with that of the employe in producing the result complained of, it may be chargeable for it. Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546; O'Lauqhlin v. N. Y. C. & H. R. R. R. Co., 9 St. Rep. 384; Id., 113 N. Y. 623; 22 St. Rep. 992. It would have been a precautionary act, neither unwise nor unreasonable, for the dispatcher to have sent a copy of the order to the conductor or engineer of train 69 at some station east of Victor. But if the rules of the company were reasonable and adequate for the purpose of preventing the calamity in question, and it was occasioned solely by the failure to observe and execute them, it is difficult to see that anything further was required of it in the matter ; and the effect of sending the order to the persons in charge of the running train would have been to advise them to observe the existing rule, which required the engineer to have the train under his control in approaching the Yictor station.

There is evidence tending to prove that it was the custom or practice of freight trains on the road, when behind time, not to stop at stations where they had nothing to do. This fact is urged as a reason why the officers of the company had some occasion for apprehension that an earlier receipt of the order by the engineer of the approaching train was but a reasonable precaution, and that it might be essential to the protection of those having charge of the trains. This would be so if it had been the custom to run such trains into and past stations otherwise than at such reduced speed as to have them under control as provided by the rules before mentioned. But, so far as appears, there is nothing in the rules requiring freight trains to stop at stations where there is no service for them, unless signaled to do.so. Nor is the fact that such custom or practice existed inconsistent with the requirement of the rule that, when approaching stations where signals are located, they must do so expecting to find them at danger, and must be prepared to stop in accordance with „ instructions governing them. The engineer was advised of that and the other rules before mentioned, and the collision was the consequence of his violation of them, and his negligence the cause of the plaintiff’s injury. Nothing appears to warrant the inference that there was any occasion for apprehension on the part of the defendant that the rules of the company might not be effectually observed in running train 69 into Yictor. If they had been obeyed, no injury would have been done. The conclusion logically follows that it was caused by the negligence of plaintiff’s coemploye, without any negligence on the part of the defendant.

The motion for a new trial should, therefore, be denied, and judgment upon the nonsuit directed for the defendant.

All concur.


author: Dwight, P. J.

text:
    Joseph Colvin, Resp’t, v. Josiah Colvin Young, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Will—Construction—Charge.
    Where the will directs that a legacy be paid by the devisee, whether he is the executor or another, the legacy is charged upon the real estate so devised.
    Appeal from a j udgment in favor of plaintiff.

      0. R. Berry and J. I). Teller, for app’lt; A. P. Rich, for resp’t.
   Dwight, P. J.

The action was for the partition of a farm of fifty acres of land, situate in the town of Aurelius, in Cayuga county, of which Josiah Colvin died seized. There were 'a great number of parties defendant, none of whom appeared in the action except the appellant, Josiah Colvin Young, and two infants, both of whom made the usual general answer by guardian ad litem appointed to represent them. The only issue made was by the answer of the appellant, which set up a lien on the property sought to be partitioned, by virtue of a bequest contained in the will of the deceased; and the question whether that bequest constituted a charge on the real estate of the testator is the only question presented by this appeal. The referee appointed to ascertain the rights and interests of the parties, and “ to construe the said will so far as may be necessary,” found and reported in favor of the charge and lien of the legacy on the real estate to be partitioned; while the court, at special term, on motion to confirm the report of the referee, and for judgment accordingly, held and decided otherwise, and directed a sale and distribution of the proceeds of the real estate without payment of the legacy in question. It is from the judgment entered on the latter direction that this appeal is taken.

The disposing clauses of the will of Josiah Colvin are as follows, and the final clause’ appoints Eleanor M. Colvin, his wife, its executrix: “ First. After all my lawful debts are paid and discharged, I give and bequeath to Josiah Young, my nephew, four hundred ($400.00), to be paid to him when twenty-one years of age, by my executrix, provided that she then judges that he will make proper use of the money. If she judges otherwise, she shall retain the same at her discretion until such time as she shall decide to pay it to him. It is also to be understood that she is to pay no interest on the money if retained by her. Second. I give, devise, and bequeath to Harriet N. Blakeman, my niece, one hundred dollars ($100.00), to be paid her by my executrix two years after my decease. Third. All the rest, residue of my estate, both real and personal, I devise and bequeath to Eleanor Maria Colvin, my wife, to have and to hold as her own during her natural life,'it being my will that she be entirely unrestricted in its use, and that she have full power to sell the real estate and give a deed for the same to the purchaser, as though it was hers, and her warranty is herein fully authorized by me. Fourth. If there shall be anything left, after her decease, of the estate above given and bequeathed to her, it shall be equally divided among my brothers and sisters. Where any of them are deceased, the share of the deceased to be given to the legal heirs of the same. This last clause of my will I desire to have executed by the executor or executors of my said wife.”

