text:
    Laura A. Steinhausen, Resp’t, v. The Preferred Mutual Accident Association of New York, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Insurance (Accident)—Mutual—Evidence.
    A beneficiary in a certificate of insurance in the defendant company has no vested interest until the death of the insured; and, therefore, the declarations of the insured made subsequent to the issuing of the certificate are admissible against the beneficiary in an action on such certificate.

      Appeal from a judgment entered in Oneida county on the 22d November, 1889, upon a verdict for plaintiff for §5,169.20, at Oneida circuit, November, 1889, and from an order denying a motion on the minutes for a new trial.
    Action upon a certificate of membership, issued by defendant to Frank J. Steinhausen, July 27, 1886. This provided that: “ The principal sum represented by the payment of three- dollars by each member of the association, as provided in the by-laws (which sum, however, is not to exceed $5,000), is to be paid to Laura A. Steinhausen (his wife), if surviving (in the event of the prior death of said beneficiaries, or any of them, said sum shall be paid as provided in the by-laws), within sixty days after sufficient proof that said member at any time within the continuance of membership shall have sustained bodily injuries, effected through externa], violent and accidental means, within the intent and meaning of the by-laws of said association and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.”
    The certificate also provided for the payment of certain sums to the member in case of bodily injuries, disabling him from the prosecution of his business. It also provided that the benefits under the certificate should not extend to any bodily injury happening directly or indirectly in consequence of disease, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease at any time.
    On the 25th January, 1889, Steinhausen met with an accident, and on 27th January, 1889, he died. The plaintiff claims that the accident was the sole, direct and immediate cause. He was by profession a physician, and it was so stated in the certificate.

      S. M. Lindsley, for app’lt; Van Auken & Pitcher, for resp’t
   Merwin, J.

We are of the opinion that the proofs in this case are sufficient to justify the submission to the jury of the questions whether the injury was the sole, direct and immediate cause of the death, and whether there was any violation of that clause of the certificate giving the defendant the right to examine the person of the member in respect to an injury or cause of death when and so often as may be reasonably required. There are, however, some rulings upon evidence that call for more particular consideration.

Upon the trial, the defendant called as a witness F. W. Klages, who, having testified that within a year of the death of Steinhausen, he (Klages) spoke to him about his physical ailments, about his kidneys, was asked this question : “ What did he tell you, if anything, as to his condition ? ” This was objected to by the plaintiff as incompetent, and objection sustained, the court ruling that “what the deceased said subsequent to the issuing of the policy was inadmissible; that, after the policy was issued, the rights of the beneficiary were settled, and the assured had no authority to_ make any statement or declaration of any kind calculated to impair the contract.” The defendant duly excepted. The defendant offered to show by another witness that upon the morning before the accident the deceased said he was suffering from rheumatism and from kidney difficulty. To this there was the same objection, ruling and exception. Another witness, called by the defendant, having testified that upon a certain occasion he noticed that deceased had a difficulty in breathing, and placed his hand on his breast, was asked the question: “ Did he say anything at the time of his difficult breathing, and at the time he placed his hand on his breast; that is, at the same time, and as he put his hand on his .breast, did he make any statement as to his condition? ” This was objected to as a declaration of the assured after, the policy was issued, and- the objection was sustained, and the defendant excepted.

There seems to. be no doubt as to the materiality of the declarations. They were not objected to on the ground that they were immaterial. The question then is whether the declarations of the member, after the issuing of the certificate, are admissible against the beneficiary.

The defendant is a domestic corporation and within the provision of § 18 of chap. 175 of the Laws of 1883, which provides that: “Membership in any corporation, association or society transacting the business of life or casualty insurance, or both, upon the co-operative or assessment plan, shall give to any member thereof the right at any time, with the consent of such corporation, association or society, to make a change in his payee or payees, beneficiary or beneficiaries without requiring the consent of such payee or beneficiaries.”

The case of Smith v. Nat. Benefit Society of N. Y., 51 Hun, 575; 22 N. Y. State Rep., 852, is claimed by the appellant to be in point. There the plaintiff was a creditor of one Tyler who procured from defendant an insurance on his life, and subsequently under a rule of the defendant the plaintiff was substituted as beneficiary under the policy. The defense was that Tyler obtained the policy with intent to. commit suicide. His declarations after the substitution and up to his death were held to be competent; it being said that under § 18, above referred to, the deceased bad the right, with the consent of the company, to change his beneficiary from time to time without the consent of such payee or beneficiary; that “the plaintiff got no separate standing by the designation under the policy before the date of the death; before that the sole right was in Tyler. The deceased by his designation of plaintiff as beneficiary did not make a case to exclude evidence of his declarations. He stood as owner till he died, and the plaintiff was in no better condition in respect to the policy than if the decedent’s representative had brought the action.”

This case was affirmed by the court of appeals, 33 N. Y. State Rep., 67, but upon another basis. It was, however, said with reference to § 18, above referred to: “ That section attaches the beneficial interest to the membership and permits the member to change the payee or beneficiary of the. insurance without the latter’s consent. Where the right of the payee has no other foundation than the bare intent of the member, revocable at any moment, there can be no vested interest in the named beneficiary any more than in the legatee of a will before it takes effect.”

There are many other cases to the effect that a beneficiary in a certificate like the present has no vested interest. Hellenberg v. Dist. No. One, etc., 94 N. Y., 585; Luhrs v. Sup. Lodge, etc., 27 N. Y. State Rep., 88; Sabin v. Grand Lodge, etc., 6 id., 151; 28 id., 45; Luhrs v. Luhrs, 33 id., 688; Mutual Ben. Soc. v. Burkhart, 110 Ind., 189; Bagley v. Grand Lodge, etc., 131 Ill, 498; Richmond v. Johnson, 28 Minn., 447. In this respect the certificate is different from the ordinary policy of life insurance, where a vested interest passes to the beneficiary and the assured ceases to be a party in interest.

Upon this ground, it was held in Rawls v. Am. Mut. Life Ins. Co., 27 N. Y., 290, that the admissions of the assured after the issuing of the policy were not admissible, and many similar cases are cited by the respondent where. this rule has been followed. The reason is said to be, Swift v. Mass. Life Ins. Co., 63 N. Y., 192, that after the contract of insurance is effected, the subject of insurance has no such relation to the holder of the policy as gives him the power to destroy or affect it by unsworn statements. This rule does not reach this case.

In Grossman v. Sup. Lodge, etc., 25 N. Y. State Rep., 844, the same rule of inadmissibility is asserted with reference to the claim of the plaintiff as the beneficiary in a certificate of membership in the defendant which entitled the member to participate in its relief fund to a certain amount which, at her death, should be paid to the plaintiff, her husband, and the case of Fitch v. Am. Pop. Ins. Co., 59 N. Y., 557, is cited. The Fitch case was upon an ordinary policy. It does not appear whether the statute of 1883 was applicable to the Grossman case. Apparently the plaintiff had no vested right up to the time of the death of the member. This, however, was nor considered.

It is, however, claimed by the plaintiff that under chap. 80 of the Laws of 1840 she had a right to insure the life of her husband and have a vested interest in the policy, and that this applies to the present case. A contrary doctrine was held in Durian v. The Central Verein, etc., 7 Daly, 168. Besides, the act of 1883 does not except the case of wives. We think that the act of 1840 does not help the plaintiff on this question. The insurance there referred to was not intended to cover a case like the present.

We see no escape from the conclusion that the plaintiff had no vested interest until the death of her husband, and that therefore his declarations were admissible the same as if the action was by his representatives. It follows that the judgment must be reversed.

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

Hardih, P. J., and Martih, J., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    James M. Olendorf, Commissioner of Highways of the Town of Afton, Resp’t, v. Julia M. Sullivan et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Highways—Encroachments—Notice.
    Where the order of the commissioner which complies with the statute is annexed to the notice and is referred to in the notice as being annexed, it is to he deemed a part of the notice, so far as its specifications are concerned, and supplies the omissions in the notice itself.

      (Cook v. Covil, 18 Hun, 288, distinguished.)
    Appeal from a judgment of the county court of Chenango county, entered December 4, 1889, affirming a judgment of a justice’s court in a proceeding to compel the removal of an obstruction in a highway.

      W. B. Matteson, for app’lts; Geo. A. Haven, for resp’t.
   Merwin, J.

Whether there was, by dedication or user, a highway as claimed by the plaintiff, was a question of fact, and the evidence is sufficient to sustain the finding of the jury on that subject, within the principles laid down in Speir v. Town of New Utrecht, 121 N. Y., 420; 31 N. Y. State Rep., 414.

By § 103 of title 1, chap. 16 of E. S.; 2 E. S., 8th ed., 1388, as amended by chap. 245 of 1878, it is provided that the commissioner of highways, if in his opinion it be deemed necessary, shall order obstructions or encroachments to be removed so that the highway may be of the breadth originally intended. The order made by the commissioner must be in writing and signed and he must give notice in writing to the occupant or owner to remove such obstructions or encroachments within sixty days. “ Every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment and the place or places where the same shall be.” No fault is found with the order in this case, but it is claimed that the notice was not sufficient. A copy of the order was annexed to the notice and it was referred to in the notice as being annexed. It should therefore be deemed a part of the notice so far as its specifications are concerned. So that then the occcupant by the notice in fact served had all the information the law required to be given. In Cook v. Covil, 18 Hun, 288, it does not appear that a copy of the order was annexed and besides the order itself was defective. The statute does not require the order to be separately served.

