text:
    Moses Hertz, Resp’t, v. Clara Minzesheimer, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    "Witness—Impeachment—Contradiction.
    Testimony, to show the contradictory statement of a witness out of court, is properly excluded, if it calls for the whole conversation, and not merely for so much as is necessary to prove the contradiction.
    Appeal from a judgment of the city court, affirming a judgment rendered on a verdict in favor of plaintiff, and an order denying a motion for a new trial.

      Joel M. Marx, for app’lt; J. C. Julius Langbein, for resp’t.
   Bischoff, J.

This action was brought to recover an agreed compensation for services rendered by plaintiff, as broker, in the exchange of defendant’s property. The sole issue presented by the evidence was whether the defendant had promised to pay plaintiff $500 should the property received in exchange be of the value of $30,000 which it concededly was, or whether one-half of 1 per cent, upon such value was the commission agreed upon which amount had been actually paid. As a witness for the plaintiff, Minna Hertz, his wife, was called, and testified that the promise to pay $500 was made in her presence. Upon cross-examination she testified, in answer to defendant’s counsel: “Idid not see her [Mrs. Seligman] in Newark for over a year before this exchange took place. I did not tell Mrs. Seligman that my husband did not make much this exchange; that he was to get only one-half of one per cent, for it.” Subsequently Mrs. Seligman was called for the defense, and, after stating the time and place of a certain conversation between Mrs. Hertz and herself, was asked to state what that conversation was. The testimony was objected to, as “incompetent, irrelevant, and immaterial, the plaintiff not having been present” Defendant’s counsel stated that it was offered for the purpose of contradicting Mrs. Hertz, and for the purpose of impeaching her credibility. Plaintiff’s counsel then expressly renewed his objection as above, and further objected “that the testimony of Mrs. Hertz on that point was brought out by the defendant on cross-examination.” The objection were sustained, and exception was duly taken. Upon this exception alone the judgment is assailed, there being nothing in the record which could ■present other points for this court to review. The evidence excluded was offered to impeach Mrs. Hertz’s particular credit as a witness in this action, and for such purpose, had the question put to the impeaching witness been properly framed, it would undoubtedly have been admissible, Effray v. Masson, 42 St. Rep. 657, and the presence or absence of the plaintiff at the time when the statement was made would have no significance in the matter, Frankel v. Wolf, 7 Misc. Rep. 190; 57 St. Rep. 536; Briggs v. Wheeler, 16 Hun, 583 ; nor would the fact that the testimony of Mrs. Hertz had been brought out on cross-examination have been a proper ground for exclusion. It is essential to the introduction of the impeaching witness’ testimony that the witness sought to be impeached should be interrogated concerning the inconsistent statement alleged to have been made out of court with reasonable certainty and precision, and this, necessarily, on cross-examination. Crane v. Hardman, 4 E. D. Smith, 448 ; Everson v. Carpenter, 17 Wend. 419 ; 1 Rice Ev. p. 622; Doherty v. Lord, 8 Misc. Rep. 227; 59 St. Rep. 445 ; Sloan v. Railroad Co., 45 N. Y. 125. The questions allowable for such purpose on cross-examination are not to be confined to such as relate to the immediate matters testified to by the witness upon the direct examination. Kinner v. Canal Co., 52 Super. Ct. Rep. 163. It is requisite only that the testimony to be elicited has a direct bearing upon the.testimony given upon the direct examination, and is material to the issue involved in the trial. Sitterly v. Gregg, 90 N. Y. 686 ; Abb. Ev. 717.

In support of the ruling below, respondent’s counsel contends that the witness Mrs. Hertz had not been interrogated concerning her alleged contradictory statement with sufficient certainty and precision, and that, therefore, the basis of the introduction of the testimony offered and excluded was wanting. The practice in such cases is, in a measure, within the control and discretion of the trial court, Sloan v. Railroad Co., supra; but in view of Mrs. Hertz’s denial of having met Mrs. Seligman in Newark at any time within a period covering the date of the alleged conversation,, and her further denial of having had any such conversation, we-cannot see that further inquiry on the part of the defendant’s counsel could have materially quickened the witness’ appreciation: of the matter concerning which it was proposed to contradict her. The inquiry sufficiently identified the time and place when and where and the person with whom the alleged conversation was had. Pendleton v. Dressing Co., 19 N. Y. 13.

Were we to confine our consideration to the points argued by counsel, a reversal of the judgment upon this exception would result, but support for the ruling is to be found in the nature of the question whereby the evidence excluded was sought to be elicited. This question called for the whole conversation had with the principal by the contradicting witness, and, as framed, could, well have elicited testimony obviously inadmissible as hearsay.

As was said by Church, C. J., in Sloan v. Railroad Co., supra,. with regard to such testimony:

“ The usual and most accurate mode of examining the contradicting witness is to ask the precise question put to the principal witness. Otherwise hearsay evidence, not strictly contradictory, might be introduced, to the injury of the parties and in violation, of legal rules.”

And it was consistently held in Pence v. Waugh (Ind. Sup.), 34 N. E. 860, that the question addressed to the impeaching witness should be so shaped as to .admit of “Yes” or “No” for an answer. See Underh. Bv. 509.

The grounds stated by the objecting party, and reiterated after the statements made by the defendant’s counsel, touching the purpose of the examination, clearly presented the point, and thus the exclusion is to be given support upon the ground specified. Tooley v. Bacon, 70 N. Y. 34. That counsel further specified a ground which was not tenable is no justification for a reversal of the judgment. The main objection was reiterated, and there was no such element of a misleading of his adversary by the objecting party in this case as there was in Briggs v. Wheeler, supra, where, upon such a ground, the exception was sustained. Here the defendant’s counsel appeared merely to have mistaken the force of an availing objection.

The j udgment must, therefore, be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    James T. Hall, as Receiver, etc., Resp’t, v. Holland House Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Receiver—Appointment.
    Where it conclusively appears that an action is prosecuted by certain-stockholders of an insolvent foreign corporation doing business and. having assets within this state, the courts of this state will intervene to preserve the assets within their jurisdiction for the protection of domestic creditors, by means of the appointment of a receiver.

