author: Parker, J.

text:
    William T. A. Hart, Resp’t, v. Sun Printing and Publishing Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Libel—Report op judicial proceedings.
    Section 1907 of Code, as qualified by § 1908, is inapplicable to a libel contained in the heading of a report of judicial proceedings, or to any matter added by a person concerned in the publication, or to anything appearing in the report but not forming a part of the official proceed, fags.
    2. Same.
    The publication, in this case, was held not to be a fair report of a judicial proceeding.
    3. Executor, etc.—Sale.
    A sale, by an administrator, of estate property, under fraudulent advertising, to a personal friend for much less than its actual value, is fa violation of his official duty.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Franklin Bartlett, for app’lt; David McClure, for resp’t.
   Parker, J.

—The judgment under review awards to the plaintiff damages against the defendant because it published in the Sun newspaper, on the 13th of November, 1890, the following:

“Sexton Hart Asked to Explain.’
“Creditors of an Estate not Satisfied with his Administration.
“William T. Hart, sexton of St. Patrick’s Cathedral, on Fifth avenue, is having tribulations of a complicated character with the creditors of the estate of Archibald Johnston, of which he is administrator. Mr. Hart made statement of his stewardship which Langan Bros., the dissatisfied creditors, say will not bear a searching examination, and, after a referee had disagreed with them, they referred it to Surrogate Ransom. Johnston was proprietor of the livery stables at 102, 103, 104, and 105 Bast Thirteenth street, and died insolvent. The estate amounted to about $16,000, and Mr. Hart set himself to clear it. In this clearing process, according to Langan Bros., about $9,000 disappeared, The hearing-will come up next Monday.”

On this appeal it is urged that the trial court erred (1) in refusing to dismiss the complaint on the ground that the defendant had established the defense of justification pleaded by it; (2) in denying a motion to direct a verdict in favor of the defendant on the ground that, the article being a fair and true report of a judicial proceeding, recovery was impossible without proving actual malice, which was not attempted ; (3) in refusing to charge certain requests of the defendant. Touching the first ground assigned as error, it should be said that evidence was presented on the part of the defendant pointing strongly towards the truthfulness of many of the assertions complained of. If it be assumed that the testimony would have permitted a finding that the article was substantially true, it did not require it. A question for the jury was therefore presented in such respect, and the court properly refused • to take it from them. The Code of Civil Procedure (§ 1907) provides, among other things, that an action cannot be maintained for the publication of a fair and true report of any judicial proceeding without proving actual malice. As the plaintiff did not prove actual malice, it is insisted that a verdict should have been directed in its favor, on the ground that the publication was privileged. Prior to the publication certain proceedings had been had in surrogate’s court, relating to the administration of plaintiff, resulting in an appointment of a referee, the taking of testimony before him, and a report to the surrogate’s court. The defendant insists that the article complained of was a fair and true report of such proceedings. Whether the communication was privileged was a question of law for the court. John W. Lovell Co. v. Houghton, 116 N. Y. 520; 27 St. Rep. 559. The inquiry now is whether the trial court rightly decided it.

Section 1908 so qualifies § 1907 as to make it inapplicable to a libel contained in the heading of such a report, or to any matter added by a person concerned in the publication, or to anything appearing in the report but not forming a part of the official proceedings. And it is the general rule that a privilege which protects publishers of libelous charges does not include imputations voluntarily made which are plainly irrelevant and impertinent Moore v. Manufacturers' Nat. Bank, 123 N. Y. 420; 34 St. Rep. 335. Under the section of the Code referred to, the headlines of this article are not privileged; and, considered in connection with the article which they introduce, they are libelous. Nor can it be said that the article was a fair and true report of the judicial proceedings which had taken place at the time of its publication.

Objection has been taken to the administrator’s account, testimony taken before the referee, and requests to find on either side presented, resulting in a report by the referee favorable to thé plaintiff. Clearly such is not the impression given by the reading of the article. It suggests defeat rather than triumph. It charges that plaintiff had been asked to explain; his creditors were not satisfied with his administration ; he was having tribulations of a complicated character; his stewardship has not borne a searching examination ; that Johnston had died insolvent, leaving an estate which the plaintiff had set about to clear; and the clearing process had resulted in the disappearance of $9,000. While these statements are defamatory, still, if they constituted a fair report, of the judicial proceedings which had been had at the time of their publication, the defendant’s claim of privilege should have been sustained, for actual malice on the part of defendant was neither proved nor attempted. But it cannot be said as matter of law that all of the libelous charges with which the article abounds has adequate support either in the testimony taken before the referee or in the proceedings before the surrogate. By way of illustration, it may be observed that the assertion that in. the clearing process the plaintiff had caused the disappearance of about $9,000 is not sufficiently sustained. The leairned court, therefore, ruled correctly in such respect.

The seventh request was as follows : “Seventh. The evidence shows that the alleged sale by William T. A. Hart, of the right, title, and interest of the intestate, Archibald Johnston, to the leasehold premises, 105 and 107 Bast Thirteenth street, to James Kenny, for $110, was improvident, negligent, and in violation of said" Hart’s duty as administrator.”

H, as a matter of law, the evidence demonstrated that plaintiff had been improvident in the respect named in the request, it is apparent that it should have been charged, for, while it may not have operated to prevent a recovery, it not unlikely would have had the effect of reducing the amount of damages awarded. The effect of the refusal naturally was to lead the jury to believe that such portion of the article was not true, and to persuade them to compensate him because of it; and we must assume that it was considered by the jury in awarding damages. The inquiry then is whether the evidence justified the request. That Archibald Johnston owned an undivided one-eighth of the leasehold premises at the time of his death is demonstrated. An attempt was made to confuse the question of ownership upon the trial, but it was not successful. Hart owned an undivided one-half interest, and subsequently he purchased of Mrs, Johngton an undivided one-eighth owned by her, for which he paid $1,500. This purchase furnishes some evidence at least of Hart’s opinion as to the value of the one-eighth owned by the estate. What Hart, as administrator, did was to advertise the interest of the estate for sale at the Real Estate Exchange, and thus was given to it the appearance of regularity. But the notice of sale did not assert that the interest to be sold was one-eighth, but rather that it was all of the interest of the deceased, whatever it was, and. was believed to be one-eighth. The indefiniteness of the notice of sale respecting the quantity of the estate to be sold was certainly not calculated to encourage bidders. Nor did it have that effect, for at" the sale it was struck down to Mr. Merritt, counsel for Hart, whose bid was in form made by a Mr. Kenny, who turns out to have been a friend of the administrator, having bonstant business relations with him, $110,—nearly $1,400 less than Hart paid Mrs. Johnston for a like interest. A quarter interest was still outstanding, and Hart commenced an action of partition, which resulted in a sale of the leasehold estate, of which he became the purchaser. • The sum of money which he subsequently realized for the property thus purchased makes it clear that the one-eighth interest was fairly worth at least the sum which he paid Mrs. Johnston for her interest. Without presenting more of the details of the testimony, it is apparent that Hart was neglectful and improvident in the discharge of his duty as administrator in respect to the interest under consideration. If he was not the real beneficiary of the purchase nominally made for Kenny’s benefit, in which direction the evidence strongly points, his friend was. Assuming the most favorable view possible, and we have presented a case where an administrator, advertising property for sale in a manner calculated to prevent competition, permits a sale of it in his presence to the personal friend for about one-fifteenth of its actual value. Under such circumstances it is not possible to reach the conclusion that he made a reasonable effort to secure for the estate what the interest was fairly worth. On' the contrary, the evidence considered as a whole required the determination reached in another forum where a referee found that the administrator, this plaintiff, had been neglectful of his duty, and this court, in affirming the decision of the referee, said : “ With respect to this sale to Kenny, the referee held that it was improvidently made, and in violation of their < duty as administrators, and that the administrator Hart should be personally charged with the value thereof, with interest.” In re Johnston, 74 Hun, 618; 56 St. Rep. 692.

Having reached the conclusion that the court erred in refusing to charge as requested, it follows that the judgment should be reversed, with costs to the appellant to abide the event.

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Mary E. G. Shaw, Resp’t, v. Richard Weber, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Release—-Repudiation—Returning consideration.
    A release of damages may be repudiated for fraud without returning an alleged consideration, which was paid to the releasor under the representation of a gift.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      L. E. Prendergast, for app’lt; D. G. Harriman, for resp’t.
   Follett, J.

—This action was brought to recover damages foj a personal injury caused, it is alleged, by the negligence of the defendant and his servants. The defendant is a butcher having a retail store at bic. 212 East 120 street; and for eight or nine years before January 1, 1890, the plaintiff had been a customer of the defendant, at this shop, and on the date mentioned she entered the shop for the purpose of purchasing meat. The floor of the shop was covered with sawdust, and as the plaintiff approached a counter she slipped and fell, severely injuring her knee. She looked for the cause of her fall, and saw that she had stepped on a piece of fat or suet which was about a foot in length, and about the width of her shoe. She testified that two or three of defendant’s clerk’s helped her up, but not one of them was called to deny that she fell, and from the cause testified to by her. The evidence was sufficient to sustain the finding that the negligence of the defendant or his servant permitted a piece of suet or fat to be left on the floor, and concealed from the view of customers by the sawdust. It was not asserted that the plaintiff, by negligence on her part, contributed to the accident, and the evidence was sufficient to sustain the finding that she was free from fault. The questions of defendant’s negligence, and of the plaintiff’s freedom therefrom, were not really litigated on the trial.