The ruling upon the question put to the witness Briggs was perhaps not strictly correct, but at that stage of the case and in view of the prior evidence it cannot be said to have affected the merits. Code § 3063.

The judgment should be affirmed.

Judgment of the county court of Chenango county affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    The People, Resp’ts, v. John H. Sweeney, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Criminal law—Identity.
    On the trial of an indictment for grand larceny in obtaining money under false pretenses, the complainant and three witnesses identified defendant as one of the parties engaged in the transaction and there was evidence that certain signatures made by one of the parties thereto were in his handwriting. Defendant and his wife testified that he was at a distant place at the time, and this was corroborated by testimony of witnesses taken on commission. Held, that the verdict against defendant could not be said to be against the weight of evidence.
    3. Same—Good character.
    Good character is not a defense; but a defendant is entitled to have the evidence on that subject considered in determining primarily his guilt or innocence. If, after such consideration, the jury conclude that he is guilty, then his good character though established does not clear him.
    3. Same—Witness—Evidence.
    A Chicago policeman, who testified to matters in connection with defendant’s arrest, was cross-examined in regard to his previous official history, and on re-direct was asked if he “was one of the officers that was in the Haymarket riot in Chicago blown up by the bomb shells” and was allowed to answer “ I was one of the men who were in that riot.” Held, that the evidence, while immaterial, was not prejudicial to defendant.
    Appeal from a judgment of conviction in the Jefferson county court of sessions and from an order of that court denying a motion on the minutes for a new trial.
    In May, 1890, the defendant and David McCord alias James Bradley were jointly indicted for the crime of grand larceny in the first degree. It was alleged that on May 2, 1888, the defendant and McCord with another party, by false and fraudulent pretenses, obtained from John B. Chapman, then of the town of Adams in Jefferson county, the sum of $7,040 ; that among other things it was represented that two bars of metal weighing about forty-five pounds each and found the day before on the farm of Chapman were gold, when in fact they were worthless.
    In June, 1890, the case was tried and the defendant convicted of the crime charged.

      Thos. F. Kearns and W. F. Porter, for app’lt; Frank H. Peck, dist. att’y, for resp’ts.
   Merwin, J.

At the trial the main contention was over the question whether the defendant was one of the parties engaged in the commission of the fraud upon Chapman. It is here claimed that the verdict, in effect finding that the defendant was one of the parties, is against the evidence, and that there is no reliable evidence to justify a verdict of guilt.

The evidence upon this subject is conflicting. The complainant and three other witnesses identified the defendant with more or less certainty, and there was evidence that certain signatures made by one of the parties in the transaction were in the handwriting of the defendant. There were also some circumstances that were claimed to- be corroborative. On the part of the,defendant, he and his wife both testified to his being at the time at his residence in Clyde, Ohio, and this was corroborated to some extent by the testimony of several witnesses taken by commission.

A careful consideration of all the evidence leads us to the conclusion that the evidence is sufficient to sustain the verdict, and that we cannot properly say that the verdict is against the weight of evidence.

After the court had given its charge to the jury, and after the counsel of the defendant had made divers requests which had been answered by the court, the district attorney requested the court to charge “ that if the crime charged in the indictment has been conclusively proven to the satisfaction of the jury beyond a reasonable doubt, that in that case any good character of the defense does not avail him.” The court so charged and the defendant excepted. This is claimed to be error.

The court had previously charged that, in case of a reasonable doubt whether the guilt of the defendant was satisfactorily shown, he was entitled to an acquittal, and that this doubt must be determined upon all the evidence in the case. The court had also, at the request of the defendant’s counsel, specifically charged in substance that the evidence as to the good character of the defendant should be considered by the jury in determining the question of reasonable doubt, and might actually outweigh evidence which might otherwise appear conclusive.

These propositions were not withdrawn by the charge complained of. Taking the whole together, as it should be, the jury were in effect told that if, upon all the evidence in the case, including that as to the defendant’s character, the crime charged had been conclusively proved to the satisfaction of the jury beyond a reasonable doubt, then any good character of the defendant would not avail him. As so construed there was no error.

There was no exclusion from the jury of the evidence as to good character in determining in the first instance the guilt or innocence of the defendant. The cases cited by the defendant, People v. Wileman, 44 Hun, 187; 8 N. Y. State Rep., 300, and cases there referred to, would, therefore, not apply. Good character is not a defense, but a defendant is entitled to have the evidence on that subject considered in determining primarily his guilt or innocence. If, after such consideration, the jury conclude that the defendant is guilty, then his good character, though established, does not clear him. Such, in substance, was the rule laid down by the trial court in this case.

Charles Nordrum, a police officer from Chicago, was called by the People as a witness in regard to certain matters in connection with the arrest of the defendant at Chicago.

He was examined and cross-examined, and then, upon his redirect examination, he was asked the question : “Are you one of the officers that was in the Haymarket riot in Chicago, blown up by the bomb shells ?” This was objected to by the defendant’s counsel as incompetent and immaterial, and the objection was overruled and exception taken. The answer was: “ I was one of the men who were in that riot.” This ruling is claimed to be erroneo as. It will be observed that the answer is not fully responsive. The witness had been cross-examined in regard to his previous official history, and a reasonable latitude upon the redirect by way of explanation was allowable. It may be that, strictly speaking, the evidence was irrimaterial, but in the form the answer was given no possible injury would be occasioned to the defendant.

We have examined the other exceptions presented on the part of the defendant, and find nothing that calls for a reversal. It is not apparent that any substantial right of the defendant is affected. Code Crim. Pro., § 542.

It follows that the judgment and order should be affirmed.

Judgment and order of the court of sessions of Jefferson county affirmed, and the clerk directed to enter judgment and remit certified copy thereof, with the return and decision of this court, to the court of sessions of Jefferson county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Hardin, P. J., and Martin, J., concur.


author: Freedman, J.

text:
    Charles A. Seddon et al., App’lts, v. Robert Donald, Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Appeal—When questions op pact not be viewable.
    Where the appellant did not move for the direction of a verdict, or except to any portion of the charge, hut moved generally for a new trial without stating any grounds therefor, and the case does not state that it contains all the evidence, no questions of fact can he reviewed on the appeal.
    Appeal from a judgment entered Upon a verdict rendered in favor of defendant, and also from an order denying plaintiffs’ motion for a new trial.
    The action is brought by plaintiffs to recover the sum of $2,155.26, alleged to be due upon a contract of employment, by which they claim the defendant employed them as public fire insurance adjusters, and agreed to pay them five per cent, commissions upon the amount of loss received from the insurance companies.

      Stalllcnecht & Handel, for app’lts; James M. Hunt, for resp’t
   Freedman, J.

The plaintiffs, at the close of the case, made no motion for the direction of a verdict in their favor. The issues were submitted to the jury under a charge to which no exception was taken. The jury having found for the defendant, the plaintiffs moved generally for a new trial, but stated no ground for their motion. Moreover there is no certificate that the case contains all the evidence. Under these circumstances no question of fact can be reviewed.

The exceptions to the admission and exclusion of evidence have been examined, but none of them constitutes sufficient ground for reversal.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., concurs.


author: Per Curiam.

text:
    Hugh Donnelly, App’lt, v. George B. Morris, Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Injunction—Restraint of action in foreign state.
    Plaintiff was sued by defendant in another state upon a promissory-note, although both are residents of this state. In this action ior a partnership accounting plaintiff asks for an injunction to restrain the action on the note on the ground that defendant was to apply moneys received by him on partnership account to the payment thereof and that the note-has equitably been so paid. Meld, no ground for equitable interference.
    Appeal from an order refusing an injunction to restrain defendant from proceeding in an action brought by him in Massachusetts pending an action in this court for an accounting.
    ■ Both parties reside in New York, but the defendant began the. Massachusetts action against the plaintiff while he was temporarily on a visit to the latter state.
    The ground of that action is a promissory note made by the plaintiff and delivered to defendant for $1,342, which was immediately indorsed and delivered to one Annie C. Wood, as-trustee, the money loaned upon the note belonging • in fact to-Miss Wood.
    The plaintiff claims that the note was fully paid, long before the Massachusetts action was begun, by moneys received by the defendant upon partnership account

      Leroy S. Gove, for app’lt; George S. Bliss, for resp’t.
   Per Curiam.

The plaintiff did not establish any equity upon the motion. The supposed equity was founded upon the application by defendant to the payment of the note of partnership assets, or the defendant’s breach of his agreement to apply those assets to the. payment of the note. Either contingency does not create an equity. All of it is that it is inconvenient to ascertain the facts and to go to Massachusetts to defend the action there, This is not ground of equitable interference.

Order affirmed, with ten dollars costs.