The personal property of the testator at the time of the execution of his will and at his death—exclusive of the farm, stock,' and implements, which it must be supposed he intended to remain on the farm, for the use of his wife—was not sufficient in value to pay his debts and funeral expenses and the two pecuniary bequests. This fact, and the manner of the disposition of the residuary éstate, go far to bring the case within the doctrine of the familiar cases of Hoyt v. Hoyt, 85 N. Y. 142; Briggs v. Carroll, 20 St. Rep. 552; 3 N. Y. Supp. 686; same case on appeal, 117 N. Y. 288; 27 St. Rep. 468; McCorn v. McCorn, 100 N. Y. 511; Brill v. Wright, 112 N. Y. 129; 20 St. Rep. 305; and thus to raise the presumption of an intention on the part of the testator to charge the legacies on the real estate. But the contention of the appellant in this case is not required to rest upon the mere presumption arising out of the form of the testamentary dispositions and the insufficiency of the personal estate. It is, we think, supported by the much more certain and definite rule, of at least equal authority, to the effect that where the will directs that a legacy be paid by the devisee of the real estate, whether that devisee be the executor of the will or another, the legacy is charged upon the real estate so devised. See Brown v. Knapp, 79 N. Y. 142, and the cases there cited in the opinion of Earl, J.; also Van Rensselaer v. Van Rensselaer, 113 N. Y. 207; 22 St. Rep. 947. If it is objected to the application of this rule in this case that the devise to the executrix is of a life estate, and that there is a final remainder over to devisees not charged with the payment of the legacy, the objection is, we think, avoided when the particular character of the devise for life and of the final remainder is considered. It will then be seen that the devise to the executrix is by no means that of a mere life estate, but that it gives to her the absolute disposition of the whole of the residue of the estate, and the right to exhaust the whole of it in its use by her if she sees fit. The language is, “ It being my will that she be entirely unrestricted in its use; that she have full power to sell the real estate, and give a deed for the same to the purchaser, as if it were hers; ” and then, “ if there shall be anything left, after her decease, of the estate so given and bequeathed to her, it shall be equally divided among,” etc. This language plainly gave to the widow and executrix the absolute power of disposition, except by will, of all the residue of the estate after, as we say, the payment of the legacies before given. Leggett v. Firth, 132 N. Y. 7; 42 St. Rep. 851; Thomas v. Wolford, 16 St. Rep. 764; 1 N. Y. Supp. 610; Flanagan v. Flanagan, 8 Abb. N. C. 413. The limitation imposed by the terms of the bequest to the appellant, upon the payment of the legacy, had no effect upon the character or the vesting of the gift. It vested absolutely in the legatee upon the death of the testator, and the limitation related to the time of payment only. Van Rensselaer v. Van Rensselaer, supra; Hone v. Van Schaick, 20 Wend. 564. But even that limitation was necessarily removed by the death of the widow and executrix. It was her judgment alone which was referred to by the testator in respect to the time of payment of the legacy, and there is no authority anywhere to substitute any other discretion in the place of hers. The gift unnecessarily became payable at once upon her death. The executrix had paid twenty five dollars of the amount during her lifetime, and by the terms of the bequest the estate is relieved of the obligation to pay interest during the suspension of payment of the principal in the discretion of the executrix. The judgment appealed from should be modified so as to declare the legacy in question a lien on the lands to be sold to the extent of $375, with interest from the death of the executrix, and so as to direct the payment of the amount specified to the appellant out of the proceeds of sale before distribution thereof. All concur.

So ordered, with costs to the appellant, payable out of the fund. .


text:
    Jackson W. Bowdish, as Assignee, etc., Resp’t, v. Esek Page et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Chattel mortgage—Validity—Creditors.
    An infirmity in a chattel mortgage, which arose after execution, is not available to the creditors of the mortgagor as against the mortgagee in possession.
    2. Election oe remedies—Sale.
    A sale, under an execution, of debtor’s interest in mortgaged property is not an election of remedies, so as to preclude the execution creditor from claiming under the chattel mortgage.
    3. Assignment eor creditors—Rights.
    An assignee for creditors cannot forfeit the rights of the creditors to , have the property, held by him as assignee, made available for their benefit.
    4. Damages—Conversion.
    The price for which defendant sold the property at private sale is evidence of its value in an action for conversion.
    Appeal from a judgment in favor of plaintiff.