      3. Pleading—Counterclaim—Receiver.
    In an action by a receiver of a foreign corporation to recover a debt due it, a note made by the corporation is not available as a set-off, under §§ 501, 503 of the Code.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.

      Joseph Kling, for app’lt; Lachman & Baumeisler, for resp’t.
   Bischoff, J.

Upon the trial it was admitted that on September '27, 1893, there was due and owing from the defendant to the James T. Hall Company, a corporation created by the laws of New Jersey, $589.85, with interest, for work, labor and services rendered, and materials furnished, at the defendant’s instance and request. It was further admitted that in an action determined by this court, wherein Edward K. Milligan and James T. Hall were plaintiffs and the James T. Hall Company was defendant, the plaintiff herein, on October 11, 1893, by an order of that date, was appointed temporary receiver, and, by judgment recovered November 1, 1893, permanent receiver, of all the assets of said corporation which were within this state, and that the plaintiff, in each instance, had duly qualified as such receiver. The contention thereafter was with reference exclusively to the defendant’s counterclaim, and claim of set-off, of an admitted debt of the James T. Hall Company to one Mary J. Van Doran, which arose upon a promissory note, and was acquired by the defendant before the commencement of this action, but subsequent to October 11, 1893, and which did not mature until October 16, 1893. The learned trial justice ruled against the allowance of the counterclaim and set-off, and directed judgment for the plaintiff in the amount conceded to be due and owing from the defendant.

The validity of the plaintiff’s appointment as receiver is attacked upon this appeal. From the judgment roll of this court, however, which, though it was not in evidence upon the trial, we are permitted to consider in support of the judgment appealed from, 12 Am. & Eng. Enc. Law, p. 138; Dunham v. Townshend,, 118 N. Y. 286; 28 St. Rep. 864; Baylies, New Trials, p. 161, and cases there collated, it conclusively appears that the action was prosecuted by certain stockholders of the James T. Hall Company, an insolvent foreign corporation doing business and having assets within this state, but no officers empowered to hold such assets. Abundant authority appears for the intervention of the courts of this state, in such cases, to preserve the assets within their jurisdiction for the protection of domestic creditors, by means of the appointment of a receiver. Code Civ. Proc. § 1810, subd. 3; Id. § 1812; 8 Am. & Eng. Enc. Law, p. 408; 20 Am. & Eng. Enc. Law, p. 275; High, Rec. § 305, etc. ; Redmond v. Hoge, 3 Hun, 171.

No error is to be predicated of the refusal of the learned trial justice to allow the debt of the James T. Hall Company, assigned to the defendant, as a counterclaim in this action. The Code of Civil Procedure (sections 501, 502) enables a defendant sued in an action on contract to avail himself of any other cause of action also arising on contract, and existing at the time of the commencement of the action, as a counterclaim; but the defendant’s cause of action must be one against the plaintiff, or the person whom he represents or for whose benefit the action is brought. Obviously, the cause of action here urged as a counterclaim was not one against the plaintiff, and since the plaintiff, as receiver, represents only the domestic creditors of the James T. Hall Company, it was not one against the person or persons whom the plaintiff represented, or for whose benefit the action was brought. Osgood v. Ogden, *43 N. Y. 70, 83; Decker v. Gardner, 124 N. Y. 334; 36 St. Rep. 267. “ Equality in the payment of debts by a receiver is the rule of law, unless, by diligence, or for some special reason, a preference is declared by one creditor, or of one class, over creditor generally.” Clark v. Brockway, *42 N. Y. 13, 14; 1 Abb. Dec. 351. And the appointment of the receiver relates back to the time of the commencement of the action brought to that end. Id.; 22 Am. & Eng. Enc. Law, p. 310, and cases collated in note 1. In the case at bar the defendant’s demand was not acquired by it, and did not mature until after the plaintiff’s appointment as re ceiver, on October 11, 1893, both events being after the maturity of the James T. Hall Company’s demand against the defendant. As an equitable set-off, therefore, the defendant’s demand was not available, because its allowance as such would operate to prefer the defendant, as well as its assignor, over the creditors of the James T. Hall Company. Clark v. Brockway, supra ; Van Dyck v. McQuade, 85 N. Y. 616; Fera v. Wickham, 135 N. Y. 223 - 47 St. Rep. 866; High, Rec. § 249. Judgment appealed from should be affirmed, with costs.

All concur.


author: Daly, C. J.

text:
    John Howard, App’lt, v. John A. Molleer, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 15, 1895.)

    Pleading—Amendment.
    Upon an appeal from an order allowing an amendment of the complaint, a statement in the opinion of the general term of the New York City court that a certain case “is decisive upon the question of terms,” and that the amendment should he allowed on payment of costs, does not indicate that the court did not exercise the discretion conferred by section 539 of the Code.
    Appeal from a judgment of the city court, affirming an order allowing an amendment and imposing costs.

      Spellissy & Gray, for app’lt; Johnston & Johnston (Edward W. S. Johnston, of counsel,) for resp’t.
   Daly, C. J.

The city court at special term allowed an amendment of the complaint on payment by plaintiff of $30 costs, and upon appeal the general term of that court imposed as terms of amendment the payment of all costs to date. This appeal is argued upon the assumption that the general term held that it had no discretion as to terms of amendment, and the argument is based upon the opinion of the court as follows: “We think the case of Walton v. Mather, 10 Misc. Rep. 216; 63 St. Rep. 380, is decisive upon the question of terms, and that the order appealed from should be reversed, with costs, and amendment allowed upon payment of all costs to date.” Nothing, however, contained in the order appealed from indicates that the court did not exercise the discretion conferred by the Code (section 539,) which permits amendments of pleadings in the discretion of the court upon such terms as it deems just ;■ and, if we are permitted to search the opinion of the court for error upon which to reverse, we nevertheless are unable to say that the phrase used by the general term fairly implies a surrender of discretion. The appellant is quarreling with a mere mode of expression, which, after all, does not necessarily bear the construction he contends for. The expression, “ We think a certain case decisive upon the question of terms,” simply states an opinion that upon the same state of facts the decision as to the propriety of terms should be the same, which is a very fair exercise of discretion by the court in disposing of the case, as tending to the greater certainty of practice and consequent safety of litigants. The order is affirmed, with costs and disbursements.