Sedgwick, Oh. J., Freedman and Ingraham, JJ., concur.


text:
    Clark R. Griggs, App’lt, v. Melville C. Day et al., Ex’rs, Resp’ts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Accounting—New trial.
    Plaintiff, a contractor, assigned to defendant as collateral for advances certain bonds and notes received in payment for the work. Some of these defendant exchanged for second mortgage bonds of the company, for which this court held, in an action for an accounting, that plaintiff was entitled to credit, and ordered a new trial unless defendants consented to reduce the judgment by that amount. It now being claimed that defendants were entitled to a corresponding credit for the notes not paid by said bonds, a new trial is unconditionally ordered.
    Settlement of order. For opinion on the hearing, see 34 N. Y. State Rep., 155.

      Robert G. Lngersoll, for app’lt; MelviRe 0. Bay, for resp’ts.
   Freedman, J.

The court, for the reasons stated by the chief judge in his opinion, came to the conclusion that the judgment should be reversed and a new trial had. At the time of the announcement of the decision it was thought, however, that perhaps a new trial could be obviated, if the defendants were to give a stipulation consenting to a reduction of the amount of the judgment recovered by them against the plaintiff in accordance with the principles laid down in the opinion, and a suggestion was made to that effect. Having now heal’d counsel on the settlement of the order to be entered, and it being conceded by both sides that .under the said opinion the plaintiff is entitled to a credit of $1,736,600, with interest from May 1, 1883, to the date of the referee’s report, but the respondent being unwilling to consent to such determination unless they receive a corresponding credit of $325,262.66 for the notes not paid by second mortgage bonds, and this new difference between the parties being of such a nature as to make it proper, in view of the complicated state of the accounts, that they should have a further hearing concerning it upon a new trial, I am of the opinion that the order to be entered should provide for the unconditional reversal of the judgment upon the facts as well as the law and for a new trial in accordance with the principles laid down in the opinion.

Sedgwick, Oh. J., and Ingraham, J., concur.


author: Per Curiam

text:
    Francois P. Faivre, Pl’ff, v. The Union Dime Savings Institution, Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Interpleader—Banks.
    In an action to recover a fund in a bank, other claimants were allowed to be impleaded and the bank was ordered discharged on opening a new account to the credit of the action. Beld, that the latter provision was improper and should be stricken out and the bank directed to deposit the fund in court.
    Appeal by Louis Grosclaude and others from an order of interpleader and an order discharging the Union Dime Savings Institution from liability upon the original deposit upon its opening a new account to the credit of this action and upon delivering the pass book to the clerk of the court.
    Appellants contend, among other things, that the court had no power to make the order providing that the name of the defendant be wholly stricken out as a party hereto and yet be allowed to retain the money, as the act under which it moves does not authorize the same and no order but strictly in conformity with the terms of said act could be made; that no order could be made compelling these appellants to give up the bank book as required by ■said order, as there is a dispute as to the entries therein, and claimants will need the same on the trial to prove their case.

      H. A. Fiera, for app’lts; William H. Arnoux, for resp’t.
   Per Curiam

The orders, when modified as hereinafter directed, may be sustained under the general banking act of the state of New York. Laws 1882, ch. 409. (See ch. 10 of said act.) The provision directing the Union Dime Savings Tnst.it.ntion to open a new account as a deposit to the credit of this action under its usual by-laws and regulations, etc., should be stricken out and in place thereof the said savings institution should be required to deposit the fund in court according to the usual practice in such cases. As thus modified the orders should be. affirmed, without costs to either party on this appeal.

Sedgwick, Oh. J., and Freedman, J., concur.


text:
    Charles J. Quimby, App’lt, v. Edmund H. Carhart et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Appeal—Questions not raised on trial.
    Where the plaintiff, on motion for new trial after the rendition of a verdict against him, advanced for the first time the claim that he was entitled to certain discounts and that he had not received the same, the appellate court will not, in the absence of evidence that he did not receive them, indulge, for the purpose of reversing the judgment, in the presumption that he did not receive such discounts.
    Appeal from judgment entered in favor of the defendant, upon the verdict of a jury and from order denying plaintiff’s motion for a new trial.
    Action to recover $2,523.70 for an alleged violation of an agreement "by defendants to pay a note made by plaintiff.

      William P. Fiero, for app’lt: Ira D. Warren, for resp’ts.
   Freedman, J.

I am of the opinion that the issues have been retried in substantial compliance with the rule laid down by this court on the former appeal. See 57 N. Y. Supr. Ct., 452; 29 N. Y. State Rep., 279.

The instruction given by the trial judge to the jury, that by the pleadings it stood admitted that the transactions between the plaintiff and the defendants amounted to a purchase of the goods by the plaintiff, must be construed in connection with the other parts of the charge and the particular passages in the pleadings-referred to, and when so construed it applied only to the transactions prior to March 5, 1884. Whether on that day the plaintiff did or did not notify the defendants' not to send any more goods to Matthiesen & Doolittle under the previously existing arrangement, remained still a question for the jury, and it was submitted to them. "

The plaintiff did not in his complaint or in the course of the-trial advance the claim which, on the motion for a new trial, he for the first time advanced, that he is entitled to ten per cent, discount on certain purchases, that he has not received the same and that the jury should have given him a verdict for at least that amount. As no such claim or suggestion was made before the rendition of the verdict, the court will not, in the absence of any evidence that he did not receive it, indulge, for the purpose of reversing the judgment, in the presumption that he did not receive it.

None of the exceptions taken "by the appellant seems to be tenable and substantial justice appears to have been done.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concur.


author: Per Curiam. Freedman, J.

text:
    George H. Moore et al., Ex’rs, Resp’ts, v. The New York Elevated R. R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Railroads—Elevated—Evidence .
    In an action to restrain the operation of an elevated railroad and for damages, it is not prejudicial error to allow a witness to testify directly to the amount of depreciation in the rental value of plaintiff’s premises, where the witness also gives the rental value before and after the railroad was built, the difference being the amount of depreciation testified to.
    Appeal by defendants from judgment entered upon verdict against them upon and from denying their motion for a new trial made upon the judge’s minutes.

      Brainard Tolies and Julian T. Davies, for app’lts; A. Edward Woodruff, for resp’ts.
   Per Curiam.

The learned judge was right in holding that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in the present action.

A witness, Martine, was allowed to testify to the amount of depreciation in the rental value of plaintiff’s property due to the elevated railroad. This was objected -to by defendants on the ground that the witness was asked to give an opinion as to what the jury was to decide. The counsel objecting avowed that he did not object to an opinion being given as to rental value before and after the elevated railroad was built in front of the premises. Although the witness directly spoke as to the amount of depreciation, the answer was not injurious, for at the same time he gave the value before and after the railroad was built, the difference being the amount of depreciation he testified to.

The defendants asked that the complaint be dismissed on the ground that the plaintiff was never in possession of the premises. This was not correct, because if not in occupation during the terms of leases given, they were in occupation between those terms. No questions as to damages were raised upon this basis.

It is not necessary to determine whether the recovery of interest was lawful. No exception that would raise such a question was taken.

Judgment and order affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concur.

Freedman, J.

I concur, but wish to add that under the decision of Hamilton v. Manhattan Railway Co., 30 N. Y. State Rep., 17, the leases could make no difference on the question of liability.


text:
    Howard N. Bailey, Resp’t, v. John Claflin et al., Appl’ts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Replevin—Fraudulent representations—Bona fide purchaser.
    In an ac ion to replevin goods alleged to have been purchased through fraudulent repersentations the referee found, on sufficient evidence, that the defendants Claflin & Co. were not innocent, bona fide purchasers thereof from the firm to which plaintiff’s assignors sold the goods, hut obtained possession with full knowledge of the insolvency of the firm and with intent to to aid in defrauding its creditors. Defendants gave no evidence. Held,, that a judgment in plaintiff's favor would not he disturbed.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff against the defendants for the possession of certain personal property, or for the sum of $685.61, the value thereof, in case a delivery cannot be had, and the costs of said action.

      S. F. Fhedand, for app’lts ; Abram Fling, for resp’t.
   Per Curiam.

This case appears to have been tried on the same testimony upon which the case of Eckhardt against the same defendant was tried, and the report of the referee and the judgment entered thereon were substantially the same in both cases. That case was appealed to this court and affirmed.

. As the same questions were presented in both' cases it follows that the judgment appealed from should be affirmed, with, costs, on the opinion in Eckhardt v. Epstein, 33 N. Y. State Rep., 806.

Sedgwick, Ch. J., Freedman and Ingraham, JJ., concur.


text:
    Sarah J. Pirsson et al., Resp’ts, v. Oliver M. Arkenburgh, App’lt.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Vendor and Purchaser—Moneys deposited to secure payment of ASSESSMENTS—EVIDENCE.
    On the execution of a contract of sale of real property to defendant, plaintiff’s assignor deposited a sum of money with a trust company to secure payment of an assessment which he was trying to reduce, and entered into a written agreement directing the payment of such sum to defendant if he paid the assessment, after a certain time. The assessment was reduced, and defendant paid the reduced amount. In an action for the balance of the deposit, Held, that evidence was inadmissible to add to or vary the terms of the written contract; that the contract was one of indemnity only, and that a direction of a verdict for plaintiff was proper.
    Appeal from judgment entered in favor of the plaintiff upon a verdict directed at the trial, and from order denying defendants’ motion for a new trial.