      Geo. N. Orcutt and Jas. H. Stevens, for app’lts; Gabriel L. Smith, for resp’t.
   Bradley, J.

The plaintiff, as assignee for the benefit of creditors of Mortimer Allison and Lawrence Allison, seeks to recover for the alleged conversion of a quantity of boots and shoes. The defendants alleged by way of justification that the property was taken by virtue of an execution issued upon a judgment in favor of the defendant bank against Isaac Allison, and that the title was then in him. It appears that Isaac Allison was engaged in the business of manufacturing boots and shoes at Canisteo, N. Y. ; that he became indebted to Mortimer and Lawrence Allison, who were in the business of banking in the name of the Bank of Canisteo, and they had assumed some liabilities for him as accommodation indorsers; that on the 1st of October, 1883, to secure payment of such indebtedness, and to indemnify them against liability as such indorsers, Isaac Allison, by an instrument in writing, sold and transferred to them all the boots and shoes, finished and unfinished, all the leather, stock and other materials on hand in and about the factory occupied by him, and certain other property, giving them power to take possession of the property. The instrument was filed with the clerk of the town of Canisteo (where the mortgagor resided) on October 3, 1883. Afterwards, on July 21, 1884, Mortimer Allison and Lawrence Allison made to the plaintiff a general assignment for the benefit of their creditors. The referee found that on July 22, 1884, the plaintiff went to the factory where the goods were, with one of his assignors, who turned them over to him, and that on the next day (July 23d) they went there again, and, at the request of the plaintiff, Isaac Allison went with them; that the plaintiff there insisted that Isaac turn over to him his interest in the stock of goods, and give him immediate possession of them, which Isaac at first declined to do; that the plaintiff promised him that if he surrendered the possession to him he would credit the proceeds of the property as fast as sold upon his (Isaac’s) account, and thereupon Isaac delivered the possession of the goods to the plaintiff, who took the possession of them, and took from Isaac the keys of the building in which the goods were, locked the door when they left it, and kept the keys ; that the plaintiff then became and was vested with the entire title and possession of the goods, and that from that time thereafter until dispossessed by the defendants the plaintiff, as assignee, had the actual and complete possession of the goods in question for the benefitof the creditors of Mortimer and Lawrence Allison. On April 30, 1884, the defendant bank recovered a judgment for $12,785.03 against Isaac Allison upon his liability as indorser of notes made prior to the date of the mortgage before mentioned. Execution upon the judgment was issued July 29, 1884, to the defendant Page, as sheriff, and by his deputy, the defendant Murray, was levied upon the property August 1, 1884. It was by virtue of the levy, taken away March 21, 1885, and sold in April, 1885. The referee found that the bill of sale or chattel mortgage was made, delivered, and taken in good faith, for a good consideration, and without any intent of any of the parties to it to defraud the creditors of the mortgagor. He also found that on October 31, 1883, the mortgagees took possession of the property with the consent of the mortgagor; that the latter continued to have access to the factory building, proceeded to sell some of the goods for the mortgagees, and paid a portion of the proceeds to them up to July, 21, 1884, and that such continued access of Isaac, together with the dealings between him and them' previous to that day, rendered the sale by such chattel mortgage, and delivery from him to them, void as to his creditors.

The chattel mortgage was not refiled within thirty days next preceding the expiration of the year from the time it was filed. It therefore ceased tq be valid as against the creditors of the mortgagor. Laws 1879, chap. 418. But the defendants were in no position to question the validity of the mortgage until the bank judgment was recovered, and execution issued upon it. Button v. Rathbone, Sard & Co., 126 N. Y. 187; 36 St. Rep. 945. The finding of the referee that the mortgage in its inception was valid as against the creditors of the mortgagor has the support of evidence, and it is so treated. The plaintiff claims that on the 23d day of July, 1884, he acquired, and thereafter had the actual and continued possession of the goods until they were taken by defendants, in March, 1885, and that during that time he had title to them. If that proposition of fact as found by the referee is sustained by the evidence, the omission to refile the mortgage is not available to the defendants, as such taking possession by the plaintiff preceded in point of time the issuing of the execution upon the judgment of the defendant bank. Kitchen v. Lowery, 127 N.. Y. 53; 37 St. Rep. 327; Tremaine v. Mortimer, 128 N. Y. 1; 38 St. Rep. 740; Stephens v. Perrine, 69 Hun, 578; 53 St. Rep. 261.