All concur.


author: Bookstaver, J.

text:
    Thomas J. Canavan, by Guardian, etc., Resp’t, v. Robert Van R. Stuyvesant et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Negligence—Contributory—Child.
    Where the parents allow a child to play in a place which they know to be dangerous, they are guilty of contributory negligence, which will prevent it from recovering for the injuries sustained.
    2. Same—Non sui juris.
    Where a child is non sui juris, the negligence of its mother will be imputed to it.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      J. Langdon Ward, for app’lt; John Jeroloman, for resp’t.
   Bookstaver, J.

Upon the former appeal of this case, 7 Misc. Rep. 113 ; 57 St. Rep. 513, we expressed the opinion that the complaint was properly dismissed upon the first trial so far as the first cause of action was concerned, and nothing appears in the record upon this appeal to change the view we then took. With the change in the evidence, the reasons for our conclusion have changed, but the result is the same. Upon examining the evidence on this trial, it appears that the broken or westerly door was down, and the easterly one was up. The hole in the broken door was about nine by twelve inches in size, and into this the boy stepped as he was crossing the door, “kind of on an angle,” and fell into the cellar, not through the hole, but through the door that was open. The inference from this is that neither the hole nor the open door alone would have been enough to cause the injury. Without the hole, however, (ft>r which, it would seem, defendants were responsible), the accident would not have happened and that would seem to fix upon them liability for that part of the damage if nothing else appeared. But the record also shows that the father of the plaintiff knew of the hole in the door, as did also the mother; that they were cognizant of the fact that the children played in this frontyard whenever they wanted, and the plaintiff was allowed by them, on this occasion at any rate, to be there without any supervision. And hence, we think, his parents were guilty of contributory negligence.

For the same reason they were guilty of contributory negligence in respect to the second cause of action. As respects this last cause of action, on the former trial -we expressed the opinion, on the record then presented to us, that the parents were not gnilty of contributory negligence. This record, however, exhibits an important and fatal change in the evidence. . On the former ■case we understood that the plaintiff was injured while at play in the yard in which bis mother was at work, and while under her supervision. It now appears from the mother’s own testimony that she was in the kitchen, washing at the time, and saw the accident from her kitchen window. • The children were playing in' the yard by her permission. Indeed, it was her custom to keep them there, because she “ felt it was a safe place.” She well knew the condition of the yard which she allowed them to use as a playground. She testified : “ There was no railing about that area way. I particularly cautioned the little boy and the little girl to keep away from thereand “ I observed the condition of the area way on the 4th of November and before;” and that she had called the attention of Mr. Halleneyer to it, and he had promised to have a wooden cover put over it; and that she had known the grating was off for two months before the accident occurred. It also appeared from the evidence that the father knew of the same defect. We see no escape, therefore, from the conclusion that, if it was negligence for the landlord to leave the yard or the door in the condition in which they were, it was •equally negligence for the mother and father, having the care of the plaintiff, to permit him habitually to play in either place without the presence of some competent person to watch and protect him. True, there is no question of the contributory negligence of the plaintiff, because at the time of the accident he was 'only two years and seven or eight months of age; but as he was non sui juris, the negligence of his mother must be imputed to him, Kunz v. City of Troy, 104 N. Y. 344, 351; 5 St. Rep. 642 ; 4 Am. & Eng. Enc. Law, 87, and this precludes his recovery.

As it appears that this defect in the plaintiff’t case cannot be remedied upon a new trial, the judgment is reversed, and judgment absolute dismissing the complaint is ordered, with costs.

All concur.


text:
    Henry C. L. Peetsch, App’lt, v. William H. Quinn, Def't; Michal H. Curran, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Appeal—Appealable.
    An order, denying a motion to compel the attorney for the adverse party to pay the costs of the action, is appealable.
    3. Costs—Party nsr interest.
    Section 3347 of the Code does not apply to a person who defends in the name of another.
    Appeal from an order of the city court, affirming an order denying plaintiff’s motion and defendant’s attorney, be directed to pay the cost of the action as the person beneficially interested therein.

      Edward W. S. Johnston, for app’lt; Michael H. Curran, in pro. per.
   Bischoff, J.

This is an appeal from an order denying the

plaintiff’s motion that the respondent, attorney for the defendant, be directed to pay the costs of the action, as the party beneficially interested. The trial of the cause resulted in a verdict for the plaintiff for $49.50 and, this being insufficient in amount to carry costs, the defendant obtained a judgment for $19.12, the excess of his costs, as taxed, over the amount of the verdict. Owing to the error of the trial court in refusing the allowance of interest upon the sum recovered by the plaintiff, the judgment was reversed upon appeal to this court, and the verdict corrected by the addition of interest. Peetsch v. Quinn, 7 Misc. Rep. 6 ; 57 St. Rep. 80. It resulted that the plaintiff obtained a judgment for costs of the trial and appeals, together with the amount of the verdict and interest, in all, $474.79. Defendant, Quinn, having died before the appeal to this court was instituted, the respondent, Curran, procured his own appointment as administrator, for the purpose of responding to the appeal, and protecting the judgment for costs, and his interest therein as attorney. It was claimed in the court below, and is now contended, that he should be charged with the costs of the trial and appeals as the “party beneficially interested,” under section 3247 of the Code of Civil Procedure, in view of the fact that he alone was interested in the judgment and the event of its affirmance upon appeal. There can be no doubt that the order is appealable to this court. Code Civ. Proc. § 3191, subd. 3 ; Giles v. Halbert, 12 N. Y. 32; Slauson v. Watkins 95 id. 369 ; Wolcott v. Holcomb, 31 id. 126. That it was made upon “summary application after judgment,” Giles v. Halbert, supra, does not alter its appealability as “affecting a substantial right.” True, section 1337 of the Code of Civil Procedure, defining the scope of review by the court of appeals of an order made upon “summary application after judgment," does not apply to appeals from the city court of common pleas (section 3192), yet the right of appeal to the court of appeals from such an order is not founded upon section 1337, but upon section 190, which provides for appeals from orders “affecting a substantial right, and not resting in discretion” (subdivision 2), and an order made “upon summary application after judgment” is particularized merely as a contemplated instance of an order “affecting a substantial right” (subdivision 3). See, also, Wolf v. Buttner, 6 Misc. Rep. 119; 57 St. Rep. 861.