      Robert F. Little, for app’lt; Jno. Alex. Beall, for resp’ts.
   Freedman, J.

The contract between the parties, by which provision was made for the payment or cancellation of the assessment, was deliberately reduced to writing, and duly executed. All prior conversations and negotiations then became merged in the written contract, and consequently the trial judge correctly held that parol evidence was inadmissible to add to or vary the terms of the written contract. The construction to be placed upon the contract, as evidenced by four written instruments, has been determined upon a former appeal. 57 N. Y. Super. Ct., 474; 29 N. Y. State Rep., 529. It was there held that the contract between the parties was one of indemnity, and not of forfeiture. The direction of the verdict now complained of was in accordance with that decision.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concur.


text:
    Thomas Adams & Co. (Limited), Resp’ts, v. Saly I. Mayer et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Sale—Acceptance .
    Plaintiffs, in pursuance of a contract, shipped certain goods to defendants, which were warehoused by them and so retained for three years, although they notified plaintiffs that they could not use them, but would accept them at a less price than that named in the contract. Held, following former opinion in 56 N. T. Supr. Ct., 572; 23N. Y. State Rep., 193, that a verdict in favor of plaintiffs for the purchase price was not against the weight of evidence.
    Appeal from judgment entered in favor of the plaintiffs upon the verdict of a j ury, and from order denying defendants’ motion for a new trial.
    Action to recover the sum of $735.14 for goods claimed to have been sold and delivered to defendants pursuant to the terms of a contract.

      David Leventritt, for app’lts; W. W. MacFarland, for resp’ts.
   Per Curiam.

The issues in this case have been retried in conformity with the decision of this court upon the former appeal as reported in 56 N. Y. Supr. Ct., 572; 23 N. Y. State Rep., 198.

Upon a review of the case as now presented none of the exceptions taken constitutes, when all the circumstances are considered, sufficient ground for reversal, nor can it be held that the verdict is against the weight of the evidence.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concur.


text:
    Blake & Johnson, Resp’ts, v. Stephen H. Krom, App’lt.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Trial—Direction of verdict.
    . Where the only defense in an action is a counterclaim which the evidence is insufficient to substantiate, a direction of a verdict is proper.
    Appeal by defendant from a judgment for $1,532.71, entered upon a verdict directed by the court, and from an order denying defendant’s motion for a new trial.
    The answer set up as a counterclaim that the defendant, owning certain patterns, drawings and gauges, necessary for the manufacture of mining machinery of which he was the inventor, intrusted the same to plaintiff, a manufacturing corporation, to be used by it solely for the manufacture of such machinery in the course of defendant’s business and solely upon his orders; that plaintiff received said patterns for such use alone and was bound by agreement, both express and implied, not to use the same for any other purpose than that for which it received them, and that in violation of such agreement and the defendant’s rights in his own patterns the plaintiff made and sold such machinery without defendant’s knowledge or sanction, and to his damage in amount greater than plaintiff’s claim.
    It is claimed by appellant that the contract under which the defendant’s patterns, etc., came into plaintiff’s hands forbade their use without consent of the defendant; that the contract forbidding any use of the patterns, it was only necessary for the defendant, in order to reach the jury, to give proof reasonably tending to show that plaintiff did dispose of machinery made under the patterns without defendant’s consent, and that damage to defendant resulted, and that the court erred in instructing the jury that there was no evidence to support the counterclaim.

      Herbert T. Ketcham,, for app’lt; Michael H Oardozo, for resp’ts.
   Per Curiam.

The evidence given by the defendant was insufficient to substantiate the counterclaim set up in the answer, and as the claim of the plaintiff was admitted to the extent of the amount for which the verdict was directed, the case was correctly disposed of.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., Freedman and Ingraham, JJ., concur.


text:
    Charles B. DeKlyn, App’lt, v. The Silver Lake Ice Co., Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Contract—Rescission.
    Where a contract for the sale and delivery of goods has been rescinded, proof of subsequent deliveries cannot have the effect of reinstating it.
    Appeal from judgment entered upon a dismissal of the complaint at the trial.

      H •Morrison, for app’lt; Wallace Macfarlane, for resp’t.
   Freedman, J.

The evidence given at the trial established that the contract upon was brought ed by the letters of March 5th and March 15th, and consequently no action can be maintained upon it by either party. The claim of the plaintiff that the letter of March 5th should be treated as a mere brutum fulmen, cannot be sustained. There having been a rescission, proof of deliveries of ice subsequent to March 17th could not have the effect of reinstating the contract. Such deliveries may have been made at market rates as proposed by the letter of March 5th, but it was not necessary to determine the precise point. The letters excluded are not printed in the case and consequently it cannot be held that their exclusion on the ground of immateriality constituted error. Upon the whole case no sufficient reason appears for disturbing the judgment The judgment should be affirmed, with costs.

Sedgwick, Oh. J., concurs; Freedman, J., concurs in the result.


text:
    Bernhard Metz, Resp’t, v. Edward Luckemeyer et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    1. Services—Construction of contract for.
    Plaintiff was employed by defendants to procure the placing with them of the accounts of a manufacturing firm, which he procured to be done, the goods to be sold in defendants’ name, for which they were to receive a certain commission. Thereafter a new arrangement was made by which defendants'were relieved from the obligation to sell and received a smaller commission. In an action to recover for plaintiff’s services, Held, that the question whether the accounts under the latter arrangement were such as were within the contemplation of the parties at the time of the employment was one for the jury to determine.
    2. Same—Charge.
    Although the testimony of the defendant showed that there was to be no compensation unless the taking of the accounts should be of value to ' them, yet where the preponderance of the evidence is that the accounts did prove of value to them it is not error for the court to charge that defendants were bound to pay the plaintiff something.
    3. Same.
    The court properly refused to charge that plaintiff’s compensation depended on the actual labor spent by him in the performance of the services, as the jury in determining their value were bound to consider the value to the employers of the benefits received by them.
    4. Evidence—Offer.
    An offer of documentary evidence, although only for a limited purpose, . must be absolute.
    6. Same.
    A question as to whether defendants were dissatisfied with a statement made by plaintiff is improper, as it calls for mental condition.
    Appeal by defendants from judgment entered against them on verdict of jury, and from order denying their motion for anew trial, made upon the judge’s minutes.

      G liarles Wehle, for app’lts; Ilorwitz & Herschfield, for resp’t.
   Per Curiam.

The action was to recover compensation for services rendered" by the plaintiff to defendants, were merchants, doing a "business in the nature of the business of commission merchants, in procuring to be placed with the defendants the accounts, as they were called, of a manufacturing firm. It was explained on the trial that placing an account means that a house ships all the goods which they manufacture in a certain line. The commission house obtains the selling and does the shipping and guaranteeing, and other matters connected with the management of the goods, and for this the manufacturer pays a commission or percentage to the commission house.

The evidence showed, as the jury might find, that at defendants’ request the plaintiff procured the account of a manufacturing firm to be placed with the defendants. Immediately, the manufacturing firm employed the plaintiff to assist in selling these goods, the “selling being done in the name of the defendants. At the outset the defendants had arranged that they should receive a commission of five per cent. After several months another arrangement was made, by which the defendants were relieved from obligation»to sell, the manufacturing firm agreeing to do that at their own expense, and the defendants were then to receive only four per cent.

On the trial, the defendants took the position that the plaintiff, as matter of law, could not recover for accounts placed with the defendants after the second arrangement. This was not correct, for it was a matter for the jury to find whether these accounts, as well as the accounts under the first arrangement, were such kind of accounts as was within the contemplation of the parties at the time of the employment

The court did not err in charging that, taking the testimony of Mr. Shefer as to the employment, the defendants became bound to pay the plaintiff something for the rendition of the services that he rendered to them. - Assuming that the. mere words of Shefer as to the employment might have the meaning that there was to be no compensation if the taking of the accounts should not be of value to the defendants, yet the preponderance of evidence was that the accounts did prove to be valuable. And the court had the right in charging to consider the correction of the testimony.

There was no exception to the charge that if there be a custom to pay the broker a commission of one per cent then the plaintiff was entitled to such a commission.

The learned counsel for defendants asked the court to charge, that if the plaintiff were entitled to a compensation as distinguished from a commission, the compensation depended not upon the quantity of the goods sold, but upon the actual labor spent by the plaintiff in the performance of the services. The court properly refused to charge this, because the jury in determining the value of the services were bound to consider the value to the defendants of the benefits received by them.