The mortgage was valid between the parties to it, and, although it was valid in its inception, it must, in view of the finding of the referee, be assumed that by the dealings between them the mortgage had, at the time of the assignment to the plaintiff, become void as against creditors of the mortgagor. It has been held that possession of property taken pursuant to a chattel mortgage void as against the creditors of the mortgagor is not effectual to support title as against an existing creditor of the mortgagor, although his process by execution is issued after the possession has been so taken by the mortgagee. Dutcher v. Swartwood, 15 Hun, 31; Stimson v. Wrigley, 86 N. Y. 332, 339; Quinn & Nolan Beverwyck Brewing Co. v. Hart, 48 Hun, 393; 16 St. Rep. 321; Mandeville v. Avery, 124 N. Y. 376; 36 St. Rep. 338. In the cases where it was so held the infirmity of the mortgage as against the creditors of the mortgagor existed at the time it was made and delivered. In that respect they are distinguished from the present case. But, assuming that by reason of the fact so found by the referee the plaintiff’s claim of title as against the defendants cannot rest solely upon that derived from his assignors of the general assignment, it may nevertheless be sustained if supported by some transfer from Isaac Allison other than that expressed in the mortgage. Brown v. Platt, 8 Bosw. 324; Hauselt v. Harrison, 105 U. S. 401; Stanley v. Nat. Union Bank, 115 N. Y. 122; 23 St. Rep. 966. The referee did not, in express terms, find that the possession was or was not so taken by the plaintiff by virtue of the chattel mortgage. By reference to the evidence upon the subject of the transaction of July 23, 1884, at the factory building, it is seen that the plaintiff testified that he told Isaac that he, as assignee, had some claims against him, consisting of notes and book accounts for overdrafts, and called his attention to four notes of $2,000 each, and to his overdraft of $6,800, as his indebtedness; exclusive of interest, and asked him if he could pay. On receiving his answer that he could not, the plaintiff demanded of him that he turn over to him his interest in the stock of goods in the building. That Isaac, claiming that he had been receiving some commission from L. & M. Allison, insisted that if he turned over the goods to the plaintiff the arrangement should be continued. That the plaintiff refused to do so, stating that he knew nothing of their arrangement, and that he wanted the title to the goods absolutely, and as fast as they were sold he would apply the proceeds in payment of his indebtedness. That Isaac said he would turn the goods over to the plaintiff, and then went through the building, singling out the goods belonging to him, or those in which he claimed to have an interest. He then, stating that he surrendered the possession of the goods to the plaintiff, gave him the keys, and the plaintiff then said he accepted the goods and claimed them from that time as assignee, etc. These included the goods in question. It appears that some of the boots and shoes and stock in the factory building had been turned out to one Crandall prior to the time of* the general assignment to the plaintiff, and that the Crandall goods, or so much of them as were not in the meantime sold, remained in the building as long as those in question continued there. The indebtedness of Isaac Allison to the plaintiff as such assignee was as so stated by the latter. In the interview between him and Isaac Allison on the 28d of July, 1884, when the possession of the property was so delivered to and taken by the plaintiff, the chattel mortgage was not mentioned, and the inference from the evidence is permitted that the plaintiff was then seeking payment or security for, the debt then referred to .against Isaac, and that the transfer and possession then made to, and taken by him were not' dependent upon the mortgage. In support of the finding of, the referee to that effect there is evidence tending to prove that the possession of the property taken by the plaintiff on July 23, 1884, was continued until it was taken away by the defendants by virtue of the execution issued upon the judgment recovered by the defendant bank against Isaac Allison. In Bullis v. Montgomery, 50 N. Y. 352, and Steele v. Benham, 84 id. 634, no circumstances appeared tending to show an actual change of possession of the property. Here the plaintiff went into the building, and not only were words used to the effect that the possession of the property was surrendered and taken, but in that connection the parcels of property were ' pointed to and singled out, and all was done that could well be accomplished for the purpose, other than actually taking the goods from the building; and by giving him the keys the property was placed in the exclusive control of the plaintiff. In view of the character of the property, this was sufficient. And the fact that Isaac Allison, having charge of the Crandall goods there, had from time to time access to the building, and occasionally was authorized by the plaintiff to sell for the latter goods from the stock, did not necessarily have the effect, to deny to him the continued possession of the goods. This, upon the evidence, was a question of fact for the referee. Stanley v. Nat, Union Bank, 115 N. Y. 122; 23 St. Rep. 966. It may be observed that since the statute upon the subject of assignments for the benefit of creditors the assignee is something more than the hand of his assignor. He is a trustee for the creditors. Laws 1877, chap. 466. And his transaction in respect to the property in question may be deemed to have been conducted as such trustee in behalf of such creditors.