While we entertain the appeal, our conclusion upon the merits denies its süccess. The present statute, which gives a right to a successful litigant to charge a third party with the costs of the litigation, by reason of a beneficial interest in, or a transfer of the cause of action to such party, is section 3247 of the Code of Civil Procedure, a substantial re-enactment of a corresponding provision of the Bevised Statutes (2 Rev. St. p. 679, §44; 2 Edm. St. p. 518, § 47), which provision was uniformly held to apply only to the beneficial interest of or transfer to one prosecuting the action, not to one defending a suit, Miller v. Adsit, 18 Wend. 672; Ryers v. Hedges, 1 Hill, 646, or responding to an appeal, Bendernagle v. Cocks, 19 Wend. 151; and, failing an expression of legislative intent that a person other than as specified shall be required to pay the successful party’s costs, though he himself be no party to the record, it is not for the courts to establish any such requirements, Miller v. Adsit, supra. Under section 321 of the Code of Procedure it was held that one defending in the name of another could be so charged, but this was by reason of the wording of that statute, wherein there was a distinct departure from the provisions of the enactment before in force. Wolcott v. Holcomb, 31 N. Y. 126. The legislature, by rejecting "the phraseology of the former Code, and embodying that of the lie vised Statutes in the enactment of section 3247 of the present Code, must clearly have intended that the law, in this aspect, should be as interpreted by the earlier decisions cited above.

But appellant contends that under his prayer for general relief the court below should have charged Curran personally with the costs, as an attorney who willfully and without authority has subjected his successful opponent to the expense of the litigation. With what propriety the court below might have granted this relief, in view of the fact that the initiative in this litigation was uninterruptedly maintained by the plaintiff, it is unnecessary to determine. The particular relief asked by the moving party was properly denied, as before shown ; and while the court had power, under "the general prayer, to grant such relief as the party might have shown himself to be entitled to, yet its failure to grant any other relief must necessarily be taken as in the exercise of discretion, the essential facts having been disputed, and is not the subject of review here. Van Slyck v. Hyatt, 46 N. Y. 364. Order affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    Marshall Barber et al., Resp’ts, v. Charles H. Rutherford et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Appeal—Undertaking.
    Section 1300 of the Code does not apply to an action on an undertaking on appeal to the court of common pleas from a judgment of the general term of the.city court, affirming a judgment in that court.

      2. Fobmer adjudication—Counterclaim:.
    A judgment for the plaintiff for the price of goods, in which a counterclaim on the ground of their inferior quality was interposed, is conclusive in a subsequent action on an undertaking on .appeal from such judgment.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict directed in favor of plaintiffs.

      Fromme Brothers, for app’lt; Michael Cardozo, for resp’ts.
   Giegerich, J.

This action was brought against the defendants, as sureties on an undertaking on an appeal from a judgment of the general term of the city court of New York to this court, which has been affirmed. The plaintiffs heretofore brought an action in the city court of New York against one Albert Gray to recover the purchase price of certain coal sold and delivered. In that action counterclaims were interposed by the defendant for damages claimed to have been suffered by him because the coal did not conform to the character and quality agreed to be furnished, and because the coal was of inferior quality and contained dirt. The trial of that action resulted in a judgment in favor of the plaintiffs, which was affirmed on appeal to the general term of the city court. 3 Misc. Rep. 146; 51 St Rep. 493, and again on appeal to this court. Subsequently a motion was made for a re-argument, which was d.enied. 4 Misc. Rep. 193 ; 53 St. Rep. 486. The defendants executed a written undertaking on appeal to this court, and, on the failure of said Albert Gray to pay the amount found due, and upon the return of an execution against his property unsatisfied, the plaintiffs commenced this action. The complaint sets forth the original suit; the appeal to the general term of the city court, and thence to this court; the giving of the undertaking, and the decision of this court affirming the judgment; the application for a reargument of-said appeal, and the denial by this court of the same; the demand of the amount due from said Albert Gray, his refusal to pay the same, and the return of an execution against his property wholly unsatisfied. The defendants, in the present action, admitted by their answer the execution of an undertaking of the general description and character referred to in the complaint, and set up that they have no knowledge or information sufficient to form a belief as to any other allegations of the complaint. They also set up as counterclaims the same facts as were contained in the answer in the action brought by the plaintiffs against said Albert Gray. Upon the trial the plaintiffs put in evidence the judgment roll in said last-mentioned action, the undertaking on appeal, the execution issued thereon, the order of this court denying the motion for a reargument, and the demand for the payment of the amount of the several judgments. The plaintiffs having rested, the defendants called said Albert Gray as a witness, and attempted to prove by him the facts set up in the answer as to the character of the coal supplied by plaintiffs to him. All questions upon this subject were objected to as immaterial, irrelevant, incompetent, inadmissible, and as res adjudícala, and the objection .was in each instance sustained, to which several rulings the defendants excepted.

The defendants moved for the dismissal of the complaint, both before and at the close of the case, because “ it omits to allege any service of the judgment, or entry thereof, or any notice of entry thereof, upon the.appellants in the action in which the undertaking was given, and also the lapse of ten days, as required under the Code and statute,” which several motions were denied, and defendants excepted. The trial judge having directed a verdict in favor of the plaintiffs, the defendants appealed to the general term of the city court, which affirmed the judgment, and from the judgment of affirmance this appeal is taken by the defendants. The appellants contend that the complaint is insufficient on the face thereof, because it fails to allege service of the notice referred to; and section 1309 of the Code of Civil Procedure is cited in support of the contention. That, section, in part prescribes:

“An action shall not be maintained, upon an undertaking, given upon an appeal taken as prescribed in title third, fourth or fifth of this chapter, until ten days have expired, since the service, upon the attorney for the appellant, of a written notice of the entry of a judgment or order, affirming the judgment dr order appealed from, or dismissing the appeal”