The defendant alleged in his answer that on the 17th of May, 1890, he paid the plaintiff $100, and that she, in consideration thereof, by a written release, executed under her hand and seal, discharged him from all claim for damages. She did execute and deliver such a release, but she testified that it was procured by fraud; -that some person called on her, when the following occurred : “A. Ma introduced me to him, and he asked me questions about my health, and then he said, ‘ I have here a present of $100 from Mrs. Webber; ’ and, handing me the money, he said: 1 How, this is from Mrs. Webber,—a present from Mrs. Webber.’ Then he handed me a paper, and said, ‘ Please sign this.’ And I was sitting in a chair at the time,—not a chair like this, but a stuffed chair,—and my foot was up on a stool and he bent over, and put the paper down, and kept hold of the paper all the time; and T was on the point of taking it in hand, and he said, 1 That is merely to show that you have received the money,’ and my mother said : ‘What is it you wish her to sign? ’ He said: 1 Hothing at all. It is simply a receipt to show that she received the money.’ And she said: ‘ That is it.’ And still I hesitated to take it, and I was about to take the paper again, and he said : ‘ Oh, don’t be afraid ! That is merely a receipt to show that you have received this money. That is all.’ Q. Did you sign ? A. Yes, sir; then I signed it.”

Her testimony was corroborated by her mother, and was contradicted by the attorney who gave her the money and procured the release to be executed. He testified that he told the plaintiff that the defendant sent her the money, and that he read and explained the release to her. It is conceded that the defendant’s wife had on a previous occasion made the plaintiff a present of $10, and had once been to see her during her sickness caused by her fall. The question whether the release was obtained by fraud and false representations that the $100 was a gift from defendant’s wife, was left to a jury, under instructions to which no exceptions were taken, and the issue was found in favor of the plaintiff. '

The defendant insisted on the trial, and insists on this appeal, that the plaintiff could not impeach her release, or maintain this action, without first restoring, or offering to restore, the $100 which she received. The difficulty with this position is that the plaintiff testified that she never received $100 from the defendant in settlement of her cause of action, or for any purpose, but that that sum was given’her by defendant’s wife, as was the $10 which she previously received. This, being found to be true, deprives the defendant’s point of all force. This case is within the principle of Cleary v. Municipal Electric Light Co, 47 St. Rep. 172; 19 N. Y. Supp. 951, and affirmed by the court of appeals on the opinion of the general term, 139 N. Y. 643; 54 St. Rep. 932. In that case a servant brought an action against his master for a personal injury, and it was alleged and testified that, in consideration of $250 paid by the defendant to the plaintiff, the latter bad released and discharged the cause of action. The plaintiff testified that the money was paid to and received by him as wages, and not as a settlement of the cause of action, and that the release was obtained by false representations. In that case, as in this, it was argued that the action could not be maintained without restoring, or offering to restore, the money received. In discusing this question, it was said: “ The question of fact thus in issue was submitted to the jury under a charge that if the plaintiff received the money in satisfaction of the claim, or knowingly executed a general release, he could not recover, but if there was no agreement to compromise, and the plaintiff signed the release under the statement that it was a mere receipt' for wages or gratuity, it was no bar to this action. It is conceded that the plaintiff never tendered a return of the money paid him.’’

In that case, as in this, the plaintiff had a verdict, which was sustained by the general term and by the court of appeals.

But a single exception taken to the admission or exclusion of evidence is argued—an exception to the refusal of the court to permit the defendant’s attorney to testify to the details of the conversation which he had before the action commenced, with the plaintiff’s attorney, in respect to the release. How much the plaintiff’s attorney knew about the release, and how or when it was obtained, and the discussion had between the attorneys, were facts not relevant to any issue in the case. The judgment and order should be affirmed, with costa

All concur.


author: Lewis, J.

text:
    Sarah E. Kane, App’lt, v. Lura E. Aldridge, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Assumpsit—Money had and received.
    Where plaintiff fails to prove what amount of money has been received by defendant, or that, if she has received any money from the sale of plaintiff’s share of the joint devise, it 'was received with an express or implied agreement to pay the amount to her, she fails to establish a cause of action in assumpsit.

    Motion for a new trial on exceptions ordered to be beard at general term in the first instance.

      Eugene Van Voorhis, for pl’ff; P. Chamberlain, Jr., for def't.
   Lewis, J.

—This action was brought to recover $1,380 which the plaintiff alleged was had and received by the defendant to the use of the plaintiff. It appeared from the pleadings and proof: That the plaintiff was one of the heirs at law, and a legatee named in the will, of Sarah A. Aldridge, deceased, which will had been duly admitted to probate. That Walter T. Aldridge was the executor named in the will, and that letters testamentary were duly issued to him. By the terms of said will, the testator gave and bequeathed to each of her heirs (five in number, the plaintiff being one of the five), the proceeds arising from a salé of the land and premises known as her “ homestead,” in the city of Rochester ; the proceeds to be divided equally, share and share alike, after the sale. The executor was, by the will, authorized to sell and convey the real estate for the best price he could obtain therefore. That the plaintiff thereafter conveyed her interest in the property to the defendant, in order to facilitate the sale thereof. The conveyance was without consideration. The property was, thereafter, conveyed by the defendant and the other heirs to one Ashton. Aldridge, as executor, executed and delivered to the purchaser, Ashton, a deed of said premises. The proceeds of the sale were paid to the defendant. The plaintiff duly demanded of the defendant her portion of the proceeds before the commencement of the action. After proving the foregoing facts, the plaintiff rested her case. Upon a suggestion from the court that he was about to nonsuit the plaintiff, her counsel offered to show “ that, prior to the executor’s deed of the property in question, Walter T. Aldridge, the executor, applied to the plaintiff to give a quitclaim deed of the premises to the defendant, Lura, and told her it was to enable him to facilitate the sale of the property, and when the property was sold she should be paid her share of the money, and that in pursuance of that arrangement she did execute such a deed to Lura, receiving nothing therefor. That Aldridge conveyed the property, as executor, and permitted Lura to take the money, and she has never turned over any share to the plaintiff-The business was done by Philetus Chamberlain, who was the ah torney for Walter T. Aldridge, the executor, and also for Lura. lie sent the deed to Walter Aldridge,—to California,—to be execu id, delivered the deed on its receipt by him, received the money, and paid it over to Lura.” The court excluded the offer, and the plaintiff excepted. There was no proof that the defendant received the proceeds of the sale of the plaintiff's interest with any understanding or agreement with any one that she would hold them for, or would pay them or any part of them to, the plaintiff.

The case is barren of any evidence showing what amount was received from the sale of the property, or what sum, if any, was paid to the defendant by the executor. The executor was called as a witness, and denied that he had paid anything to the defendant. The plaintiff produced upon the trial, and had marked for identification, an account of the executor, filed in the surrogate’s office, which contained a statement of the amount received for the sale of the property, but the account was not offered or received in evidence. The plaintiff having failed to prove what amount of money had been received by t.he defendant, or, if she received any money from the sale of the plaintiff’s share, that it was received with an express or implied agreement to pay the amount to the plaintiff, she failed to establish a cause of action, and was therefore properly nonsuited. It is consequently not necessary to examine the question whether, if the amount paid to the defendant had been shown, the facts would have justified a verdict for the plaintiff. The motion for a new trial should be denied, and judgment directed for the defendant on the nonsuit

All concur.


text:
    Dennis C. Feely, Resp’t, v. Gilbert E. Jones, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Ple adizís—Libel—J ustificatioh.
    An answer in an action ior libel, to amount to justification, must be as broad as the charge in the complaint.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an' order denying a motion for a new trial made on the minutes.

      Henry Yonge, for app’lt; John Van Voorhis, for resp’t.
   Lewis, J.