It is further urged on the part of the defense that the plaintiff, by a proceeding taken somewhat inconsistent with his claim of title to the property, denied himself the right to effectually assert reliance upon such title in this action. It appears that on December 4, 1884, a judgment in his favor upon confession was entered upon the notes so held by him against Isaac Allison; that upon it .was then issued an execution by virtue of which Isaac’s interest in the property was advertised for sale, sold, and bid in by him lor the sum of $151. This levy and sale were afterwards set aside by the court. He was at liberty to take a judgment. But it is contended that the issue of the execution, levy, and sale constituted a proceeding inconsistent with his right to retain the property under any claim of previous transfer to him, and therefore it was an election upon the principle that when a party has pursued one of two inconsistent remedies he is not afterwards permitted to make the other available. That doctrine may not be applicable to the situation in the present case. Where there is a transfer of property as security, a right of redemption may exist consistently with the transfer, notwithstanding the default of the person malting it, and may be foreclosed by sale of the property. Bragelman v. Dane, 69 N. Y. 69. And if it be a mere equity of redemption, not salable upon execution, there can be no remedy in the proceeding to make a sale in that manner. Leadbetter v. Leadbetter, 125 N. Y. 200; 34 St. Rep. 929. There is a further reason why the doctrine of election is not applicable to this case. As has been remarked, the plaintiff is a trustee for the creditors of his assignors, and he could not, by pursuing a futile remedy, produce a forfeiture of the vested rights of his cestuis que trustent to have the property held by him in that relation made available for their benefit; nor can he voluntarily relinquish their rights in that respect. His power and duty in the execution of the trust are in harmony, and he cannot effectually proceed in contravention of either. Shepherd v. McEvers, 4 Johns. Ch. 136; Russell v. Russell, 36 N. Y. 581; Fitzgerrold v. Topping, 48 N. Y. 438.

The question of value of the goods was contested at the trial. The evidence on the part of the plaintiff was to the effect that their value was upwards of $10,000. They were bid in at the sheriff’s sale for the defendant bank, and it employed persons who were competent for the purpose to examine the goods and make an inventory of them and their value. Those persons were called as witnesses by the defendants, and by their evidence it appears that they did so, and that they estimated the aggregate of the goods to be $4,542.80. And the defendants called another witness, Who was sent to examine the goods by the person who contemplated purchasing and afterwards purchased them, and he, after his ex: amination, put the value at $5,100. His evidence is that he arrived at the price he was willing to pay, and that such sum mentioned by him was the fair market value. Another witness called by the defendants made an estimate of the value below that of any of the other witnesses, but his examination was made of a portion of the stock only. And the lowest sum which the referee upon the evidence could fairly adopt as the value was $4,542.80. He, however, found that the value was $8,691.25. This was. within the evidence of value on the part of the plaintiff. But the difficulty of sustaining the recovery arises upon the exception to the conclusion of the evidence offered by the defendants to prove the price for which the sale of the goods was made by the Citizens’ National Bank to Ingalls, who made the purchase. In connection with the offer, the defendants proposed to prove that the goods were placed upon the market in charge of a competent person, that a proper effort was made to' sell them at the best obtainable price, and that the price paid by Ingalls was the highest that the bank could obtain for them. The evidence was excluded, and the defendants excepted. The rule seems to be well settled that, although the sale was not made at public auction, but was a private sale, the evidence of the price for which it was made was competent, and its exclusion error. Wells v. Kelsey, 37 N. Y. 143; Hoffman v. Conner, 76 N. Y. 121; Hangen v. Hachemeister, 114 N. Y. 566; 24 St. Rep. 526. The weight which the evidence would have had, or whether it would have had any, with the referee is a question which cannot be determined on this review, but, in view of the evidence introduced, including that of a person who in making an estimate of the value represented the purchaser, it would seem that the defendants will not be prejudiced by the error in the exclusion of the evidence by the adoption of the lowest price before mentioned, if the plaintiff is disposed to do so, to avoid the necessity of. another trial. In the view taken, no other question requires consideration. The judgment therefore must be reversed, and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery of damages to $4,542.80 and interest thereon from the 21st day of March, 1885, and in that event the judgment be so modified, and as modified, affirmed, without costs of this appeal to either party.