Precisely the same question was raised in Weil v. Kempf, 12 Civ. Proc. R. 379, and was examined with great care and ability by McAdam, J., who decided the point adversely to the position contended for by the appellants in the case at bar. Sections 3191 and 3183 of the Code of Civil Procedure, and sections 1269 and 1271 of the consolidation act (Laws, 1882, c. 410), which are identical, prescribe in what cases, and the time and manner in which, an appeal may be taken from the general term of the city court of New York to this court, and we assume that the appeal was taken -under and pursuant to these provisions, and not under either titles -3, 4, or 5 of chapter 12 of the new Code, consequently section 1309 of the new Code has no application to the case before us. It seems to us, from a reading of section 3192 of the new Code, and section 1270 of the consolidation act, which are identical, in connection with all of the foregoing statutory provisions, that the legislature intended, by enacting the last-mentioned sections, to merely ingraft into the practice relating to appeals to the general term of the city court, and from thence to this court, the provisions of the new Code regarding security on an appeal from an inferior ¿curt to the supreme court, which superseded section 354 of the old Code. This construction is the only one which can be placed upon these provisions, which would otherwise be inconsistent, one with the other, and by adopting it we secure harmony of action between them. We therefore concur in the reasoning and conclusion reached by Judge McAdam, that it was not necessary to give notice of entry of an order or judgment of this court affirming a judgment of the city court of New York in an action before bringing suit upon an undertaking given by the appellant on such appeal.

The. judgment in the original action against Cray was conclusive between the parties, not only as to the matters actually determined, but as to every other matter which the parties might have litigated and decided as incident to or essentially connected with the subject-matter oí the litigation within the purview of -the original action, either as matter of claim or as defense. Griffin v. Railroad Co., 102 N. Y. 449, and citations; Johnson v. Wharton, 152 U. S. 252, and citations. From the record of the original action it is not to be determined that the defendant’s counterclaim was dismissed or finally withdrawn from the consideration of the court; hence we cannot now assume that in disallowing the amount claimed by the defendant the court acted otherwise than upon the merits. Until vacated or reversed, therefore, the judgment in the original action is conclusive.

We are therefore of the opinion that the ruling of the court below in respect to such judgment was correct. For these reasons the judgment appealed from should be affirmed, with costs.

All concur.


text:
    Ernest A. Des Marets, Resp’t, v. H. Ward Leonard & Company, App’lt.

      (New York Common Pleas, General Term,

      Filed March 14, 1895.)

    Witness—Credibility—Interest.
    Where it is established that business relations, existing between the witness and the party calling him, are such as usually and ordinarily produce an interest in the mind of the witness in favor of such party, on the question in dispute, it is for the jury to say to what extent, if any, the relationship impairs or destroys the credibility of the witness.
    Appeal from a judgment entered on a verdict in favor bf plaintiff, and from an order denying a motion for a new trial.

      Wise & Flannagan, for app’lt; Samuel R. Taylor, for resp’t.
   Daly, C. J.

The alleged error to which the exception was directed was not committed by the trial judge. The exception was “to that part of the charge wherein it is charged that the witnesses of the defendant are all interested,” whereas the remark of the judge was “there is interest on the part of the plaintiff, and interest also on the part of the defendant and its witnesses." But, if the exception raises the question as to the correctness of the charge, then there is no error, because one of the defendant’s witnesses was its president, and might be considered interested on that account, Merrill v. Coal Co., 114 N. Y. 216, 221; 23 St. Rep. 114, the testimony of officers of a corporation standing on the same footing as that of a party, Goldsmith v. Coverly, 56 St. Rep. 857, and the other two witnesses of the defendant were its employes at the time of the transactions to which they testified, one as agent, and one as superintendent and general salesman, although neither was so at the time of the trial, the company being then in the hands of a receiver; and the judge’s remark concerning their interest could only be construed as referring to the business relations which had existed between them and their employer, the defendant, and which might naturally tend to create a bias in their minds. It is competent to prove the social and business relations existing between the witness and the party calling him to the stand, and if it is established that they are such as usually and ordinarily produce an interest in the mind of the witness in favor of the party calling him, on the question in dispute, then it is for the jury to say to what extent, if'any, the relationship impairs or destroys the credibility of the witness. Carbon Works v. Schad, 38 Hun, 71. There is nothing in the case, nor in the charge, from which the jury could possibly infer that the judge regarded the witnesses as having any pecuniary interest in the litigation ; but, if the defendant apprehended that the charge might produce such an impression, he could and should have asked for a modification or an explanation on the spot. ' The exception (taken when the jury returned to the court room with their verdict) failed to point out the error complained of.

So far as the other point in concerned, that the verdict is against the weight of evidence, that assumes a proposition which has been continually denied, to wit, that the number of witnesses constitutes preponderance. Juries are always instructed to the contrary and told that that is only a matter to be considered. In this case we have four parties to a transaction called upon to testify, —one of them giving one version, and three giving another version. The jury has the right to believe the one as against the three, if there is nothing inherently improbable in the testimony of that one.

Judgment and order affirmed.

All concur.


text:
    Robert Tucker, Resp’t, v. Pennsylvania Railroad Company, App’lt.

      (New York Common Pleas, Trial Term,

      Filed April 1, 1895.)

    Pleadings—Admissions.
    An averment in an answer, in an action against a carrier, that defendant “is a common carrier engaged in the business of forwarding and transporting goods, and that it agrees to carry goods received by it for transportation in a safe and careful manner,” is not an admission of an allegation in the complaint that defendant agreed to provide suitable care and conveyances for the proper and safe transportation of the goods.
    Motion for re-argument.

      Charles Caldwell, for pl’ff; Robinson, Biddle & Ward, for def’t.
   Bischoff, J.