—This is an action of libel brought against the defendant for publishing an article charging the defendant, who is a lawyer, with dishonesty in his profession. The plaintiff was at the time of the publication of the article the nominee for the office of attorney-general of the state upon the Henry George ticket. A copy of the article was set out.in the complaint • It was headed: “ A Specimen George Man. Engaged in Eating Hp a Widow’s Estate. ' A Leaf from the Professional Record of the George Party's Candidate for Attorney-General.” The article is dated Rochester, October 19th. It proceeds to state that “ the candidate of the George party for attorney-general is D. 0. Feely, a lawyer of this city,” and that “ a case is now pending before the surrogate of Monroe county, in which Mr. Feely figures in a role not altogether new to the legal profession, but one which invites criticism and contempt. As attorney and claimant, he, some time ago, set about eating up a widow’s estate. He has not concluded his meal, but that is more the fault of the authorities who have interrupted its progress.” It further stated: That a widow by the name of Anna Kane had died in the city, leaving a small estate, of about $6,000 and that “it seems to have occurred to kind neighbors that the proper disposal of her estate demanded its distribution among themselves. At all events, plans were laid to seize it, and, in their perfection, Mr. Feely has played an eager lawyer’s part. A number of creditors have filed claims against it, which are as ingenious as they are exorbitant. Mr. Feely is their attorney, and nobly has he risen to meet their demands upon his talent.” That “ the sum total of the claims is nearly $5,000, or almost the amount of the widow’s savings. The nature of the claims suggests the extreme difficulty often encountered by lawyers in drafting bills of particulars in delicate cases.” That “Counsel Feely early sought to have an administrator of this estate,—a friend of his—appointed. In this he was disappointed, for the surrogate selected the county treasurer, Alexander McVean ; and upon him, as administrator, has fallen the examination of these so-called‘claims.’” That “first upon the roll of creditors is D. 0. Feely, who, for legal services rendered from June, 1880, to May, 1886, wants the sum of $500. He does not specify the nature of his services, otherwise than ‘legal.’” And then follow statements as to the particulars of other claims presented by other claimants, and states : “ Client Ho. 2 is Mary A. Kane, for whom Mr. Feely asks the sum of $1,268.16. Her bill is longer than that of Barnstable, and is brim full of particulars. Her memory carries her back no further than the law of limitation allows. For instance, in Hovember, 1880, she paid for cloth for two night dresses for the deceased the sum of $1.25, and for making the same $1. Her mind, presumably owing to the inspiring power of her lawyer, grips a large variety of details for the bill of 1881, as a feminine mind naturally would, under the pressure of circumstances. The administrator, after some investigation, has practically decided that the claims are fishy, and that Mr. Feely, if he is not ridiculed out of court by that time, can go before a referee, and take his chances of establishing these claims by testimony, and that in the meanwhile the widow’s savings will remain, in good hands, and the rights of the heirs will be respected, and properly protected.” The complaint alleges that the defendant intended thereby to charge the plaintiff with misconduct and fraud in the practice of his said profession, with being dishonest, and with distributing to himself and others property that did not belong to him or them, and with filing claims against the estate of Anna Kane which were fictitious and fraudulent, and manufacturing such claims, and in attempting to get a friend of his appointed as administrator of that estate improperly; intending thereby to charge the plaintiff with breach of trust, extortion, and larceny. The first count of defendant’s answer denies the allegations' of the complaint, except that the plaintiff was an attorney, and had practiced law in Kochester. For a second defense the answer alleges that the plaintiff was a candidate of the George party for attorney general; and that one Anna Kane, a widow died intestate at Rochester, leaving an estate amounting in all to about $6,000, and that the plaintiff, as as attorney for Mary A. Kane, an alleged creditor of the deceased, applied to the surrogate of Monroe county for letters of administration upon the estate of the deceased ; that his application was refused, and the surrogate appointed the county treasurer; and that, thereafter, the following claims were presented against the estate, viz.: Mary Ann Kane, for $1,268.16; Patrick J. Cummings, for $989.16; Mary Lacldy (or Leddy), for $800; Elizabeth Bostable (or Barnstable), for $520; and D. C. Feely, for $500. And then follow detailed statements of the items of the accounts. The answer further alleges: That said claims were exorbitant and unjust, and that the administrator rejected all of them. - That they were thereupon referred, pursuant to statute, except the claim of Elizabeth Bostable, which was withdrawn. That all of the claims dated back to 1880,—six years prior to the death of the.deceased,—and that there was no record that any of the claims were presented to the deceased prior to her death, and that, if said claims had been allowed, they would have eaten up the greater part of the estate. And that said claims, except that of Elizabeth Bostable (or Barnstable), were finally allowed in part, as follows: Mary A. Kane, $866.16; Patrick J. Cumings, $250; Mary Leddy (or Laddy), 488; and Dennis C. Feely, $355. That the deceased was buried by an .undertaker in Rochester, who gave the deceased a funeral, the grandeur of which was inconsistent with the position that the deceased had occupied during life, and charged her estate therefor $357.22. The third count of the answer consisted of a repetition of the denials and allegations contained in the second count, which are pleaded as a partial defense, and in mitigation of damages.

The trial court held that the answer was not sufficiently broad to amount to a justification, but that the facts alleged were proper to be proved in mitigation of damages. An answer, to amount to a justification, must be as broad as the charges in the complaint. This answer manifestly did not come up to this rule. Notably, it failed to justify the charge that the plaintiff conspired with others, as an attorney, in preparing and presenting fraudulent claims against the estate. Every allegation of the answer might be true, and yet the-plaintiff have been entirely innocent of any misconduct) so far as his relations to the claims presented on behalf of his clients. The answer does allege that the claims were exorbitant and unjust, but it nowhere alleges that the plaintiff had any knowledge or information which should have led him to suppose that they were improper claims. Again, the answer failed to justify the charge that the plaintiff sought to have a friend appointed administrator of the estate. There was an imputation in the article, in that regard, that the plaintiff sought to procure the appointment of a friend as administrator, with a view of thereby promoting the allowance of the claims. There was nothing in the answer nor in the evidence which tended to sustain this inputatian. It is the contention of the defendant that the accounts themselves furnished intrinsic evidence that they were fraudulent. There is no allegation in the answer to that effect, and we fail to find such evidence upon the face of the accounts. Neither was there anything in the disparity between the amount of the claims presented and the amounts allowed by the referee which necessarily tended to show that they were fraudulently made. The claimant, Mary Ann Kane, presented a claim fur $1,268.16, and was allowed $866.16. Mary Leddy presented a claim of $800, and was allowed $488. The plaintiff presented an account for $500, and was allowed $355. Patrick J. Cumings presented an account for $989.16, and was allowed only $250. While the disparity between Cumings’ claim, as presented, and the amount allowed by the referee, might be some evidence of its fraudulent character, the plaintiff is not charged with having acted as Cumings’ attorney, or with having had'anything to do with him or his claim. To constitute a justification in an action for libel, the answer must aver the truth of the defamatory matter charged. It is not sufficient to set up facts which only tend to establish the truth of such matter. Without any averment of its truth, the facts detailed can only avail in mitigation of damages. Thrall v. Smiley, 9 Cal. 259; Newall, Defain. 660, 661; Wachter v. Quenzer, 29 N. Y. 547-551. The trial court, we think, properly held that the allegations in the answer did not constitute a justification. We find nothing in the exceptions of the defendant calling for a new trial.

The judgment and order appealed from should be affirmed.

All concur.


author: Per Curiam.—

text:
    In the Matter of the Central Stamping Company.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Corporations—Dissolution—Leave to sue.
    Leave to sue for the dissolution of a corporation will he granted only on the written application of the attorney general.
    Appeal from an order granting application for leave to commence an action to annul the charter of a corporation.

      Howard Mansfield, for app’lt; Louis Marshall, for resp’t.
   Per Curiam.—

An order permitting an action to be brought to annul the charter of a corporation because it has violated § 1798 of the Code of Civil Procedure should not be granted, except on the written application of the attorney general to the court, stating that in his opinion the action can and ought to be maintained, for reasons given. By statute the duty is devolved on him to determine whether, in his opinion, the action can and should be maintained, which duty he cannot delegate. This determination must be made as the basis of an application, and evidence of it must be presented to the court. In this case no application has been made by the attorney general, or by any one who swears that he is authorized to act for him; and there is no evidence in the record that the attorney general has determined that an action should be brought, or that this particular application should be made. In matters so important as the beginning of actions.for the dissolution of corporations, such a practice is too loose, and ought not to .be tolerated. If the attorney general be .of the opinion that such action can and ought to be maintained, he should make a written application to the court, stating his conclusions, accompanied by such affidavits and evidence as is deemed necessary to support the application. The application in this case, if such it. can be called, is simply an affidavit made by an attorney, in which it is stated that in the opinión of the affiant a cause of action exists, and that the suit should be brought; but the affiant does not state that he has been authorized to represent the attorney general, or to make -the application in his behalf. We have not overlooked the opinion of the attorney general, contained in the record, in which he says, “ Counsel for petitioner may apply in nry name, upon notice to the corporation, for leave to commence the action.” Ctiunsel did not apply in the name of the attorney general, but in his own. It is not stated in the opinion that the attorney general has determined that an action can or ought to be maintained. This is altogether insufficient to authorize, the court to grant the order, which should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to the right of the attorney general to apply for leave to bring an action.


text:
    Joseph A. Vega et al., App’lts, v. George B. French et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Appeal—Conflicting evidence.
    Verdict on conflicting evidence will not be disturbed.
    Appeal from a judgment dismissing the complaint on the merits.

      P. M. Brown, for app’lts; John D. Quincy, for resp’ts.
   Per Curiam.—

This action was brought by judgment creditors to have a bill of sale executed by the husband, George B., to the wife, Ellen French, set aside, upon the ground that it was made with intent to hinder, delay and defraud creditors. In addition, the plaintiffs sought to obtain a lien on certain real estate owned by the wife; but, as no sufficient proof was offered to sustain any such lien, it appearing that the property was purchased by the wife with her own money, this need not be further considered.

This leaves for our consideration the question of the validity of the bill of sale. The appellants concede that the wife, from time to time, covering a period of some 13 years, loaned to her husband an amount which, without interest, was $6,317.33. The estimate placed upon the property included in the bill of sale, consisting of tobacco and book accounts, was $7,507.91. So that, if the entire amount was realized by the wife, the value of the property turned over to her would exceed, by five or six hundred dollars, the principal amount claimed, by her, and interest thereon. It appears, however, that the plaintiffs refused to deliver, and retained $1,200 worth of the tobacco, which was included in the bill of sale; and this, together with 24 cases relinquished to another creditor, which were worth $1,230.88, also included in the bill of sale, would, assuming that the wife got the full value for the remaining property, leave the amount actually received by her much less than the amount of her claim, without interest. There is much force in the argument that, notwithstanding the result showed that the wife got less, it appearing that the bill of sale provided that she should get some five or six hundred dollars more, than was actually due her, coupled witli the other facts appearing,—that upon talcing possession she constituted her husband her agent and attorney, and undertook to continue the business while holding the creditors at bay,—such evidence would have justified the court in concluding that the bill of sale was made with intent to defraud the creditors. The evidence, however, is equally consistent with the view that no such intent was entertained by the parties; for, in addition to the showing that the consideration for the bill of sale was an honest indebtedness due from the husband to the wife, it would appear that the real intent was to pay the debt of the wife, and that, out of the moneys which she might realize, she was prepared, with the assistance of her husband, to continue the business, with a view of realizing therefrom sufficient to pay her husband’s creditors, thus negativing the idea that the purpose was to defraud. All that can be said is that upon the evidence a question of fact was presented, which has been found adversely to the plaintiffs; and such finding that there was no fraudulent intent having sufficient evidence to sustain it, and not being overborne by weight of evidence to the contrary, it is not the duty of this court to disturb it.