All concur.


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    Commercial Bank of Rochester, Resp’t, v. Burton H. Davy, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Chattel Mortgage—Filing.
    A failure to reflle a chattel mortgage does not avoid it as against the mortgagor’s creditors, where the mortgagee took possession of the chattels before such creditors acquired a lien.
    2. Same—Actual notice.
    Nor as against creditors who had actual notice of it.
    Appeal from a judgment in favor of plaintiff.

      James S. Garloclc, for app’lt; John H. Hopkins, for resp’t.
   Lewis, J.

This action was originally brought in the municipal court of the city of Rochester for the conversion of personal property. A judgment having been rendered in that court in favor of the plaintiff, an appeal was taken to the county court, where the action was again tried, and resulted in a judgment in favor of the plaintiff, from which this appeal was taken.

One William E. Weeks, being indebted to the Commercial National Bank of Rochester in the sum of $521.91 for mone}T theretofore loaned to him by the bank, for the purpose of obtaining an extension of the time of payment of said, indebtedness he-gave to said bank his promissory note, dated February 17, 1890, for said sum, payable November 18, 1890, and on the same day he gave to the bank his chattel mortgage upon the property in question as collateral security for the payment of said note. The note was paid only in part, and Weeks gave him his note for $348.58, that being the balance unpaid. The latter note was renewed from time to time until the 11th day of September, 1892, when Weeks gave to the bank his note for $380. $350.50 of this sum was part of the original indebtedness to the bank, which was secured by the note and chattel mortgage. The mortgage was duly filed on the 20th day of February, 1890. It was refiled on the 17th day of February, 1891. It was never thereafter refiled. The plaintiff succeeded to all the property rights of the said Commercial Bank, becoming thereby the owner of said promissory note and the chattel mortgage, and on the 16th day of January, 1893, the note and mortgage being due and wholly unpaid,-plaintiff took possession of the mortgaged property by virtue of the terms and conditions of the mortgage. On the 25th day of January, 1893, Mrs. Elizabeth Hawes recovered a judgment in the supreme court of the state of New York against Jennie M. Weeks for the sum of $2,516.13, and on the same day she caused to be issued to the defendant, as sheriff of Monroe county, an execution thereon, and the defendant on the following day, but at a time subsequent to the time the plaintiff took possession of the said mortgaged property under its mortgage, levied upon and took the property from the plaintiff’s possession, and sold the same at auction as the property of Mrs. Weeks. It is the contention of the defendant that the property at the time of the levy belonged to the judgment debtor, Mrs. Weeks; that the bank mortgage being given to secure the payment of the original note of $521, it was not a continuing security for the notes given in the renewal thereof; and further, that the bank mortgage ceased to be a lien on the property as against the judgment because of the failure to refile the same. It is provided by chapter 279 of the Laws of 1833, as amended by chapter 418 of the Laws of 1879, that every mortgage of goods and chattels ‘ ‘filed in pursuance of the act shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith after the expiration of one year from the filing thereof, unless “within thirty days next preceding the expiration of each and every term of one year after the filing of such mortgage, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgage in the property thereby claimed by him by virtue thereof shall be again filed in the office of the clerk.” The statute was passed for the protection of creditors of the mortgagor and subsequent purchasers or mortgagees of the property in good faith. The failure to refile in no manner affects the validity of a mortgage as between the parties thereto. Mrs. Hawes was neither a creditor of the mortgagor nor was she a subsequent mortgagee of the property. The defendant attempted to establish upon the trial that the mortgagor William E. Weeks had sold and transferred the property in question to his wife, Jennie M. Weeks, the judgment debtor, and that at the time of the levy and sale Mrs. Weeks owned the property, and that Mrs. Hawes, as her judgment creditor, became a purchaser of the property in good faith, within the meaning of the statute referred to. There are several sufficient reasons why the defense failed. It was established by undisputed evidence, and the trial court so found, that the plaintiff took possession of the property under its mortgage before said levy was made. It seems to be well established by authority that in such a case the mortgage is valid notwithstanding the failure to refile. We so held in the case of Stephens v. Perrine, 69 Hun, 578; 53 St. Rep. 261. The opinion of the court was by Haight, J., who elaborately reviewed the authorities holding that doctrine. Again, the judgment creditor was aware of the giving of the mortgage held by the plaintiff. At the time of its execution she was the owner of a prior chattel mortgage covering the same property, and by a proper indorsement upon the plaintiff’s mortgage she consented that it should take precedence of her mortgage. Again, the defendant failed to show that the judgment debtor, Mrs. Weeks, ever bad title to the property in question. An effort was made upon the trial to prove that at some time either in the year 1889 or 1890—the time was left uncertain—Mr. Weeks, the mortgagor, gave a written bill of sale of the property in question to his wife for a consideration of $800. Without rehearsing the evidence, it is sufficient to say that it utterly failed to establish that any such sale was ever in fact made. The evidence by which it was sought to prove such sale was so contradictory, inconsistent, and manifestly untrue that it failed to satisfy the mind of the trial court; and the court subsequently found that Mrs. Weeks was never the owner of the the property, but that it was the property of the estate of the mortgagor, Weeks, at the time it was taken by the plaintiff under the mortgage. (The mortgagor Weeks died after the giving of the mortgage and prior to the trial.) The findings of the trial court are fully sustained by the evidence. • The mortgage, we think, remained as security for the notes which were given in renewal of the original notes.