Upon this motion the point is made that the court overlooked, or failed to give proper significance to, what is claimed to be an admission by the answer of the allegation contained in the complaint, that “defendant * * * agreed to provide suitable care and conveyances for the proper and safe transportation of said lemons.” This admission in fact was “that it [defendant] is a common carrier engaged in the .business of forwarding and transporting goods, and that it agrees to carry goods, etc., received by it for transportation, in a safe and careful manner.” This is merely a statement of the legal duty of a common carrier, and does not affect the fact that here nothing was shown upon which a failure of duty with regard to transportation in a safe and careful manner was predicable, under the charge delivered, at the trial. According to the plaintiffs testimony, only the three varieties of cars noted in the case were used by defendant in the transportation of lemons. This he knew when tendering the goods for shipment. There is no proof that other cars, suitable and safe for transportation of such goods, were at the command of defendant or. that any other varieties were employed at that time by carriers in general for the carriage of fruit. As we said in the opinion heretofore handed down "the jury were instructed that no duty rested upon the defendant to ship the goods in “refrigerator” or “Eastman” cars, and it appeared that the facilites remaining to the defendant for transporation, as called for in accordance with its duties, were duly employed. From the testimony of defendant’s receiving clerk, it appears that knowledge of the fact that the ■goods were of a nature such as would be injuriously affected by cold was imputable to defendant; and, in view of further evidence in the case that the latter customarily used refrigerator and Eastman cars for transportation of fruit during the winter months, it would' appear that the question whether, under the circumstances of the case, its duty did not require it to make use of an Eastman car after having accepted the goods for transportation, should have been left to the jury. Wing v. Railroad Co., 1 Hilt. 248; Steinweig v. Railway Co. 43 N. Y. 127; Tierney v. Railroad Co., 76 N. Y., at page 314 et seq. The fact that the goods were of the class designated in the shipping receipt to be “at owner’s risk” does not affect the carrier’s liability for injury resulting from its negligence, if proven, since an exemption upon this ground was not expressly provided for in terms, as would be required in order that liability so sought to be imposed might be resisted. Canfield v. Railroad Co., 93 N. Y. 537; Nicholas v. Railroad Co., 89 N. Y. 370.

Motion denied, with $10 costs.

■ All concur.


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    Abraham Ellenstein, App’lt, v. Jacob Klee, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    ’Tender—District court.
    The provisions of the Code, authorizing a tender after action brought, do not apply to the district court.
    Appeal from a judgment in favor of defendants.

      Jacob Rieger, for app’lt; Leo. W. Harburger, for resp’t.
   Daly, C. J.

The record shows that the parties appeared in the district court on December 21, 1894, after service of the summons, and the “plaintiff complained against the defendants as follows: Work, labor, and services on an assigned claim; and the said defendants answered as follows: General denial, breach of contract, tender $17.05, $17.05 paid to clerk Dec. 21, ’95 [evidently a mistake for 1894].” No proof of tender before suit was brought was offered on the trial, and the justice, according to the record, “rendered judgment in favor of the defendants, and against the plaintiff, i$17.05, paid to clerk December 21, ’94. Judgment for the defendant's. Amount paid into the court is sufficient to pay the plaintiff’s claim. ” _

_ As there was no evidence of tender before suit, we are to assume that no such plea was intended by the answer and that the $17.05 was meant to be a tender at the time, of the joining of issue. The provisions of the Code authorizing tender after suit brought (section 731 el seq.) do not appear to be made applicable to district courts (section 3347, subd. 6); and, if they were, there was yet no tender of costs, and it was ineffectual. Eaton v. Wells, 82 N. Y. 576. If the offer of judgment allowed by the old Code (sections 64, 68) is still applicable to district courts, then that practice was was not pursued in this case, for there was no offer of judgment made. As the justice found that the plaintiff had a claim which the imoney paid into the court was sufficient to satisfy, he should have rendered judgment in plaintiff’s favor for the amount due. He could only render judgment in defendants’ favor on proof that tender had been made before suit

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

All concur.


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    Alexander Kenny, Resp’t, v. Perrin H. Sumner, App’lt.

      (New York Common Pleas, General Term,

      Filed March 15, 1895.)

    1. Appeal—New tbial—Case.
    An appeal from an order, denying a motion for a new trial, must be made on a case.
    2. Same—Notice.
    A motion to dismiss such appeal must be made on a notice of eight days.
    3. Same—Stay.
    A stay of proceedings to enforce the judgment does not affect the respondent’s right to move to dismiss the appeal.
    Appeal from a judgment in favor of plaintiff.

      William Henry Knox, for app’lt; W. McCloskey, for resp’t.
   Daly, C. J.

Motion by plaintiff, on notice of four days, to-dismiss defendant’s appeal from an order denying a motion made by him upon the minutes for a new trial, and to affirm the said order, on the ground of failure to serve a proposed case or any printed papers on appeal. The plaintiff had a verdict at trial term on October 2, 1894, for damages; and defendant, on the same day, moved for a new trial, which motion was denied. The trial judge granted the defendant a stay of sixty days after notice of entry of judgment, and sixty days to make a case. Plaintiff has not entered judgment upon his verdict, and defendant has appealed from the order denying a motion for a new trial. He has not, however, made and served a case upon such appeal, and plaintiff moved to dismiss it.

Defendant insists that he is not bound to make and serve a case upon his appeal, on the ground that an appeal from an order denying a new trial upon the minutes is always heard upon a case made at the same time as the appeal from the judgment, and cites rule 88. Nothing in that rule prevents an appeal from the-order and the service of a case on such appeal independent of an appeal from the judgment. Section 999 of the Code provides that an appeal from the order must be heard upon a case prepared and settled in the usual manner. Appellant contends that he cannot prepare a case in the absence of a judgment roll. Section 997 prescribes what a case shall contain, and it does not include a judgment roll.

It is also urged by the appellant that this motion cannot be made by the plaintiff, because his proceedings are stayed until sixty days after notice of entry of judgment. But this is not so. The trial judge granted defendant a stay of sixty days after notice of entry of judgment. This stay operated only in case judgment was entered, and suspended enforcement thereof. It does not tie plaintiff’s hands upon defendant’s appeal from the order denying a new trial.

It is also contended by appellant that his time to make a case-runs from notice of entry of judgment. But this rule applies only to a case made upon appeal from a judgment rendered by the-court or referee, as in the cases cited by him. French v. Powers, 80 N. Y. 146; Schwarz v. Weber, 103 N. Y. 658; 6 St. Rep. 688. The time to make a case, where the trial was before a jury, runs from the time of the trial or of a motion for a new trial. Rule 32.

But this motion must be denied, because the notice (four days) is too short. Appeals from nonenumerated motions may be dismissed on three days’ notice (rule 41) ; but the appeal from an order granting or refusing a new trial is an enumerated motion,— i. e. a motion arising on a case (rule 38). Inasmuch as the order-can only be reviewed upon a case made, it must be deemed a motion arising upon a case. Harper v. Allyn, 3 Abb. (N. S.) 186. A motion may be made to strike an enumerated appeal from the calendar, and for judgment for want of service of printed papers (rule 41).; but such motion must be upon notice of eight days Salters v. Sheppard, 11 Wkly. Dig. 189.