The judgment should be affirmed, with costs.


text:
    In the Matter of the Estate of Josephine Patterson, Deceased. Mary A. Mosher, Resp’t; William H. Patterson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Executors, etc.—Accounting—Vacation.
    Where an administrator falsely alleges in his petition for an accounting, that he was the husband of the intestate, the accounting will he vacated for fraud.
    2. Former adjudication—Decree.
    Decree, granting letters of administration, is not conclusive on final accounting as against a party who had no notice of the application or of the facts stated in the petition.
    Appeal from a decree revoking letters of administration and vacating a decree settling administrator's accounts.

      Booraem, Hamilton & Becket, for app’lt; Charles Blandy, for resp't.
   Follett, J.

—A single issue of fact was litigated in the court below,—whether the intestate and William H. Patterson were husband and wife. And it was found that they were not, which result was justified by the evidence, and the finding is affirmed. This issue was necessarily tried and determined in order to ascertain whether Patterson was entitled to the avails of the estate, or whether the mother, brother, and sister of the intestate were entitled to the avails. Two questions of law arise on the record: (1) Whether in this proceeding the surrogate’s court was authorized to revoke the letters of administration ; (2) whether, without revoking these letters, the surrogate’s court could determine that Patterson and the intestate were not married, and that the mother, brother, and sister of the _intestate- were entitled to the avails of the estate. By § 2472 of the Gode of Civil Procedure jurisdiction is conferred on surrogates’ courts to revoke letters of administration, but the last clause of this section provides : “This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute.” Sections 2684 and 2689 provide that letters may be revoked in certain cases, which are not germane to the case in hand. By § 2691 the surrogate’s court is authorized to vacate-letters of administration on its own motion, and without a petition in four cases, but the cause for which the letters were vacated in this, case is not one of the four. Under the facts found, the only section under which these letters could be revoked is 2685, which provides that a “person interested in the estate of a decedent may present to the surrogate’s court from which letters were issued to an * * * administrator, a written petition duly verified, praying for a decree revoking those letters; and that the * * * administrator may be cited to show cause why a decree should not be made accordingly." The section then specifies the causes for which letters may be revoked, and among them is the following: “(4) Where the grant of his letters was obtained by a false suggestion of a material fact.” Section 2686 prescribes how proceed ings shall be instituted for the revocation of letters for causes-specified in § 2685, to wit: “Sec. 2686. A petition, presented as prescribed in the last section, must set forth the facts and circumstances showing that the case is one of those herein specified. Upon proof by affidavit or oral testimony satisfactory to the sur-" rogate of the truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof * *

By reference to the petition it will be. observed that the petitioner did not pray for a decree revoking the letters, but simply for an order vacating the decree entered March 21, 1890, on the final accounting, and that the administrator pay to the mother, brother, and sister the net avails of the estate. The order which was entered upon the petition, the answer, and the affidavit filed in connection therewith, required the administrator to show cause why the decree entered March 21, 1890, on the final accounting should not be vacated, and why he should not pay to the mother, brother, and sister of the intestate all of the proceeds of the estate. It is true that the petition concludes with the prayer for such other and further relief, or both, as to the court should seem just and proper, and the order follows the prayer in the petition, and required the administrator to show cause why the petitioner should not have such other and further relief in the premises as should be just and proper. The petition contains no prayer pursuant to § 2685 for a decree revoking the letters, and the order granted thereon does not require the administrator to show cause why the letters should not be revoked. The order required the administrator ' to show cause according to the prayer of the petition, as required by §§ 2685 and 2686, and there is no hint in the petition or in the order that the proceeding was instituted for the purpose of obtaining a decree revoking the letters of administration. A proceeding to vacate letters of administration is authorized by § 2681, and a proceeding to vacate a final accounting is authorized by § 2481, and the reliefs which may be granted under these sections, in proceedings instituted pursuant to them, are not similar. The rule in chancery was laid down in Colton v. Ross, 2 Paige, 396, as follows: “Where the case made by the bill may entitle the complainant to one kind of relief or anothre, but not both, the prayer should be in the disjunctive. So if the complainant is in doubt whether the facts of his case entitle him to a specific relief prayed for, or to relief in some other form, his prayer, concluding for general relief, should be in the disjunctive. And in such a case, although he is not entitled to the relief speci. fically prayed for, he may, under the gneral prayer, obtain any-other specific relief, provided it is consistent with the case made by the bill. Per Thompson, J., Beebe v. Bank of N. Y., 1 Johns. 529 ; Hiern v. Mill, 13 Ves. 119 ; Wilkin v. Wilkin, 1 Johns. Ch. 117; King v. Rossett, 2 Young & J., 33 ; English v. Foxall, 2 Pet. 595. But if a complainant prays for particular relief, and other relief in .addition thereto, he can have no relief inconsistent with such particular relief, although founded upon the bill.”

1 Daniell, Ch. Pr. (3d Am. Ed.) c. 6, § 4, pp. 7, 382, and cases there cited. In case a petition contains facts entitling the petitioner to two dissimilar kinds of relief, and concludes with a prayer that he have one kind, and for such other and further relief, etc., and the citation issued on the petition follows it with respect to the relief, no relief except that prayed for, and such as is consistent therewith, can be granted. The practice in courts of equity is peculiarly applicable to a proceeding to vacate letters of administration, because § 2742 provides that the jurisdiction of a surrogate’s court to vacate letters must be executed in the manner prescribed by statute, and § 2685 provides that the prayer of the petition shall be for a decree revoking the letters, and § 2636 that a citation must be issued in accordance with the prayer of the petition. Under these proceedings, we think the surrogate’s court was not authorized to vacate the letters, and that the part of the decree which assumes to grant that relief must be reversed.

Had the surrogate’s court power to open the decree settling the final account without first revoking the letters? Section 2481 of the Code provides: “A surrogate, in court or out of court, as the case requires, has power: * * * (6) To open, vacate, modify or set aside, or to enter as of a former time, a decree or oi'der of this court * * * for fraud, newly discovered evidence, clerical error or other sufficient cause. ’’

■ The petition and the order to show cause are entirely sufficient to institute a proceeding to vacate the decree entered on the final accounting for “fraud * * * or other sufficient cause.” The administrator in his verified petition for the final accounting alleged : “That the only person interested in the estate of said decedent * * * as husband, next of kin, or otherwise, together with their places of residence, are, to the best of your- petitioner’s knowledge, information, and belief, as follows, to wit: William H. Patterson, the petitioner herein, the husband of deceased, who resides at No. 464 Eight avenue, New York City.”

The court found that this allegation was false, and that the petitioner was not the husband of the intestate, and was not entitled to any share of her estate, and this finding we have affirmed. This was a sufficient cause for vacating the accounting .for “fraud * * * or other sufficient cause.”' But it is urged in behalf of the administrator that because it was alleged in the petition for letters that the intestate and William H. Patterson were husband and wife, and letters were issued thereon to him, the surrogate’s court is concluded on the final accounting from adjudging that the fact is otherwise, and that he was entitled to no part of the estáte. This contention we do not think can be maintained. To the end that a citation may be issued as provided by § 2728, an administrator, in his petition for a judicial settlement of his accounts, is required to state the names of creditors, of the next of kin, and the name of the husband or wife, of the intestate. On the hearing, “any party may contest the account with respect to a matter affecting his interest in the settlement and distribution of the estate.” § 2728. Section 2743 provides : “Where an account is judicially settled, as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, husband or wife, of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. * * -s Where the validity of a debt, claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same.” The appellant in his petition for letters alleged that he was the husband of the intestate, and her only next of kin, and had the ' respondent appeared in the surrogate’s court on the application for letters, and contested his right on the ground that he was not the husband of the intestate, she would have been concluded from again litigating the question. Caujolle v. Ferrie, 13 Wall. 465; Freem. Judgm. § 319a. But this she did not do, and no citation was issued requiring her to appear, and there is no evidence that she had notice of the application, rpid the question is presented whether under such circumstances she is bound by the adjudication made on issuing the letters. If the issue of marriage had been contested, or an opportunity had been given to the respondent to contest the question, the determination of the surrogate’s court would have been conclusive upon her in a proceeding for distribution ; but it is a principle of law too well settled to require the citation of authorities that no person can be deprived of his property without due process of law, and when a court decides a question adversely to the interest of a person who ought to have been a party to the action or proceeding, but was not, and is not a privy of a party, the judgment is not conclusive upon such person, and he may attack the judgment collaterally. A familiar illustration arises in cases of partition, which are actions quasi in rem. In such a case, if a person having a vested interest in the land is not made a party to the action, although it is alleged and proved on the trial that the persons who were parties were the owners of the entire title, the person who was not made a party may prove his title, and recover his share of the land, as against all the world. So, in the case at bar, the respondent not being a party to the proceeding or the privy of any person who was a party, is not concluded by the letters of administration, but was at liberty, under the sections of the Code and the authorities cited, to contest the question of marriage on the final accounting. Tan Fleet, Goliat. Attack, § 17. The rule contended for by the appellant would make it possible for a person not of kin to an intestate, by alleging in a petition for letters that he was the sole next of kin and entitled to administration, to obtain an adjudication that he was so related and thereby estop the true next of kin from questioning his right to the estate collaterally in an action or in a proceeding to compel distribution among those entitled to the estate.