There was an original complaint in this action which was after-wards amended. On the trial the counsel for defendants offered in evidence the original complaint, for the purpose of showing “ the various claims made in this action,” but the counsel said he did not offer the complaint in evidence absolutely. It was excluded. Formally the ruling was right, for if the parties had a right to offer the complaint for a limited purpose, still the offer itself must be absolute. It could not be limited or conditional. But an examination fails to show that the single claim made in the original complaint varied from the single claim made in the amended complaint. The latter was fuller in its statement, but a jury could not have drawn from the difference of the two complaints an inference unfavorable to plaintiff.

The question to plaintiff of whether one of the manufacturing firm was not dissatisfied with the statement of plaintiff was ex-eluded properly. It simply called for testimony as to mental condition.

One of the manufacturing firm, when a witness, was asked whether the plaintiff stated to him that he was entitled to commission. There was nothing in the case that made it proper that the plaintiff should make such a statement, or probable that he would make it, after he had made his arrangement with the defendants, so that an omission to make it would affect an estimation of the probability of the arrangement having been made.

The other questions argued by the counsel for defendants have been examined. None of them calls for a reversal of the judgment.

Judgment and order appealed from affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Van Wyck, J.

text:
    Ellen McLaughlin, App’lt, v. The Atlantic Avenue R. R. Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed January 26, 1891.)

    Negligence—Chabge.
    In an action to recover damages for injuries, the plaintiff alone testified to the occurrences, and stated that she signalled the conductor to stop; that the car came to a dead stop, and that as she was stepping from the car it suddenly started and threw her off. The court, at defendant’s request, charged that if, after the car started, she could have retained her position, hut, instead of doing so, elected to step from the car so started up, she could not recover. Held, that she was not prejudiced by this charge, as there was no evidence that she could have retained her position, and stepped off the moving car, and she did not intimate to the trial court that there was no testimony to which the request could he applied.
    Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for a new trial.
    Action to recover damages for personal injuries.
    The exception referred to in the opinion is based on the following request to charge and reply:
    Mr. Ward: I ask your honor to charge: The plaintiff had a right to assume the driver and conductor would give her reasonable time to alight.
    The Court: I think I have already charged that it was the duty of the conductor to give her reasonable time to alight from the car. It was her duty not to get off until it stopped, and it was the duty of the conductor to give her a reasonable time to alight.
    Mr. Boardman objects to this, if the court says the plaintiff had a right to assume.
    The Court: I charge that she was bound to take the precautions of a reasonably prudent person.
    Plaintiff excepts to the court’s charging the requests of defendant’s counsel, and also to the modification of the request presented by plaintiff, as to plaintiff’s right to assume.

      G. Arnold Moses, for app’lt; Tracy, McFarland, Boardman & Platt, for resp’t.
   Van Wyck, J.

This action was brought to recover damages for personal injuries alleged to have been inflicted upon plaintiff through the negligence of defendant. The jury rendered a verdict in favor of defendant, and from the judgment entered thereupon, and from the order denying a new trial, the plaintiff has appealed to this coui't.

The plaintiff alone testifies to the alleged occurrences which she insists establish the negligence of defendant. The conductor or driver, or both, of each car that passed the alleged place of accident within a half hour of the alleged time thereof, denied the-occurrences sworn to by plaintiff. We have carefully read and weighed the testimony, and do not feel called upon or disposed to disturb the verdict as against the weight of evidence.

The exception to the exclusion of testimony offered for the purpose of enhancing the damages was disposed of by the verdict of the jury, that defendant was not liable for any of her injuries be they great or small. We do not think error can be predicated upon the exception found at folio 215,216; because there was no actual refusal to charge the reqúest of plaintiff, but, on the contrary, it was really charged; and because the court did not charge the so-called request of defendant, even if this interjection of defendant can be construed to be a request, which we do not assent to.

This leaves only one other exception for our consideration. Let us see if the request objected to was a sound proposition of law applied to the circumstances of this case, or if not sound in abstract, did it tend to injure the plaintiff before the jury? The plaintiff alone testified to the alleged occurrences from which the jury was asked to infer negligence on the part of defendant. The most critical and cautious examination of her testimony discloses a single story of the accident, without contradiction, direct or inferential. She says while a passenger on defendant’s car, at the corner of Adams and Tillary streets, she signaled the conductor to stop, and that it came to a dead stop,” when she placed her right foot on the step leaving her left on the platform, and then she was just removing her left foot from the platform to make the next step to the ground, when the car started suddenly and threw her off. This story she sticks to, without variance.

The request complained of charged that if after the car started she could have retained her position on it, but instead of doing so she elected to step from the car so started up, then she could not recover. We do not think this an error when considered in connection with her testimony, for it would negative her story upon which her sole reliance to recover was based. We do not think it hurt her with the jury for there was not a scintilla of evidence that she could have retained her position on the car after it started and that instead of doing so she stepped off the moving car. The plaintiff did not intimate to the trial court that there was no testimony to which the request could be applied. We, for the above reasons, think the judgment and order should be affirmed, with costs.

Osborne, J., concurs.


author: Osborne, J.

text:
    James Medler, Resp’t, v. The Atlantic Avenue R. R. Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed January 26, 1891.)

    1. Negligence—Street railroads.
    Plaintiff while riding on one of defendant’s cars twice notified the driver to stop, and when the horses came to a slow walk stepped upon the side step of the car, when, as he testifies, the driver released the brake and struck the horse, thereby causing a sudden jerk which threw plaintiff off the car. He was corroborated by another passenger, but the driver denied releasing the brake or striking the horse. Feld, that the case was a proper one for the jury, and that their verdict would not be disturbed.
    2. Same—Charge.
    The court refused to charge at defendant’s request that it was the right and duty of "the driver of the car to keep it in motion while it was passing the space between the cross-walks at the intersecting street, and if it was necessary to urge the horses forward and let off the brake in order to do so the driver could not be held negligent for doing those things. Feld, no error; as the request was faulty in not limiting the driver to the use of, at least, ordinary care, under the circumstances, in doing so.
    3. Same.
    Nor did the court err in refusing to charge that if plaintiff wilfully violated the rule and rode on the step while the car was in motion, and was injured in consequence, he could not recover, as there was no evidence of any wilful violation of the rule, and to have charged as requested would have been equivalent to charging that plaintiff was guilty of negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict and from order denying motion for a new trial.

      Thomas F. Pearsall, for resp’t; Tracy, McFarland, Boardman & Plait, for app’lt.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries sustained by him through the alleged negligence of the driver of one of defendant’s cars. It appears from the testimony of the plaintiff, a blacksmith by trade, that, ■ on the afternoon of Saturday, August 10, 1890, at the close of his day’s work, he took passage on an open car of the defendant, sitting on the first seat back of the driver, to go to his home; the place where he intended to alight was at the corner of Congress and Hicks ■streets. Plaintiff testified: “When I came within about two houses of the corner of Congress street, on Hicks street, I said to the driver to stop; he was talking to a man who was standing alongside of him on his right hand side. He did not stop then, took no notice to me, and I spoke quick and loud, and told him to stop. He had his hand on the brake and turned around quick, and the horses came to a slow walk, and I got off the seat on to the .step, and as I was just standing on the step he hit the horse on the right hand side with the end of the lines, and he made a plunge ahead and pitched me out.” Plaintiff further testified that when he stood on the side step, he had hold of the hand rail; that the ■effect of the horses plunging ahead was to give the car a sudden jerk, which broke his hold and threw him off on the street, about midway between the two crosswalks of Congress street, his left hip striking the ground first. From the injuries sustained by his fall plaintiff was confined to the hospital for eleven weeks, and has since been compelled to go about on crutches, and from the medical testimony it appears that the injuries to plaintiff’s hip are of such a character as to cause a permanent shortening of the limb. A witness on the part of the plaintiff also testified that he saw the driver strike the horse on the right hand side and let go the brake, and the horses gave the car a jerk and plaintiff fell off, and another witness testified that “just about as the horses slowed up to a walk, and had just about crossed the first crosswalk, the driver raised his left hand with the lines and let go of the brake.”

Plaintiff had a verdict, and from the judgment entered thereon, and from an order denying a motion for a new trial, defendant now appeals.

It is claimed by the learned counsel for the appellant that the evidence was insufficient to establish any negligence on the part of the defendant, that the driver had a right to release the brake and urge the horses forward to prevent them from stopping between the crosswalks in violation of the city ordinances, and he cites the case of Hayes v. The Forty-second Street Railroad, 97 N. Y., 259, as authority for his contention. In that case, however, the circumstances were entirely different from the one now before us; there, the plaintiff was riding upon the front platform of the car, although there were vacant seats inside; he stepped down on the front step to give some passengers an opportunity to enter, and, as he was in the act of stepping up again, the car in starting “gave a sudden movement,” causing him to fall; there was no evidence that the driver started his horses in any unusual or negligent manner. The court of appeals simply held that the fact “that the car gave a sudden movement’ is entirely consistent with the supposition that having been still, the horses were started in a careful and prudent manner.” We think the circumstances in the case at bar were so entirely dissimilar that the case cited does not support the contention of defendant’s counsel. Here plaintiff was riding on the car; he notified the driver twice to stop, so that he might alight; the horses came to a walk; he stepped down on the side step, holding on and waiting for the car to come to a stop before he alighted, when suddenly, and without warning, as plaintiff testifies, the driver releases the brake, strikes his horse, and the horses plunge forward, thereby giving the car a jerk so violent as to break plaintiff’s hold and throw him on to the street on his hip. True, the driver denied that he let off the brake or struck his horse. That issue, however, the jury have decided in plaintiff’s favor, the learned trial judge having charged the jury that, if they believed the statement of plaintiff and his witnesses, it was for them “ to determine whether the driver, under those circumstances, exercised ordinary care.” Clearly, the contest of testimony made the case one proper to submit to a jury, Nolan v. B. C. & N. R. R., 87 N. Y., 63, and we can see no reason for disturbing their verdict.