Motion denied, without costs, with leave to renew.

All concur.


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    William Kessler et al., Resp’ts, v. Berthold Levy et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Reabgtjmbnt.
    A motion for a reargument will be denied, where the error in the statement of fact in the papers upon which error the motion is based, will not affect the decision on the appeal.
    Motion for reargument.

      Meyer Auerback, for app’lts; Simon Sultan, for resp’ts.
   Daly, C. J.

The motion for reargument should be denied, for the reason that the error in the statement of fact in the papers on appeal will not affect the decision upon the appeal. That decision was, where a debtor has transferred his assets to a corporation in exchange for its capital stock issued for such transfer, and has offered such shares to his creditors in payment or as collateral security for his indebtedness, the facts do not show, that he has removed and disposed of his property with intent to defraud his creditors. The consideration of the effect of the statute of frauds upon such a transaction as intended to hinder or delay creditors was expressly excluded, and the ruling of the general term was put upon the ground that the evidence of intent to defraud was insufficient because the debtor was in fact offering his creditors the entire avails of the exchange, and therefore the equivalent of the whole transferred property. In that view the discussion of the facts as to the "value of the assets so transferred, whether $350,000 or ,$250,000, and the proportion which such value bore to the indebtedness of the defendants, was not material to the decision, and a change in such facts would not affect-it. As the amendment to the appeal book is asked for solely as a basis for reargument, and the latter relief is unnecessary, it would be improper to disturb the record; the error being immaterial in the disposition we have made of the case. Motion denied, wihout costs.

All concur.


author: Daly, C. J. Pryor, J.

text:
    Isaac Rouse et al., Resp’ts, v. Printers’ Exchange Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Appeal—Conflicting evidence.
    A judgment, on conflicting evidence, will not be disturbed on appeal.
    3. Trial—Motion to dismiss.
    Failure to move to dismiss at the close of the testimony concedes that the case presents a question of fact.
    Appeal from a judgment in favor of plaintiffs.

      Hector M. Hitchings, for app’lt; Abraham Levy, for resp’ts.
   Daly, C. J.

The plaintiffs sued to recover $53,—$50, a deposit in advance on the purchase price of a printers’ outfit, consisting of second-hand materials, which defendant agreed to deliver on May 10th ; and $3 deposited for cartage. On the day appointed for delivery, as well as the day before, the plaintiffs went to the defendant’s place of business, saw the type which defendant proposed to deliver, or some part of it, and found that it was in poor condition and defective, and objected to it; and defendant made no offer to deliver suitable articles. Next day plaintiffs demanded back their deposit, which was refused. The defendant offered evidence showing that the type was in good condition and suitable, and that when complaint was made defendant offered, if anything was wrong, to give other things. Plaintiffs’ evidence was that defendant promised to make everything satisfactory, but that this was on the Monday prior to the day of delivery. There was, therefore, a conflict of evidence as to whether the defendant was ready to deliver suitable goods when called for by the contract, or offer to make such delivery after complaint. On the issues thus presented the justice found for the plaintiffs, and his decision upon the evidence should not be disturbed. It is claimed that plaintiffs’ refusal to accept was in bad faith, they having meanwhile got a better bargain elsewhere; but there was a conflict of evidence upon the facts with regard to that contention. There was no motion to dismiss the complaint at the close of the case, which was thereby conceded to present a question of fact for the decision of the justice. No exceptions are presented by the ¡record. The judgment should be affirmed, with costs.

Bischoff, J., concurs.

Pryor, J.

(dissenting).—The action purports to be for the recovery of money paid upon a rescinded contract. The evidence for plaintiffs authorizes these inferences of fact: That the parties entered into an executory agreement, whereby the defendant engaged to furnish plaintiffs a printers’ outfit, complete and satisfactory ; that on concluding the bargain the plaintiffs paid down $53 ; that thereafter the plaintiffs examined the outfit proposed to be supplied by defendant, and found it unsatisfactory; that thereupon plaintiffs revoked the contract-, and demanded the return of the cash payment. So far the case for the plaintiffs is clear enough, but I find in the record a fact which ib fatal to their contention. By the testimony of Isaac Bouse himself it appears that when, on inspection of the outfit proposed to be furnished by the defendant, he declared his dissatisfaction with it, the defendant offered to make it satisfactory. The offer was rejected, and plaintiffs proceeded to provide themselves elsewhere. Upon what principle may plaintiffs affect to rescind a contract which the defendant offered faithfully tn perform? I know of none. After repudiation of the contract by the plaintiffs, the defendant was under no obligation to tender delivery. The plaintiffs were too impatient to escape from their bargain to await a default by the defendant. But until such default they could not rescind, and until a rescission of the contract they cannot recover the money paid. The judgment should be reversed.


author: Dwight, P. J.

text:
    The People, Resp’t, v. Flour City Life Association, App’lt. In the Matter of Lydia E. Post et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Assi&nment—Equitable—Order.
    An order, directing the treasurer of a life insurance company to pay a death claim out of any sum belonging to the mortuary fund, signed by the vice ivesident and secretary, operates as an equitable assignment thereof pro tanto, though it was not drawn by the officers mentioned in the by-law, nor upon the depositary of the fund.
    Appeal from an order, directing payment of the claims against the association.

      Geo. F. Yeoman, for app’lt; Geo. D. Williams, for respondents Post and others; Irving Paine, for respondents O’Connor and others.
   Dwight, P. J.

The appellant was appointed at first temporary and afterwards permanent receiver of the defendant in an action for the dissolution of the corporation. He found among the assets of the association the sum of $2,435.13, belonging to the- “ mortuary fund in class B,” on deposit in the Central National-Bank of Rochester. It had been deposited by the treasurer, in obedience to a by-law of the association, as follows: ■

“ Eighty per cent, of the net assessments for mortuary purposes shall be deposited with such bank or trust company as may be designated by the directors, to the credit of the mortuary and benefit fund of the Flour City Life Association, from which all claims shall be paid.”