It should be observed that in this case it was not asserted on the trial in the surrogate’s court that the administrator had failed to account for all of the estate, or had in any way misapplied or misappropriated any part of it, except by claiming and receiving the net avails, and every interest will be protected by setting aside the accounting, and permitting the surrogate to distribute the estate to those entitled. That part of the decree vacating the letters of administration issued to William N. Patterson March 4, 1889, is reversed, and that part of it vacating the final accounting of March 21, 1890, is affirmed, without costs to either party; and the case is remitted to the surrogate’s court, that final distribution may be had among those entitled to the estate.

All concur.


text:
    Thomas J. McKee et al., as Executors, etc., Resp’ts, v. New York Elevated Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

      1. Railroads—Elevated—Injunction.
    An elevated railroad will not be enjoined on condition that it pays the value of the easements taken, where the plaintiff has only a life estate and no power of sale.

      %. Same—Alternative provision.
    An alternative provision in the judgment, requiring the road to condemn the easements within three months, does not give sufficient time for the condemnation proceeding.

      Appeal from a judgment in favor of plaintiffs.

      Arthur O. Townsend, for app’lts; William R. Page, for resp’ts.
   Per Curiam.—

By the judgment the trial judge directed, as the alternative to. the injunction, that defendants pay a certain sum of money, found to be the value of the easements, upon the payme.nt of which they were to receive a conveyance and release of the property or easements affected. It -is conceded that, by the will appointing the plaintiffs executors and trustees, they were given a life estate in the property, without a power of sale. "Under such will, therefore, the trustees or executors have no present power to sell any of the testator’s real estate, and could not, therefore, give the conveyance or release required as a condition for the payment by defendants. The latter have a right to have the alternative to the injunction fixed upon equitable principles, which includes the right to receive a valid title to the easements to be paid for. It is true that three months were also given, within which the defendants had a right to condemn; but with knowledge of the character of such proceedings, and the time which necessarily would be taken up, we think the period fixed,—of three months,— in which to condemn, was too short As they could not, therefore, condemn within that time, we have here a case where an injunction is to issue unless the defendants shall pay a sum, and accept a conveyance or release which would concededly be invalid. The force of this objection is sought to be met by the suggestion that before the injunction goes into operation the plaintiffs will have obtained power to sell the easements, under chapter 209 of the Laws of 1891. By this act, power is .given to the supreme court to authorize the mortgaging or sale of real estate, under certain conditions therein enumerated; but we have grave doubt as to its being applicable to a conveyance or release of easements by trustees, such as plaintiffs here, appointed under a will. It is not, however, necessary for us to determine that question at present, as we think that the rights of the parties • should have been determined by their situation at the time of the entry of judgment; and, when it then appeared that the plaintiffs had no power to give a valid release or conveyance, the court should not have directed them to pay, as an alternative for the injunction, a sum of money. The defendants have had ample time since their road was constructed within which to condemn the property, and, under the circumstances here appearing, the proper alternative would have been to direct that an injunction issue, unless, within a reasonable time, they took condemnation proceedings, and acquired the easements. Our conclusion, therefore, is that' the judgment should be modified by striking out the alternative as to the payment of the money, and receiving the release or conveyance, and by directing that an injunction absolute issue, unless, within six months after the entry of the order upon this appeal, the defendants shall have condemned such easements, with costs to appellants.

All concur.


text:
    Charles Murch, as Administrator, etc., App’lt, v. Western New York and Pennsylvania Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Negligence—Duty op engineer.
    It is the duty of an engineer, upon discovering that a trespasser upon the track is not aware ol' the approach of the train, in good faith to do all that he reasonably can to avert the disaster.
    2. Same—Nonsuit.
    The trial court was held rightly to have nonsuited the plaintiff, as there was no evidence of negligence in the case which would have justified the jury in finding a verdict for him, had the case been submitted to them.
    Appeal from a judgment entered on a nonsuit.

      John H. Hopkins, for app’lt; Frank Runsey, for resp’t.
   Lewis, J.

—The deceased wandered upon the defendant’s track in the city of Rochester, and either fell or voluntarily lay down on the track, and went to sleep. He was intoxicated at the time. He had been seen, a short time before, walking along by the side of the track, staggering like a drunken man. He was run over and killed by one of defendant’s trains of cars, which was running into the city of Rochester upon the track on which the deceased was lying. It was in the middle of the afternoon, and was snowing at the time. The engineer, fireman, conductor and one of the brakemen were upon the engine at the time. There was one other brakeman upon the train, and he was on one of the cars. Si x freight cars composed the train. When the engine had reached a point about 400 to 500 feet distant from the deceased, the brakeman upon the engine discovered an object upon the, track, but was not able to determine what it was. He called the engineer’s attention to it, and he was not able to distinguish what it was until the engine had reached a point about 6 or 8 car lengths of the object, a distance of about 200 or 250 feet, when he discovered that the object was a man. The engineer immediately reversed his engine, gave the signal to apply the brakes, and did everything he could to stop the train, but failed to do so until the engine and two cars had passed over the deceased. There was quite a sharp curve in the track at the place of the accident. The engineer’s place upon the engine was upon the other side of the track from where the deceased was lying. This fact, and the falling snow, probably prevented his seeing the deceased as soon as he otherwise might. The deceased was lying upon the company’s land, between two highway crossings. There is no evidence that the train was running at an improper rate of speed, nor that anything was omitted by the persons having charge of the train to avert the disaster after it .was known that the object upon the track was a man.

It cannot, with any propriety, be claimed that it was the duty of the engineer to slow up or stop his train before he became aware that the object upon the track was a human being. He had the right to assume in the first instance that if it was a man, he would leave the track. When he discovered that the trespasser was not aware of the approach of the train, it was his duty in good, faith to do all he reasonably could to avert the disaster. The plaintiff failed to show that the employes in charge of the tram were guilty of any negligence in its management after they were aware of the peril.

It is suggested by the appellant’s counsel that the brakeman who was shown to have been upon the engine should have been upon one of the cars; that, if he had been, he might have assisted in stopping the train by applying the brake. It was not shown that the brakeman who was on one of the cars had time to apply the brake after the danger signal was given, and before the engine reached the deceased. The plaintiff did not furnish any facts from which the jury would have been justified in finding any negligence on the part of the defendant in failing to stop the train sooner than it did. We fail to find in the case any evidence of negligence on the part of the defendant, which would have justified the jury in giving the plaintiff a verdict, had the case been submitted to them.

The judgment should be affirmed.

All concur.


text:
    Horace A. Reynolds, Individually and as Administrator, etc., Resp’t, v. William Penn Sisson et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Tbusts—Interest.
    A trustee, who improperly retains possession of trust funds, is chargeable with interest.
    Appeal from a judgment in favor of plaintiff.

      William P. Sisson, in pro. per.; Fred E. Storke, for resp’t.
   Lewis, J.

—This action was brought by the plaintiff, as administrator of his mother’s estate, and as the assignee* of the'interest of three of the devisees under the will of Almeron Durkee, deceased, to-terminate a trust arising under a voluntary assignment by the plaintiff’s testatrix, the plaintiff, and the defendants J. Frances Beam, Carrie Beam, Thomas and Horace T. Durkee, to the defendant Sisson, and to compel an accounting by said trustee in respect to his receipts and disbursements under the assignment. The action was referred, and judgment entered upon the report of the referee, and this appeal was taken by the defendant Sisson, and comes here upon exceptions only, no case having been made.