It follows that the judgment appealed from should be affirmed.

All concur.


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    George T. Ditmars et al., as Executors, etc., App’lts, v. Frederick B. Sackett et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Evidence—Admissions—Attorney.
    The statements of an attorney in the employ of the lender, made after the transaction is completed, which tend to show that a sum retained by such attorney was a bonus to his client, is not admissible.
    Motion for a new trial on a case and exceptions, directed to be beard in the first instance at the general term.

      William S. Moore, for pl’ffs; G. B. Sackett, for def’ts.
   Lewis, J.

The defendant Frederick B. Sackett, on the 16th day of November, 1891, executed and. delivered to John Y. Ditmars a chattel mortgage upon a number of horses, cattle, and a quantity of farming utensils, to secure the payment of a promissory note dated on that day, payable three months after date, for the sum of $150, which was made by the mortgagor and the defendant W. G\ Sackett. The mortgagee died on the 29th day o£ March, 1892, leaving a will, in which these plaintiffs were named as executors. The promissory note not having been paid, plaintiffs, as such executors, duly demanded the mortgaged property of the defendants, which was refused, and they thereupon brought this action to recover possession thereof, basing their claim upon the said mortgage. The defendants interposed an answer, setting up the defense of usury. The verdict of the jury was for the defendants. The jury fixed the value of the property at the sum of $448.80, and damages for its detention at $195. The defendants not having required the return of the property, it was sold by the plaintiffs at auction on the 4th day of January, 1893, a few days after it was replevied.

The evidence upon the trial to sustain the plea of usury was quite slight. It was, perhaps, however, sufficient to sustain the verdict, so far as that question was concerned. An examination of the evidence has satisfied us that the verdict would be set aside and a new trial granted for the reason that the amount of damages found by the jury was altogether too large, if the plaintiffs were in a position to raise that question; but they are not, for the reason that this is not an appeal from the judgment, but is simply a motion for a new trial upon a case and exceptions directed to be heard in the first instance at the general term, and the question is not raised by any exceptions taken by the plaintiffs. -Had the correct rule of damages been adopted on the trial, the amount found by the jury for the use of the property would have been very much less than it was. The mortgaged property consisted of a quantity of horses, cows and farming implements. The greater part of the property at the sale was bid in for the defendants, and went into their possession immediately, and was retained by them down to the time of the trial. This property having a usable value, the correct rule of damages as to that portion thereof which was not retained by the defendants was what it was worth at the time of the trial, and the value of its use during the time of its detention. Allen v. Fox, 51 N. Y. 562. But as to that portion of it which was bid in for the defendants and retained by them, the correct rule was the value of the property, and interest thereon from the time it was taken to the time of the trial. The defendants were allowed to give evidence as to the value of the use of that portion of the property purchased and retained by the defendants, and the amount of the verdict was largely increased in consequence of this evidence. But it does not appear from the case that any exception was taken by the plaintiffs to its admission.