Defendant’s counsel requested the court, inter alia, to charge as follows:

“ It was the right and duty of the driver of the car to keep the car in motion while it was passing the space between the crosswalks on Congress street, and if it was necessary to urge the horses forward and let off the brake in order to do so, the driver could not be held negligent for doing those things.” This request was refused and the refusal excepted to. We do not think the exception was well taken, for, while the right and duty of the driver was properly stated, the request was faulty in not limiting the driver to the use of, at least, ordinary care, under the circumstances, in urging his horses forward and letting off the brakes. The learned trial judge correctly laid down the law, after refusing the request, in stating as follows: “ I will state this, that there is an ordinance which is obligatory upon drivers of horse cars, compelling them not to stop at what is called the lower corner, the near corner, but to cross over, so as not to obstruct the street pending the stoppage, and that it was his duty not to stop at that point, at a point before they crossed, but that, in exercising that duty and that right, it was his duty, as the representative of this corporation, to use ordinary care, so as to save the passengers free from harm and injury."

Defendant’s counsel further excepted to the refusal of the court to charge as follows: “And if the plaintiff wilfully violated this rule (referring to a rule prohibiting passengers, from riding on the step when the car is in motion), and rode on the step while the car was in motion, and was injured in consequence, he cannot recover.” This exception cannot be sustained. In the first place, there was no evidence of any wilful violation of the rule. To have charged as requested would have been equivalent to charging that the plaintiff was guilty of negligence. In a similar case, Nichols v. Sixth Ave. R. R. Co., 38 N. Y., 131, the court of appeals have held that negligence cannot fairly be imputed to a passenger. The learned trial judge, after refusing to charge as requested, added as follows: “ I will charge this in explanation of that. It is for you to take into consideration the fact that he was upon the step when the car was in the condition that you find it was at that time, in determining whether he was guilty of contributory negligence or not," We think that this statement of the law was quite as favorable to the defendant as the authorities would approve or warrant.

FTor do we think that the exception to the refusal to charge at folio 268 was well taken; all that the defendant had a right to ask on the point contained therein was fully covered by the requests which were charged in folio 269.

We are accordingly of the opinion that the judgment and order appealed from should be affirmed, with costs.

Clement, Ch. J., concurs.


author: Clement, Ch. J.

text:
    Thomas Plunkett, Resp’t, v. Florence Donovan and Michael Lane, App’lts.

      (City Court of Brooklyn, General Term,

      Filed January 26, 1891.)

    .Master and servant—Open and apparent risks are assumed by servant.
    Where the risk of the absence of a guard, are open and apparent, and the servant has been accustomed to use similar machines for years, he must be held to have assumed such risk, and it is error for the court to submit any questions in relation thereto to the jury.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for' a new trial on the minutes.

      J. A. Wernberg, for resp’t; A. G. McDonald, for app’lts.
   Clement, Ch. J.

The plaintiff was in the employ of defendants, who are manufacturers of shoes, and on the 25th day of November, 1889, while at work on a machine used for splitting leather, was injured. The learned judge who tried the case submitted to the jury three questions as to the negligence of the defendants : 1. Whether it was carelessness not to furnish a guard to the machine; 2. Whether the springs were weak, and 3. Whether "the defendants were negligent or not, from the fact that the machine was not fastened to the floor.

The counsel for defendant asked the court to charge the jury to disregard the absence of the guard as tending to show any negligence by the defendants, which request was refused. The counsel also excepted to the submission to the jury of the question whether the plaintiff did not assume the absence of the guard as one of the risks of his employment.

We think that the court erred in submitting to the jury any question in relation to the guard. The rule applicable to this case is laid down in Gibson v. The Erie Railway Co., 63 N. Y., 449, 453: If the defects in the machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risks resulting from its use, unless the master by urging on the servant or coercing him into danger, or some other way, directly contributes to the injury.” See also DeForest v. Jewett, 88 N. Y., 264; Sweeney v. Berlin & Jones Envelope Co., 101 id., 520.

The plaintiff knew that there was no guard, and had worked on similar machines for ten years. There were two rollers and a knife between them, open and visible, and the object of the guard was to prevent injury to the hands of the employe. The machine was a very simple one and could be understood by a skilled laborer without instruction. The risk of the absence of the guard was open and apparent.

It is not necessary to consider the other questions in the case in view of our conclusion on the point stated. The judgment and order denying a new trial must be reversed, and a new trial granted, costs to abide the event.

Yan Wyok, J., concurs.


text:
    Myer Rosenstock and Myer Edelmuth, Resp’ts, v. John Heggarty, App’lt.

      (City Court of Brooklyn, General Term,

      Filed January 26, 1891.)

    Evidence—Books op account.
    Original memoranda made in books of account by the seller in the presence of the purchaser are admissible in evidence where it appears that the witness has no recollection of the occurrence independently of them.

      Appeal from judgment in favor of plaintiffs, entered on the report of a referee.
    Action for goods sold and delivered. The purchases were made by a lady who was introduced by defendant as his wife about twelve years ago, arid he requested that credit be given her on his account.
    On the trial plaintiffs’ salesman testified that he waited on the lady when she was in the store; that he made memoranda of the goods sold in her presence in the books of the firm; identified such memoranda, and stated that he had no recollection of any item, its amount and date, independent of the books. The accounts were then offered in evidence and received over defendant’s objection.

      Martin Flanagan (Horace Graves, of counsel), for resp’ts; Geo. F. Alexander, for app’lt.
   Per Curiam.

The books of account were properly admitted evidence under the rule laid down in The National Ulster Co. Bank v. Madden, 114 N. Y., 280, 284; 23 N. Y. State Rep., 220„ and cases there cited. We have examined the other exceptions taken during the trial and find no error. Ho exceptions were filed to the referee’s report under §§ 993 and 994 of the Code, and we are therefore only called upon to review the exceptions taken at the trial. Dainese v. Allen, 36 Superior Court, 98.

Judgment affirmed, with costs.

Clement, Ch. J., Van Wyck and Osborne, JJ., concur.


text:
    Mary Ann McMurray, Adm’rx., App’lt, v. Teresa Ennis, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed January 26, 1891.)

    Money had and received—When administrator may recover money DRAWN ON CHECKS AFTER INTESTATE’S DEATH.
    A day or two after intestate’s death defendant drew money from liis bank account on checks drawn by him. The estate is insolvent. The checks bore different dates, but defendant states that she received them from her sister at one time, but does not say whether before or after intestate’s death, and plaintiff testifies that defendant claimed to have no money to meet funeral expenses with. Held, that although defendant claimed that intestate was indebted to her, the question whether the checks were delivered to her for value was one for the jury, and that a dismissal of the complaint was error.
    Appeal from judgment entered on dismissal of complaint.
    At the .time of his death, Lawrence Ennis had standing to his credit in the Market and Fulton Hational Bank the sum of $1,200.
    Some time prior to his death he drew the checks set forth in the complaint. He died on August 5, 1889.
    The defendant received these checks from her sister, but it does not appear when or why they were drawn, or why her sister gave them to her, or when the delivery was made. It is shown, however, that on the 7th day of August, 1889, she opened an account with, and deposited these checks in her own name, in the Garfield Hational Bank of the city of New York for collection. These checks were collected in the usual way, through the clearing house, on the 8th day of August, 1889, and passed to her ■credit. On August 17, 1889, she withdrew-the deposit.
    On September 9, 1889, the plaintiff was appointed administratrix of the estate of Lawrence Ennis, by the surrogate of Kings county, and shortly thereafter demanded of the defendant the proceeds of these checks, and she refused to account for the same

      L. B. Bunnell, for app’lt; Stimson & Williams, for resp’t.
   Van Wyck, J.

Heretofore when this cause was before us, see 10 N. Y. Supp., 698; 31 N. Y. State Rep., 976, the appeal book showed that the checks in question had been delivered to defendant by the.deceased, Lawrence Ennis, before his death, and that the defendant had paid him value for the same, or had parted with value on the faith of the checks. In fact, this was found by the trial court at the request of both parties. Our decision then, that the defendant might have a defence to this action for the recovery of the money collected by the defendant on these "checks after the death of the drawer, was based upon such admitted facts. But on the present appeal, neither the delivery of the checks before the death of the drawer nor the parting with value by defendant on the faith thereof is conceded.