The facts found by the referee, so far as it is necessary that they should be stated for the purposes of this decision, are as follows: One Almeron Durkee departed this life in 1867, leaving him surviving five children. Morton E. Durkee, Celia A. Reynolds, Mary Durkee, Horace T. Durkee, and J. Frances Beam. He left a last will and testament, which was duly admitted to probate, and letters testamentary were granted to William Alexander, the executor, named in the will." The testator gave to his children the use of his estate during their lives, respectively, and, at the death of each life tenant, to the heirs at law and next of kin of such life tenant, A portion of the property devised was the homestead known as the “Durkee Homestead,” consisting of a dwelling house and about seven acres of land, worth $2,000. The affairs of the estate became somewhat involved, and, as a result, a judgment was recovered in favor of Jason Alexander, the administrator of the executor, named in the will, against the five children mentioned, for the sum of $8,216.03. The defendants in the judgment were persons of limited business capacity and ignorant of the proper means to be adopted to arrange for the payment of the judgment. They called upon the appellant, who was a law student, and was afterwards admitted as a lawyer. He resided in their neighborhood, and was a person in whom they all had confidence. They consulted with him as to the best means to be adopted to pay the judgment. The interview resulted in their executing and delivering to the defendant a written transfer and assignment of the entire interest of all the heirs in the estate, with the exception*of that of Morton E. Durkee. The assignment was absolute in its terms, but the defendant gave back a writing, called “a certificate of trust,” which stated in substance that, whereas the persons named had united in conveying to him all their right and interest in said estate, he acknowledged that the assignment was made for the purpose of enabling him to raise the necessary money to satisfy the judgment mentioned, and for the further purpose of obtaining from Alexander an assignment of a judgment which he had recovered against Morton E. Durkee for $2,754.50, and that, after payment to the defendant of a reasonable compensation for his services, the estate was to be restored by the trustee to the parties entitled thereto. These instruments bore date January, 1887. The two judgments mentioned were based upon one and the same cause of action. The defendant Sisson entered at once upon the performance of the trust, taking possession of the estate assigned; and very soon thereafter, with his own funds, he paid $2,258.30, which was the amount of the judgment remaining unpaid after applying a payment made thereon by the defendant Morton E. Durkee out of his own funds, lie caused the judgment to be satisfied of record. The defendant received moneys belonging to the estate amounting to $11,000 or $12,000. He mingled thorn with his own funds; neglected to keep any separate account thereof. He involved the estate in unnecessary litigation; instituted and prosecuted several actions and proceedings which were ill advised, and which resulted in large expenditures of the trust property, and in ultimate defeat of the objects for which said actions and proceedings were instituted and. prosecuted. The trust was fully performed prior to the 1st day of October, 1888. Defendant refused to make any statement of his accounts as trustee, or to give the assignors any information relating to the trust. He, in effect, repudiated the trust created by the instruments aforesaid, and, by dilatory proceedings, hindered and delayed the assignors in their efforts to compel him to render an account. He greatly exaggerated the importance of his services in the execution of the trust, and made charges therefor grossly in excess of what they were reasonably worth. His conduct towards the assignors was hostile and defiant. He claimed that he did not owe them anything, but, on the contrary, that they were indebted to him in a large amount. One of the actions instituted by'him was to partition the Durkee homestead, mentioned in the will. The property was sold under the judgment of partition, and the defendant bid it in upon the sale in his own name, for the sum of $1,200. He very soon thereafter sold it for $2,000. He claimed that he was entitled to the $800 profit, and only accounted for the .sum bid,—$1,200. The referee, charged him, and we think correctly, with the $800. advanced on the sale of the homestead. Holding it as á trustee, he was not entitled to retain to himself the profit made upon the sale. The referee found that there was a balance due from the defendant to the plaintiff of $3,693.30. In arriving at that sum, he charged .the defendant with 6 per cent, interest on annual debit balances, compounding the interest. The defendant complains of this rate of interest, and suggests that the trust agreement did not contemplate investment of the funds, but that the trustee should hold them in hand, so that they would be available for the payment of any costs and expenses which might arise and for the adjustment thereof among the assignors equitably. There would be some force to this claim were it not for the findings of the referee heretofore stated. Having improperly retained possession of the funds and used them for his own purposes, there would seem to be no good reason why he should not pay the usual established rate of interest. Had the money been paid over to the beneficiaries, they, presumably, could have invested it at the legal rate of interest, and they’could have invested the interest from time to time, as it was received by them.

Mr. James Gox had charge, as attorney, of the litigation in which the estate was improperly involved by the trustee. He was familiar with the amount of work done by the defendant in the prosecution of the cases. He was called as a witness, and the defendant sought to show by him the value of his (defendant’s) services. The evidence was excluded, and the defendant excepted. The referee allowed the defendant 5 per cent, commissions upon the amount of money received by him belonging to the estate, which amounted to the sum of $596.50. He did not allow anything for the labor of the defendant in the actions commenced by him, having determined that they were improperly prosecuted. He could not, with any propriety, have found that the defendant’s services were of any value to the estate. Having so determined, no harm resulted to the defendant from the exclusion of the evidence of Mr. Cox. We have examined all the exceptions of the defendant, and find nothing in them calling for a reversal of the judgment. " ,

The judgment should be affirmed with costs.

All concur.


author: Barrett, J.

text:
    Francis A. H. Bergmann et al., Resp’ts, v. Hamilton H. Salmon, Individually, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    1. Appeal—Conclusions op law.
    Where the case does not contain the evidence, the sole question is whether the conclusions of law are supported by the findings of fact.
    2. Pleadings—Relief.
    An erroneous claim by the pleader as to the relief to which he deems himself entitled, does not preclude the court from giving the party the relief to which he is entitled by the facts stated.
    3. Same.
    Relief, incident to an innocent transaction, should not be given upon a theory justified only by its guilty character.
    4. Same.
    Where the defendant denies in his answer that he holds securities individually, the fact that, on the trial, he admitted their invalidity and can-celled them, cannot prevent a decree for the delivery of the cancelled instruments to the plaintiff.

      E. W. S. Johnston, app’lts; Lloyd McKay Garrison, for resp’ts.
   Barrett, J.

—The plaintiffs here are not barred by the framework of their complaint from obtaining such relief as they are entitled to upon the facts found.

It is true that they demand judgment, declaring the transactions set forth in the complaint to be usurious. But they also demand other and further relief, and especially that they be decreed to be entitled to all money due or to become due on account of a certain policy of life insurance issued by the defendant company, and that said defendant company be directed to recognize such ownership and to pay over to them all moneys now due or to become due on such policy.

The appeal comes up on exceptions to the conclusions of law. The case does not contain the evidence, and, consequently, the sole question is whether the conclusions of law are supported by the findings of fact.

The complaint sets out a long series of transactions, originating with a loan of $1,000 in the month of August, 1888, evidenced by a promissory note and secured by an assignment of the policy in question. This note was made by the plaintiffs, payable to Salmon six months after date, with interest. It was renewed in February, 1889; again in August, 1889 ; and again in February, 1890.

Upon each renewal the policy was again assigned to Salmon as security. The plaintiffs never saw Salmon, and the business was done with a broker named Steers. When the loan was originally made, they signed a paper directed to Salmon, instructing him to pay the one thousand dollars to Steers. Salmon did so, but Steers only accounted to the plaintiffs for $950. Bach time that the note was renewed the plaintiffs paid Steers $80. This is alleged to have been for interest, additional commissions, brokerage aiid expenses, but there is neither allegation nor finding that Salmon agreed to or did receive, at these respective times, anything more than lawful interest. When the renewal note of February, 1890, matured, Salmon was dead, but the plaintiffs wore unaware of that fact. Thereupon, Salmon’s son, the present defendant, Hamilton H. Salmon (who bore the same Christian name as his fattier), evidently concealed from the plaintiffs the fact of his father’s death, and suffered them unconsciously to treat him as their creditor. Ignoring his father’s estate, he took the transaction to himself personally, and procured from the plaintiffs what purported to be another renewal note payable to himself in the original name of Hamilton H. Salmon, and likewise secured by an assignment to himself in this name of the policy in question. This note differed from the renewals taken by Salmon, Senior, in that it was made out for $1,288.43, while all the previous renewal notes were for the amount of $1,000.

Now, it is quite clear, whatever else may be said as to this last transaction with Salmon, Junior, it was not tainted with usury. There was, in hot, no legal relation between him and the plaintiffs growing out of the original transaction, or out of the transaction as it existed at the time of Salmon, Senior’s death. That transaction was represented by the executors of Salmon, Senior. In their answer these executors disclaim this action of Salmon, Junior, for they deny that they “hold the alleged note of $1,288.-43, or said Tontine policy, or divers assignments, or any assignment thereof, as security for said note.’’

Whatever, therefore, might have been the effect of this last transaction with Salmon, Junior, had it been made upon behalf of his father’s estate, it is quite evident that, as a transaction with him, personally, it was without consideration. Nay, more, it was void in its inception, not for usury, but for fraud. The note and assignment were given to Salmon, Junior, by the plaintiffs plainly through a mistake of fact as to his personality. And they were accepted bj^him fraudulently; that is, with knowledge of the plaintiffs’ mistake, and certainly with full knowledge of the rights of his father’s estate. Upon the trial the invalidity of this last note, and of the assignment of the policy given to secure it, was substantially conceded by the defendants. This is apparent from the following finding, made at their request, by the learned justice at special term:

“ Thirty-fifth. That the said last mentioned note and the said assignment of the said policies of insurance last above mentioned were and each of them was produced by the defendants on the trial of this action, canceled, and the same are now canceled and of no force and effect''

There is, therefore, no substance in Salmon, Junior’s, appeal. What matters it to him whether the note and collateral were declared to be invalid upon one ground rather than upon another? The pith of the judgment is that they be canceled, and he says he has already canceled them. But that act of his was done under the stress of the trial. It had not been done when the actian was commenced. In his answer he denies that he holds these securities individually. If he had then admitted that fact, and had offered to cancel them, or had stated that they were already canceled, the trial would have been unnecessary as to him. As it is, he cannot complain of the form of the judgment, nor can he prevent a decree for the delivery of the canceled instruments to the plaintiff. If they are genuinely canceled, it is immaterial to him what is done with them.

As to the judgment against the executors of the estate of Salmon, Senior, we see no reason why, with a modification to which reference will presently be made, it should not be affirmed. It must be conceded that the transaction between Salmon, Senior, and the plaintiffs was not usurious. There is no direct allegation in the complaint of a usurious agreement. Nor is any such agreement found as matter of fact. The relief granted, as against the executors, proceeded not upon the theory that the securities were vitiated by usury, but upon a principle applicable even though they were entirely valid — namely, that upon paying them all that the estate of Salmon, Senior, was entitled to, the plaintiffs should, have a return of their securities. For it seems that while Salmon, Senior, lived, the original notes were not returned when the renewals were given. So that he had in his possession several instruments representing the same transaction. This relief was appropriate to the case made by the complaint and by the findings of fact The plaintiffs were not estopped by the prayer for relief, even if it had been limited to a prayer that the instrument be declared to be usurious. Still less when they asked for other and further relief, and especially that they be decreed to be entitled to the moneys payable, upon the policies, by the insurance company. They charged, it is true, that the notes and renewals were made “ fraudulently, corruptly and usuriously,” but they stated no fact inconsistent with Salmon, Senior’s innocence. Nor was any such fact found by the special term. Not having alleged a usurious agreement, these adverbs were mere characterization. Omitting them, as such, the plaintiffs were entitled to the relief granted, though not to the precise relief claimed. It is well settled that an erroneous claim by the pleader as to the relief to which he deems himself entitled does not preclude the court from giving the party the relief to which he is entitled by the facts stated,” Chatfield v. Simonson, 92 N. Y. 218.