The jury, after retiring to consider their verdict, returned into court and reported that they had found a verdict for the defendants_ for the sum of $393.80. The court thereupon remarked to the jury: “ I instructed you that if you found for the defendants you were to find that they were entitled to the property; that you were also to find the value of the property at the present time; also a separate item as to what damages they have suffered, if any, by reason of the detention of the property. Your verdict should be rendered in that form. If you find that they are entitled to the property, find its value, and find one cent damages, if nothing more. You may retire.”

The jury again returned into court, and reported that they awarded the property to the defendants, and fixed its value at the present time at $448.80, and damages for its detention $195. How the jury came to add the $65 to the amount of the damages as first reported does not appear. There certainly was no foundation in the evidence for any such increase. The amount first reported —$393.80—was not justified by the evidence, but, as stated, we are not at liberty to send this case back"for a new trial because of this error, for the reason stated.

There was, however, evidence admitted over the objection and exception of the plaintiffs, which we think was incompetent and prejudicial to the plaintiffs’ case. One of the defendants was permitted to testify to conversations with the deceased concerning the loaning of the money and as to what the deceased did on the day the loan was made at the office of the attorneys who were attending to the loan for the deceased. This evidence was properly objected to, but no exception seems to have been taken to its admission. The attorneys Ditmars & Wyckoff were employed by the deceased to examine the papers and attend to the making of the loan. They concededly retained out of the money loaned the sum of ten dollars. The question litigated was whether the deceased received any part of this sum of ten dollars as a bonus for loaning the money, or whether it was all received and retained by the attorneys for their services in procuring the loan for the defendants. The evidence that the deceased had any part of it was very slight indeed. He gave his check upon a bank, payable to the order of the attorney, George F. Ditmars, for the whole amount. The attorneys drew the money upon the check, and, in the absence of the deceased, paid $140 to the defendants, and retained the balance. The defendants’ theory of the transaction was that a part of this ten dollars went to the deceased, and, to establish this, one of the defendants as a witness testified that he was in the office of the attorney on the day the loan was made; that the deceased was there, but left the office before the loan was consummated, leaving the witness and the attorney alone. The witness was asked the following questions: “Q. You may state what was done while you two were there together alone. (Plaintiffs’ counsel objected as immaterial and incompetent; that George F. Ditmars has not had any connection with this matter whatsoever.) The Court: He can prove what took place with George F. Ditmars there. (Exception.) Q. You may state what was done or said between you and George F. Ditmars while you were in the office alone. (Plaintiffs’ counsel objected as incompetent and immaterial, which objection was overruled by the court, and plaintiff’s counsel duly excepted.) A. He. went out of the office. Q. That is, when you were in the office together. Tell me what happened after he returned to the office, and you were there alone. A. We were in the private room,—private office,—and he came in with the money. This is George F. Ditmars, after he returned with the money, he said, 1 We have to charge you $10 for this loan.’ John Y. Ditmars was absent at that time. I received what was equivalent to $140 in money from George F. Ditmars on that occasion in cash receipts. I handed him the mortgage and the note, and when he was paying me the money, he says, 1 We will have to charge you $10 for this loan.’ I objected to it. I told him I was not able to pay it, and the legal interest was all that I could pay, and I objected to it. I said, 'I have got to use the money to-day, and I have got to have the money, and I will pay it.’ I had to use the money that day. George said, ‘We will have to charge you the $10.’ He said, ‘ We had to pay $7 to get the note discounted, and $3 for my services.’' (.Plaintiff's counsel thereupon moved to strike out the whole of the testimony as to the conversation of George F. Ditmars, which motion was denied by the court and plaintiffs’ counsel duly excepted.)”

While the defendants were entitled to show what was done by the attorney in consummating the loan, they were not entitled to his declaration that he had to pay seven dollars to get the note discounted. This was important evidence, tending to establish that seven dollars of the ten dollars went to the deceased as a bonus for discounting the note. It was a declaration on the part of the attorney as to what had theretofore taken place. While the plaintiffs’ objection to the evidence and the motion to strike out the evidence should have been, perhaps, more specific in pointing out the precise parts of the evidence which he desired stricken out, we are of the opinion that justice requires a new trial because of the admission of this evidence. Plaintiff’s motion for a new trial should be granted, with costs to abide the event of the action. All concur.