The learned chief judge presided at both trials. When he dismissed the complaint on the last trial he must have been misled by the circumstance that such facts were conceded in the first trial, and thus led to assume that they were not controverted in the last In this he seems to have been mistaken, in the light of the evidence, for the testimony tends to show the contrary thereof.

The checks (three) of different dates, were drawn shortly before the death of defendant’s father, the drawer. She says she received them from her sister Lizzie at one time, but she is silent as to whether it was before or after his death; that- she did not know he was going to give them to her till she so received them from her sister; that she never had any conversation with her father about them. Her other sister, Mary McMurray, testifies that, after the death of her father, the defendant told her she had no money to meet funeral expenses with, and borrowed from her a sum for that purpose. Shortly thereafter, about two weeks, Mary McMurray testifies, she asked defendant what had become of their father’s money, when she responded that his bank book had been written up, and there was nothing in bank, and showed and handed h,er the book, when she found, among the vouchers returned, "these checks, and at once asked defendant bow she came by them, and was told that her father had given them to her, and he had a right to do as he pleased with his own money.

How, 'notwithstanding defendant does say her father was indebted to her, it does seem to us that this testimony was sufficient, at least, to carry the case to the jury on on the question whether or not tírese checks were delivered to her for value parted with by her on the faith thereof, or as a step in an attempted gift, and perhaps also on the question whether or not they -were delivered to her by her sister after the death of her father, especially as she was silent as to the time she received them from this sister, and as any presumption that they were delivered at the respective dates thereof was rebutted or put in question .by the circumstance that, though they were of different dates, it seems-she received them from her sister at the same date.

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

Osborne, J., concurs._„


text:
    William De Lacey, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed January 27, 1891.)

    1. Municipal corporations—Brooklyn—Official bonds.
    Under the charter of the city of Brooklyn the bonds of appointive officers must be approved by the common council; approval by a justice of ' the supreme court is not sufficient.
    2. Same—Officers holding over—Salary.
    Plaintiff was an assessor of the city of Brooklyn. His successor was appointed and took the oath of office and executed and filed the required bond, approved by a justice of the supreme court. A month later it was approved by the common council. Weld, that until such approval such successor was not duly qualified, and that plaintiff rightfully held over and was entitled to the salary for that month.
    Appeal from judgment in favor of plaintiff.
    Action to recover salary as assessor for the month of September, 1888.

      Johnson & Lamb, for resp’t; Almet F. Jenlcs, for app’lt.
   Osborne, J.

In August, 1884, plaintiff was duly appointed one of the assessors of the city of Brooklyn for a term of four years; he took the oath of office, executed his bond with sureties, his bond was approved by the common council and filed with the city clerk in accordance with the then existing charter and ordinances and thereupon he entered upon the discharge of the duties of his office.

On August 31, 1888, one James McLeer was appointed by the mayor an assessor in the place of the plaintiff, under the provisions of § 12 of title III of the charter of 1888. By § 3 of the same title it is provided that all officers other than the mayor, comptroller and auditor, shall be appointed as in the act provided.

Section 4 of the same title provides, infer alia, as follows: “ The persons so elected or appointed shall severally execute a bond to the corporation in such penalty and with such sureties as the common council shall require, conditioned for the faithful performance of their respective duties. * * * Such sureties shall qualify in such form as the common council shall prescribe and the bonds thereby required, after having been fully approved, shall be filed in the office of the city clerk * * * before any of the officers required to execute the same shall enter upon the duties of their respective offices.”

The penalty of the bond of an assessor had been fixed by the common council at $3,000.

Section 2 of title 9 of the city ordinances provided for the number of sureties on bonds of officers, the manner of execution and form of justification and also that “The clerk of the common council- shall also endorse and certify on each bond, before the same shall be filed, the resolution of the common council approving the same, and the time of such approval.”

On August 31, 1888, McLeer took the constitutional oath of office, on September 4, 1888, he executed his bond with sureties as provided, and on the same day procured the same to be approved by a justice of the supreme court and filed the same on September 4, 1888, in the office of the city clerk. On October 1, 1889, at the first meeting of the common council subsequent to August 31, 1888, said bond was approved by the common council. During the month of September McLeer was ready and willing to perform the duties of an assessor.

Plaintiff, claiming that McLeer was not qualified to enter upon the duties of his office till his bond was duly approved by the common council, continued to perform the duties of an assessor during the month of September, and brought this action to recover the amount of his salary for that month. He obtained judgment for the amount of such salary, and defendant appeals therefrom.

By part 1, chap. 5, tit. 6, art. 1, § 9, of the Eevised Statutes, it is provided that “every officer duly appointed, except the chancellor, justices of the supreme court and circuit judges, who shall have duly entered on the duties of his office, shall continue to discharge the duties thereof, although his term of office shall have expired, until a successor in such office shall be duly qualified.”

In accordance with the provisions of this section, plaintiff held over until McLeer was “ duly qualified,” and the question, substantially, to be decided on this appeal is when McLeer became “ duly qualified ” to act as an assessor. We must look to the charter of the city, and the ordinances as well, to learn what was necessary to be done for McLeer to become “duly qualified.” The first step to be taken was his appointment by the mayor. After such appointment, according to the terms of § 4, supra, the next step was the execution of a bond by McLeer, with the required sureties. This was done. The next step was to procure the approval of his bond and to cause the same to be filed in the city clerk’s office. McLeer sought to comply with this require'ment by procuring the approval of his bond by a justice of the supreme court and then filing it.

We do not think this was such an approval as the charter and ordinances required; they must be read together to arrive at their full meaning. While it is true that § 4 of the charter requires that the bond, “ after having been fully approved, shall be filed, etc.,” and is silent as to who is to approve it, still § 2 of the city ordinances, supra, entirely removes all doubt as to whose approval is to be obtained. That section says that, before filing the bond, the city clerk shall endorse and certify thereon “ the resolution of the common council approving the same.” This provision, in our opinion, removes all possible doubt as to how and "by whom the bond of McLeer was to be approved. This bond was not approved by the common council till October 1, 1888, and then, and not till then, was McLeer “ duly qualified ” to enter upon the duties of his office. It follows, as a natural sequence, that, under the provisions of the Revised Statutes above quoted, McLeer not having duly qualified, plaintiff was rightfully executing the duties of the office of assessor during the month of September intervening between the appointment of McLeer and the approval of his bond by the common council, and, having performed the duties "of his office during that period, he is entitled to the salary for that month. People ex rel. Williamson v. McKinney, 52 N. Y., 374.

It may be well to state here that the city ordinance above quoted was passed prior to the adoption of the charter of 1888, and that, by § 27 of tit. II. of the charter of 1888, it was enacted that “ all ordinances now in force in the city of Brooklyn, not inconsistent with, this act, shall remain in force until repealed,” so that this ordinance had the same binding effect as if expressly enacted by the legislature.

The learned counsel for the city urges that such a construction interferes with the power of appointment vested in the mayor solely, and that by the common council deliberately withholding its approval of an officer’s bond, it can obstruct the mayor’s power óf appointment. One answer to such contention is that there was no such withholding of approval in this case, as McLeer’s bond was approved at the first meeting of the common council held after his appointment by the mayor; while a stronger and more conclusive answer is that we can only construe the charter and ordinances as we find them, and, if there is an omission therein tending to abridge or affect the mayor’s power of appointment, recourse must be had to the law-making power to correct such omission.

It is further contended by the learned counsel for the appellant that McLeer was entitled to the salary for the month of September as an incident of his office, and he cites the case of Fitzsimmons v. The City of Brooklyn, 102 N. Y., 536; 2 N. Y. State Rep., 475, as an authority upholding his position. We think that the case cited is rather an authority in favor of the plaintiff. The court there said (p. 538): “ That (i e. the salary) belongs to him as an incident of his office, and so long as he holds it” The converse of the proposition is equally true. McLeer did not hold the office nor could he, as shown above, till he was “ duly qualified.” He was not vested with the office by virtue of his appointment by ■ the mayor; he only had an inchoate title to the office, to be perfected by the approval of his bond by the common council, or to be divested by his failure to file a bond; till then, plaintiff held the office, and the salary was an incident to the plaintiff’s holding, and he was entitled to it.

For the reasons above stated, the judgment appealed from .should be affirmed, with costs.

Clement, Ch. J., concurs.


author: Learned, P. J.

text:
    Thomas C. Bagnall, Jr., App’lt, v. Henry E. Barnard, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    Reward—Right of recovery.
    Defendant offered a reward for the recovery of the body of his son who' had been drowned, and did not withdraw the offer. Plaintiff proposed to the defendant’s agent to search for the body, as a diver, provided he was furnished a diver’s suit and persons to assist iu working the apparatus. This was done and plaintiff finally found the body. The court below non-suited the plaintiff upon the ground that he was in defendant’s employment by virtue of the materials, etc,, furnished as above. Held,error. The defendant had offered a reward and never had withdrawn it, and although willing to assist plaintiff in his effort it cannot be supposed that plaintiff because of this ceased to rely on the rewardas an incentive or regarded himself only as defendant’s agent.
    Appeal by plaintiff from judgment entered upon a non-suit.