Upon these facts, we think it clear that the executors were entitled to the full one thousand dollars loaned by Salmon, Senior. It was error to allow them but $950. If they were entitled to but $950, it was necessarily because the transaction was usurious. But, as we have seen, there was nothing in the complaint or findings of fact to justify such a conclusion. And it was illogical to give relief incident to an innocent transaction upon a theory justified only by its guilty character. The interest, however, was properly allowed, not from the date of the original loan, but from the date when interest was paid upon the last renewal note of $1,000. The learned justice has found as a fact:

“XXL—That full interest on note of August 18, 1888, and on each renewal thereof, was paid by or on behalf of plaintiffs to and including August 7, 1890.”

The judgment, as against the executors, should accordingly be modified by requiring the plaintiffs to pay them, as a condition of the relief granted, the full sum of one thousand dollars, with interest thereon from August 7, 1890, to the date of payment. It should, also, be modified by striking out the provision requiring these exécutors to furnish to the plaintiffs a certificate of the issuance to them of letters testamentary, and of their qualifications and continuance as such executors.

The judgment as against Salmon, individually, should also be modified, by simply adjudging the instruments in his possession to be void, and requiring him to deliver them up to the plaintiffs, canceled as they were when produced upon the trial.

No costs of this appeal to either party.

Van Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    Frank S. Gray, App’lt, v. Augustus D. Shepard et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

      1. Master and servant—Discharge.
    The retention, by an employe, of a letter written to him by his employer, when demanded, for the purpose of blackmail, justifies the latter’s discharge.
    2. Same—Demand of letter.
    A master may rightfully demand the return of a letter, written by him to his servant with regard to the business in reference to which the latter was employed, except so far as its retention may be necessary for his justification.
    Appeal from judgment entered on the verdict of a jury and from an Order denying the motion for a new trial.

      A. J. Dittenhoefer, for app’lt; Noah Davis, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for plaintiff’s wrongful discharge from employment by the defendants’ testator. On the 18th of April, 1888, the plaintiff and Elliott F. Shepard, who died since the trial of this action, entered into a written agreement, by which the plaintiff agreed to remove with his family from Chicago to New York to enter Mr. Shepard’s service in connection with the publication of the Mail and Express newspaper; to devote his whole time, Sunday excepted, to the paper ; and to fill such places and have such titles, from time to time, as Mr. Shepard might wish, whether managing editor, publisher of the weekly, publisher of the daily, general manager of one or both, or assistant in any of these departments, or all of them, etc. The employment was for five years from May, 1888, ■and the compensation was to be $6,000 a year for the first two years, and during the last three years, in addition to receiving the same salary, he was to be credited each year with the sum of $5,000 as installments on the purchase price of an undivided one-tenth interest in the paper.

The said contract contained the following clause: “For any dishonesty, incompetency, incompatibility, or breach of this agreement, of or by Mr. Gray, Mr. Shepard shall be at liberty to annul it, and thereupon it shall cease and determine, and all obligation thereunder on the part of Mr. Shepard be canceled forever.”

The plaintiff moved to Hew York on the 7th day of May, 1888, • entered upon the discharge of his duties, and continued in Mr. Shepard’s service until the 4th of January, 1890, when he was discharged; and the question involved upon the trial of this cause was whether such discharge was justifiable or not.

Evidence tending to show various acts of insubordination was given upon the part of the defendant, and the case having been submitted to the jury, they found a verdict in favor of the de-" fendant; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, this appeal is taken.

Various grounds of error have been brought to our attention upon this appeal, among which were the charge of the learned Judge in respect to fhe conduct of the plaintiff as to a certain letter written by Mr. Shepard to the plaintiff in respect to advertising to be obtained from the Police Department. It would appear that Mr. Shepard was desirous of obtaining certain advertising from the department, and wrote a letter, enclosing a check of $5,000 to the plaintiff Gray. Gray did not use the check for the purpose for which it had been sent him, but deposited the same to his own account in bank. Shepard and Gray had a conversation in respect thereto, in which Mr. Shepard asked Mr. Gray: “Did you get that check and letter?” Mr. Gray said: “Yes.” Shepard said: “I do not know whether you can get it done or not, but we have got to have prestige and get political advertising.’’ He said: “Our relations are so confidential that you burn that letter up. You ought not to tear a letter up like that, and throw it around, but burn it up.” Gray further testified: “He asked me what I had done with the check, and I said I had deposited it with the Hational Park Bank. He was very much incensed by that; I told him the money was waiting for him, and I would give him a check any time he desired.” On the 27th of September, 1888, the plaintiff gave to Mr. Shepard á check for the $5,000 which had been received by him. Subsequently, after the return of the money, Shepard had a conversation with the plaintiff in respect to the letter, during which request for the delivery of the letter by Shepard to Gray was made; to which Gray replied that he had torn up the letter and thrown it away in the scrap basket—whereas, the fact was that he did not destroy the letter, but kept the same, and subsequently attempted to use it as a club against Shepard. In respect to this letter, the learned judge having called the attention of the jury to the discrepancies in the statements of the conversations of the parties in respect thereto, charged as follows : “They differ as to what took place, and differ widely as to whether or not any claim was made for the restoration o£ this paper prior to the discharge which occurred on January 4th, 1890. According to Mr. Gray’s testimony, the paper was given to him by the defendant, as his manager. Whatever its contents, or whatever its purpose, it was given in the course of the employment, and the master would have the right afterwards to demand that, or any other paper which he had intrusted to his employee, and he would have no right to refuse it. That which the master has a right to demand, if it shall be refused by the employee, is necessarily a breach of the agreement existing between them.” To this portion of the charge an exception was taken ; and it is claimed that this was error, upon the ground that the recipient of a letter is the absolute owner thereof, and may keep, destroy or dispose of it in any way he pleases, excepting only that he has no right to publish it. In respect to the ground upon which the learned .judge placed his charge, it is urged that the rule applies in the case of principal and agent and master and servant, when the letter has reference to the subject matter of the agency as well as in any other case. It is also urged that when a principal requires that his agent do a certain thing, the letter may be the only evidence of his authority. If he is requested to do an improper act, it would be his only protection against a charge by the principal that the wrongdoing was notat his request. These propositions would be undoubtedly true if they were borne out by the facts which were brought out upon the trial. If the plaintiff in this action had done anything upon the strength of this letter, then, within the principles laid down in the case of Evans v. Van Hall, Clark 22, he might have insisted upon the retention of the same as the evidence of his authority so to act on behalf of his employer. But, in the case at bar, the plaintiff had done nothing except to deposit the check which had been enclosed wdtli the letter to his own account, and after the return of that money he refused to return the letter, alleging that it had been destroyed, when he well knew that it had not; and, from his subsequent acts, he evidently intended to retain the same, in order that he might coerce Mr. Shepard in respect to his future action. Under this state of facts, it is difficult to see how a servant can retain anything in which his master has an interest without a breach of the duties which existed. . The plaintiff in this action, as has been already stated, had no reason to retain this letter as a justification for anything that he had done, because he had done nothing. The whole matter had been closed by a return of the money, and he had no further interest in the letter except such as might be an unlawful one; and all papers connected with the business in reference to which he was employed belonged to his employer, who had a right to demand the same, except so far as their retention might be necessary for his justification. The retention of this letter upon the part of the plaintiff showed a preconceived design to use the same for the purpose of blackmail; and, under these circumstances, its mere retention for such purpose, which is proved beyond all question, was a breach of his duty towards his employer, which could be set up at any time in justification of his discharge. In this connection it is urged that the charge carried with it a refusal to submit to the jury the question whether the offense, if there was any, was condoned by the defendant. Even if there were any evidence of condonation, which it is somewhat difficult to discover, there was no such request made to the court. Its attention was not called to the question of condonation. A simple, plain exception to the charge was taken, without any suggestion that there was any phase'of the case which might make it proper to submit to the jury the question as to whether or not the offense had been condoned. Under such a condition of the record, the plaintiff is not in a position to claim that the charge, as delivered and excepted to, embraced a refusal to submit the question of condonation. If any such point was to be insisted upon, it was the duty of the counsel to call the attention of the court to that feature of the case; and then, if the court refused to make a proper charge in respect thereto, it might bring up a question for consideration.

During the progress of the trial the plaintiff attempted to show a conversation which he had with Shepard in regard to the meaning of the word “ incompatibility,” which was excluded. And it is urged that this was reversible error. We think that probably the plaintiff had the right to introduce this evidence in order to show the interpretation which the parties had placed upon the word in question, which is not of so definite a character as to preclude evidence of a discussion as to its meaning prior to its insertion into the contract. But, notwithstanding this error, we do not think that there is any ground for a reversal of this judgment, for the reason that the conceded facts, in respect to the letter above referred to, show that, as matter of law, the plaintiff had been unfaithful to his employer, and had secretly retained the papers in his possession by force of which he thought he might be able to swindle him; and it was with this purpose in his heart that he went on rendering such services as he did until he was finally discharged. This condition of mind is not one which an employer has a right to have exist in an employee. This secret intention to swindle his employer, when the oppor-' tunity offered, was clearly a breach of his contract of employment.

There are one or two other points which are raised upon this appeal, but they are not of sufficient importance to justify discussion. Upon the admitted facts, therefore, as a matter of law, the plaintiff had broken his contract of employment, and Shepard was justified in his dismissal

The judgment and order appealed from should be affirmed, with costs. Barrett, J., concurs.


text:
    Benjamin W. Jones, Resp’t, v. Henry J. Newton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June, 1894.)

    1. Guaranty—Original.
    Guaranty of one’s own debt is not a collateral, but an original, undertaking.
    3. Same.
    " In an action for goods sold and delivered, the defendants were held as principal debtors, and not as mere guarantors.

      3. Evidence—Conclusions.
    Questions, which call for evidence embracing the whole merits of the case, and leaving nothing for either court or jury to decide, are incompetent.

      E. H. Benn, for app’lt; W. L. Snyder, for resp’t.
   Barrett, J.

—Upon the uncontradicted testimony in this case a verdict was properly directed for the plaintiff. The goods were delivered to Van Grelder upon the defendant’s original undertaking. Credit was given solely to the defendant and the goods were charged to him. The goods were sold in 1891. The course of dealing between the parties was as follows: Upon the delivery of the goods to Van Grelder, the latter receipted therefor. A bill was then made out to Newton. This bill (accompanied with Van Gelder’s receipt) was sent to Newton, who wrote across its face, “Payment guaranteed; H. J. Newton.” This course of dealing had continued for four years. It originated after the failure of Van Gfelder Bros. That firm, in the year 1887, made an assignment to Newton, who was willing to help them. As they had no credit and wanted goods, Newton told the plaintiff’s agent, one Sharts, that he would guarantee sales made to them by the. plaintiff. Accordingly a sale was made. The first bill was charged to Van Gfelder Bros., and the defendant, in execution of his guarantee, was required to and did give his note for the amount thereof, payable _ in two months. The bill read : “ Terms, 60 days’ note of Henry J. Newton.” The correspondence with regard to this transaction settled all future questions as to whether the defendant was to be a guarantor or an original undertaker. Sharts wrote to Newton on the 25th of May, 1887, as follows:

“Mr. Henry J. Newton, 436 West 16th street, New York:
“ Dear Sir.—The writer (after seeing you last Monday) called on Van Grelder Bros., and reported to them the result of our interview. They are anxious to get the skins from me with as little delay as possible, so if you will be hind enough to sign the inclosed note for $308.70, and return it to me, Van Odder can obtain the goods at once. Please fill in on the note where you want the note made payable, i. e., at what bank. Your attention to the above will oblige,
“Yours very truly,
“B. W. Jones—F. H. Sharts.”

To this Newton, on the next day, sent the following answer :

“ Mr. B. W. Jones :
“Dear Sir—Yours, with bill of goods to Van Gfelder Bros., came to hand this morning. My understanding with the gentleman from your house who called on me was that the goods should be billed to 'me, and in future you will please bill all goods delivered to Van Gelder Bros, to me, and send me bill when delivered.
“Very respectfully yours,
“ Henry J. Newton.”

Sharts replied May 27, 1887, as follows:

“Henry J. Newton, Esq., 430 West 16th street, New York:
“Dear Sir.—Your favor of the 26th inst. received with note at two months from the 26th of May (due July 29th) for three hundred and eight .70 dollars in settlement of bill for salted skins, dated May 25th. I have made out the invoice in your name, instead of Van Grelder Bros., and inclose it herewith. The two casks of skins were delivered to Van Grelder Bros, this day. Thanking you for the note, I remain,
“Yours very truly,
“B. W. Jones—E. H. Sharts."

Thereafter all bills were made out directly to the defendant, and the goods, as delivered from time to time to Van Grelder Bros., were charged to him.

Charles Van Grelder went out of the firm of Van Grelder Bros, on the 1st of February, 1888, and thereafter the same course of dealing proceeded with regard to Henry Van Grelder. This also is evidenced by the defendant’s letters. Thus, in July, 1888, he wrote to the plaintiff as follows:

“New York, July 23d, 1888.
“Mr. B. W. Jones :
“Dear Sir—As I expect to be out of town most of the time until Sept. 1st next, you will please let Mr. Henry Van Grelder have such goods as he may require to successfully carry on his business during my absence, and I will be responsible for the same.”
“Yours very respectfully,
“Henry J. Newton.”
And again, in July, 1889.
“New York, July 17th, 1889.
“B. W. Jones, Esq.:
“Dear Sir.—This is to certify that" during my absence from the city you are authorized to furnish Mr. Henry Van Grelder with goods in his line as heretofore, for which you may consider me responsible, as usual. On my return to the city I will notify you, and then a return to the ordinary method will be in order.
“Yours respectfully,
“Henry J. Newton.”

Upon each of the twenty-six bills sold in 1891, which form the subject of this action, the “return to the ordinary method” is evidenced by these undisputed facts: That each bill was made out and rendered to H. J. Newton, was accompanied by Henry Van Grelder’s receipt, and was identified and approved by the words, “Payment guaranteed, H. J. Newton," written across its face by the defendant.

It is clear, upon this state of facts, that there was nothing to go to the jury, and that the defendant was liable upon his original undertaking. He chose to bind himself in that manner rather than give his note each time that Yan Gelder purchased a bill of goods.

He knew that a guarantee meant the giving of his note before the plaintiff would trust Yan Gelder with the goods'. This was evidenced by Sharts’s letter with regard to the first purchase. To avoid that inconvenience he deliberately chose the obligation of a direct sale to himself with sixty days’ credit. His present claim, therefore, that he was a mere guarantor is both disingenuous and frivolous. He was clearly liable for every bill made out in his name which, when sent to him, was accepted, such acceptance being evidenced by the words, “payment guaranteed, H. J. Newton,” written across the face thereof.

The direction was, therefore, right.

As to the rulings upon evidence, we think the court committed no error. Yan Gelder was asked whether he or Newton purchased the goods, whether they were purchased for him in his business or for Newton ; whether Newton had any interest in his business; whether he was acting as Newton’s agent; whether the goods were charged to him or to Newton; whether he was authorized to purchase for Newton, and a host of similar questions. Newton, too, was asked whether he ever purchased any goods of plaintiff, and, whether he had any interest in Yan Gelder’s business.

All these questions were properly excluded. Many of them involved mere conclusions. The object could only have been to induce the witnesses to deny the legal effect of the documentary evidence. Not a question was asked calling for any conversation, agreement or actual transaction between the parties; nothing suggestive of a new or different arrangement from that evidenced by the defendant’s own signature. It is clear that the defendant could not, in the way attempted by these questions, vary the conclusive effect of the j-eal transaction. We are referred to a class' of cases where the admission of what, upon the surface, might seem to be conclusions ‘of witnesses was sustained. Caspar v. O'Brien, 47 How. 80 ; Sweet v. Tuttle, 14 N. Y. 472 ; Knapp v. Smith, 27 N. Y. 281, 282.

In these and similar cases, however, the question admitted had no direct relation to the subject of the inquiry. Thus, in Caspar v. O'Brien, the question was as to the fact of naked ownership at a particular time, while, as the court said, “the issue to be determined by the jury involved the bona fides of the possession and ownership at the time of the loan made by the plaintiff.” In each of the cases the witness was permitted to testify tb some particular fact actually within his knowledge, not to his conclusion from such fact The questions here attempted to be put “were,” as Judge Freedman said in Caspar v. O’Brien, supra, “subject to'the criticism that they or either of them embraced the whole merits of the case, and left nothing for either court or jury to decide.”

As to certain other questions, not necessary to be enumerated, they were either incompetent or immaterial. It was, for instance, quite immaterial whether Yan Gelder was acting as Newton’s agent, or acting for himself with Newton’s support. The fact was that Newton lent Van Gelder his credit, and that he made himself responsible for the purchases. As to the question put to Van Gelder, “What was your arrangement with Mr. Jones when you purchased the goods of him ?” It is enough to say that the witness testified that originally he made no arrangement with Jones, that he was ashamed to go to him, and that the arrangement was made directly between Jones and Newton. There was no suggestion of a different arrangement with regard to the goods in question, nor was it intimated that the inquiry related to a new arrangement. If the defendant, by any of these questions, intended to show any variation in the existing agreement, he should certainly have avowed his purpose and put his questions accordingly. But, even if he had avowed such a purpose, we think the questions as put were still improper. We may add that the only time the defendant’s counsel hinted at the possibility of a somewhat different arrangement the court said: “If he (the defendant) can testify to a conversation with the plaintiff’s agent, that is all very well. He may do so.” But no such conversation was asked for.

The use of the words “payment guaranteed” upon the bills made out to the defendant did not tend to vary the original undertaking or to turn it into a guarantee. That was simply the form used to express approval of each particular transaction. It amounted to nothing more than the defendant’s guarantee of his own debt, which, under the authorities, is not a collateral, but an original undertaking. Fowler v. Wool, 35 Barb. 143: Brown v. Curtiss, 2 N. Y. 225 ; Cardell v. McNiel, 21 N. Y. 336; Johnson v. Gilbert, 4 Hill, 178.

There was nothing in the conversation between Van Gelder and the plaintiff, wherein the former asked advice as to whether he should continue in business, which affected the transaction. Jones then made no agreement to extend the existing credit or to change the existing relation of the parties. He neither said nor did anything which could prejudice the defendant He was simply asked for his advice as to whether Van Gelder should go on. His answer was that Van Gelder ought to be the best judge of what he should do. Finally, when pressed, he asked Sharts what he thought, and when Sharts answered, “I think he had better go on,” the plaintiff added, “Well, I do, too.” The contention that the defendant was entitled to notice of this conversation from Jones, and was in some way defrauded because such notice was not given him, is hardly worthy of consideration.

The judgment appealed from, - and the order denying the defendant’s motion for a new trial, should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concur.