      Shedden & Booth (J. F. Bhedden, of counsel), for app’lty Henry F. Barnard (Royal Corbin, of counsel), for resp’t.
   Learned, P. J.

The son of the defendant had been drowned in a river, and the body had not been found. The defendant offered, by publication, a reward of $200 to the person who should find the body. The plaintiff, having seen this offer of a reward, applied to the defendant’s agent, while this offer was outstanding, and proposed to search for the body by diving, if the defendant would provide the diver’s suit and furnish the man necessary to aid in working the apparatus. The defendant’s agent consented, and the suit and the man were furnished by defendant Some necessary structure like a dock was also supplied by defendant. The plaintiff thereupon did dive a few times, and at last found the body of defendant’s son, and brought it up from the bottom of the river to the shore, and it was received by defendant.

The plaintiff brings this action to recover the reward above mentioned. The learned justice before whom the cause was tried nonsuited the plaintiff, and held that the plaintiff was not the finder; that he was working for defendant, and that the finding was more properly the work of the defendant himself, in whose employ the plaintiff was acting when he found the body; that plaintiff acted gratuitously; that others working with plaintiff were equally entitled to the reward. We think that this was not correct. Undoubtedly when the plaintiff proposed to defendant’s agent to dive for the body, the agent could have made an agreement with plaintiff that he should do this work for defendant, and be compensated by the defendant at an agreed price, or at what the work was worth, and that plaintiff should not be entitled to the proffered reward.

If this had been accepted, then a different case would have existed. But we do not find such evidence. There is some evidence on which a jury might be urged to believe that plaintiff’s offer to dive was gratuitous, and made to get himself a reputation. But on this there is a conflict. And we think that the evidence did not justify the court in holding as matter of law that the plaintiff did not rely on the reward as his compensation.

Nor do we think that the facts proved established as matter of law that the plaintiff was so in the employ of the defendant that it could be said that the defendant found the body. Naturally the defendant was willing to provide any appliance which plaintiff needed in order to dive. But the providing of such appliances did not, as matter of law, show that plaintiff was defendant’s employe. The offer of $200 for finding the body was standing open, in no way withdrawn.

At the very time when the defendant’s agent was providing these appliances, and at the time when by their aid the plaintiff began his work of diving, the defendant was still proclaiming that he would give $200 to the person who found the body. The plaintiff might justly have relied on this.

It is true that what the defendant did aided the plaintiff in his work, and thus aided in the final result. But it was the plaintiff who found the body. And it would be a strange meaning to give to the offer of a reward, that it was not to be payable in case the ■defendant rendered any assistance in the search.

An offer of a reward in such a case is intended to stimulate exertion by compensating success beyond the ordinary value of the work done. Unless the offer is plainly and clearly withdrawn, so that the person who attempts the work has no longer this stimulus to effort, he ought to receive what had been promised ; even though he who made the offer may think that he could have had the work done at a cheaper price.

Judgment reversed, new trial granted, costs to abide event.

Landon and Mayham, JJ., concur.


text:
    In the Matter of the Petition of George Christie et al., for Appointment of a Trustee Under the Will of Oliver Butter-field.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

      1. Will—Trust.
    The will of B. gave one-third of his real and personal estate to his wife, R., and the rest to his eight children, to be paid within a year after the youngest became twenty-one. It continued: “I give all my real and personal estate to my executrix, R. * * * in trust for the payment of the above legacies, with power to sell and dispose of the same * * * provided, however, that no part of my real estate shall be sold until each of my said children shall have arrived at the age of twenty-one.” Five of the children were minors when the testator died. Held, that as there was no authority to R. to receive rents and profits, the trust was only valid as a power, subject to which the land passed to the devisees.
    :2. Same—Power of sale.
    R. held such power, not as an independent one, but as a power attached to her office as executrix; and upon her death the power did not vest in this court, but passed to an administrator with the will annexed, to be appointed.
    ■3. Same—Suspension of ípower of alienation.
    But the trust power was void, because by it the power of alienation was suspended for more than two lives in being, i. e., during the minority of five infants. 1 R S., m. p., 723, §§ 15, 14.
    Appeal by purchasers from the heirs-at-law of Oliver Butter-field of portions of his real estate from an order appointing Frank H. Graham trustee, in place of Ehoda Butterfield, executrix of Oliver, who, the said Ehoda, is now dead, to perform and execute the trust contained in the will of Oliver. The petitioners were creditors of Oliver, who died in 1868, and they held a. note against Oliver. In 1876, his executor and executrix, Ehoda, gave the petitioners a note, which was put in judgment in 1881, and has not "been paid. This claim is the basis of this proceeding.

      Young & Kellogg (A. D. Arnold, of counsel), for app'lts; Job Q. Sherman (.Matthew Male, of counsel), for resp’ts.
   Learned, P. J.

Oliver Butterfield died July, 1868. By his-will he gave one-third of his estate, real and personal, to his wife Ehoda. He gave the rest and residue, real and personal, to his eight children and one grandchild, equally, except that one daughter was to have half of the amount which others had. The legacies were to be paid within a year after the youngest child became twenty-one. He made his wife executrix and his son executor.

He then continued: “I give all my real and personal estate of" every kind to my wife Ehoda, executrix, * * * in trust for

the payment of my just debts and the legacies above specified, with power to sell and dispose of the same.”

As there was no authority given to Ehoda, executrix, to receive-the rents and profits, no estate passed to her. But this trust was valid as a power, and the land passed to the devisees, subject to-the power. 1 E. S., m. p., 729, § 56.

Therefore the title to the land vested at once in the devisees named in the will, and all which Ehoda, the executrix, took was-a mere power in trust, which enabled her to sell the land and ap- ■ ply the proceeds. She had no estate as trustee. As to the one-third which was devised to her, she could sell and convey that as-owner.

She held that power in trust as a part of her authority as executrix; not as any independent power. There had been much discussion in the courts whether a power thus given to an executrix to sell land for the purpose of paying debts and legacies passed to-the administrator with the will annexed or not. It is not necessary to go back to the old cases, beginning with De Peyster v. Clendining, 8 Paige, 295. For the matter has now been definitely-settled by Molt v. Ackerman, 92 N. Y., 539, at pages 553, 554. ítis there held that such power belongs to the office of executrix and passed to the administrator with the will annexed.

This decision is a construction of 2 E. S., m. p., 72, § 22, defining the power of administrator with the will annexed. And thus construed that section must constitute a practical exception to-the general rule, that on the death of a trustee the trust or the power in trust vests in the supreme court. 1 E. S., 730, m. p., § 68; 734, § 102.

Hence it follows that if there be any power in trust under this-will yet to be enforced, it must be enforced through an administrator with the will annexed. This is not the case of a power in trust, not connected with the office of executrix. On the contrary if this power be still in existence, it belongs to the office of the executor. And as the executrix is dead it must be executed (if at all) by an administrator with the will annexed. To hold otherwise would be to disregard the decision last cited, which must be held to have settled the question on which there had been uncertainty.

There are some other difficulties in this case, and we do not intend to decide whether the petitioner is, or is not, entitled to relief in any court. It is enough to say first that this is a mere power in trust which conveyed no estate to the executrix, Rhoda: second, that the power as it is given to pay debts and legacies, and especially as real and personal estate are mingled, belongs to the office of executor and is not to be separated therefrom; third, that it would pass to the administrator with the will annexed; and fourthly, that for these reasons it is not for the court to appoint a trustee of the power and thus to separate it from the office of executor.

Whether these petitioners can show themselves at this late day to be creditors of the deceased and can obtain the appointment of an administrator with the will annexed we do not decide. 2 R. S., m. p. 74, § 27. There has been great delay. It does not appear precisely when the will was proved. But it is averred that the deceased left personal property worth over $1,000, which of course would be the first fund for the payment of the debts. The executrix died July 29, 1887; and the heirs of the deceased have sold some of the land.

There is another point which should be considered. The will of the deceased provides that no part of his estate shall be sold until all of his children arrive at twenty-one. At his death, five were under that age. Therefore the trust power could not be executed until these five had arrived at twenty-one. The estate of the devisees was subject to the trust power ; so that they could not convey a clear title until the five minors had reached twenty-one. In Henderson v. Henderson, 113 N. Y., 1, at 13; 21 N. Y. State Rep., 800, it was held that a clause that executors having a power should not be compelled to make partition, etc., until five years from probate did not suspend the power of alienation. For it was said that the power of sale was not" suspended when the executor was merely permitted to delay. Robert v. Corning, 89 N. Y., 225. The present case is different. The executrix is here absolutely prevented from making a sale for a time limited by the arrival of five minors at maturity. And as the existence of this power, if valid, would suspend the absolute power of alienation by the devisees, the suspension to be valid may not be beyond the two lives limited by statute. 1 R. S., m. p. 723, § 15. The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Section 14. Eow the executrix can not execute the power until the majority of the five minors. And until that time the conveyance of the devisees would be liable to be- defeated by the subsequent execution of the power. Hence the power does suspend the absolute power of alienation until that time and is therefore void.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Landon and Mayham, JJ., concur.