Before the appointment of the receiver each of the petitioners, respondents here, had received from the proper officers of the association an order on the treasurer for the payment of a claim which had been duly audited and approved by the. executive committee, and which — allowing for difference of name and amount — was, in terms, as follows:

“ Office of, etc.,
“Rochester, N. Y.,
July 25, 1891
“ To J. T. Baldwin, Treasurer:
“ Pay to the order of Lydia E. Post, as executrix, two hundred three and 16-100 dollars, out of any sum belonging to the mortuary fund of class B, and this shall be your voucher.
“(Signed) Waylahd Trask,
" First Vice-President
“ Ralph Wehdoh,
“ $203.16.
Secretary,

The several respondents proceeded, by petition in the action in which the receiver was appointed, to obtain an order directing him to pay the several claims so allowed and certified, without waiting for administration of the receivership and a general distribution of the assets, on the ground that the several orders mentioned constituted in effect, an equitable assignment, pro tanto, of the fund in question, and that the portion of the fund so assigned never came to the hands' of the receiver as assets of the association, but belonged to the several claimants at the time of the appointment of the receiver. The holding at special term was in accordance with this contention of the petitioners, as was, as we think, entirely correct No question whatever is made of the justness and validity of the several claims, nor that they were duly audited and allowed by the proper officers of the association, nor that the several orders for their payment which were drawn upon the treasurer and delivered to the several claimants were so drawn and delivered in accordance with the uniform practice of the association in the payment of claims of the character of those in question, established and allowed against its funds. Upon their face they are drawn payable unconditionally out of a particular fund, and they seem to meet all the requirements of the rule exemplified in the late cases of Brill v. Tuttle, 81 N. Y. 457, and Lauer v. Dunn, 52 Hun, 194; 23 St. Rep. 374, and 115 N. Y. 405; 26 St. Rep. 412, to make them so many assignments, pro tanto, of the fund named in them. The contention to the contrary is based upon a by-law of the association as follows:

‘‘Every claim, provided it shall have first been approved by the executive committee, shall be paid by means of an order drawn upon the depositary of the mortuary and benefit fund, signed by the president or vice-president, treasurer and secretary, and made payable to the order of the beneficiary, if living,” etc.

The objection is that the orders were not drawn by the officers mentioned in the by-law, nor upon the depositary of the fund. But this objection fails to discriminate between the custodian of the fund and the depositary of the fund, and assumes—contrary, as we think, to the principle involved—that the order which shall ■operate as an assignment of the fund must be drawn upon the latter. The treasurer is, no doubt, in a proper and important sense, the custodian of the funds of the association. They came ■originally to his hands, and though, for their better security, he is required to deposit them, he must yet keep his account with them, charging them with moneys received by him and deposited to their credit, and crediting them with moneys drawn from them for the payment of claims to which they must respond. Suqh being substantially the manner in which the accounts of the association were kept, as by all analogy and precedent we must assume it to be, it was certainly very proper, if not absolutely necessary, that the first step in the payment of any claim which had been duly allowed should be an order such as those in question in this case, drawn by the proper officers, upon the treasurer of the association, payable out of the appropriate fund; and, though such an order was required to be supplemented by a check, signed by the treasurer, with other officers, upon the bank where the money was deposited, for the actual payment of the claim, yet it seems to us that it was the order on the treasurer, rather than the check on the bank, which, within the principle relied upon here, constituted the equitable assignment of the fund. The affidavit of the receiver himself shows that it was the practice of the association to give such an order on the treasurer as the first step in the payment of claims which had been allowed, and that upon the presentation of that order to the treasurer, duly indorsed, he paid it by delivering to the payee or indorsee the check on the bank prescribed by-the by-law last quoted above. We do not find, upon the proofs made, that the case of the claimant Cullinan was, as suggested in the brief of counsel for the appellant, an exception to the rule which embraces all the "other claims in question. In respect to all of them we think the order at special term was correct, and should be affirmed.

So ordered, with $10 costs and disbursements of the appeal to each of the groups of respondents appearing by separate attorneys, payable by the receiver out of the fund.

All concur.


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    Mary E. Riddell, App’lt, v. Le Roy Riddell, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 18, 1895.)

    1. Dower—Partnership real estate.
    A widow of a partner is not dowable in the firm real estate, so long ay the firm affairs remain unsettled.
    2. Deed—Knowledge.
    In the absence of allegation, proof or offer of proof to establish the fact that a deed, acknowledged and delivered by plaintiff of her dower right, may be avoided by fraud, or for other cause, if actually executed and delivered by her, an instruction that it made no difference whether she knew that the instrument was a deed, is correct.
    Appeal from a judgment entered on the verdict in favor of defendant, and from an order denying a motion for a new trial.

      Mi Soule, for app’lt; DeM. Page, for resp’t.
   Dwight, P. J.

The action was ejectment for dower in seven distinct parcels of land, of which the complaint alleged that George Riddell, the husband of the plaintiff, died seized. In respect to three of the parcels, the answer averred that they were partnership property, bought by, and held for the partnership uses of, the firm of George Riddell & Co., which firm consisted of the deceased, George Riddell, and the defendant, Le Roy Riddell; that the business and affairs of the copartnership had never been settled ; and that it was still indebted to divers persons to a large amount. These facts were established by uncontradicted evidence, and the court thereupon dismissed the complaint as to the three parcels of land so situated. This disposition was undoubtedly correct. Fairchild v. Fairchild, 64 N. Y. 471; Greenwood v. Martin, 111 id. 423 ; 19 St. Rep. 612. “So long as the partnership affairs remain unsettled, like all other assets of the firm, its real estate is equitably pledged to creditors, and liable to be absorbed and disposed of in the process of liquidating the firm debts, and satisfying the claims of the respective partners, as against each other. ” Per Ruger^ C. J., in the case last cited. Widows are not dowable in real estate so situated. Sage v. Sherman, 2 N. Y. 417. Some of the evidence in support of the above-mentioned averments of the answer was objected to by the plaintiff, but they were sufficiently supported by other evidence, of unquestioned competency and equally uncontradicted.

In respect to the remaining four parcels of land involved in the action, the defense was made that the plaintiff had released her dower therein to the defendantby her deed, duly executed, acknowledged, and delivered to him, during the lifetime of her husband. In support of this defense the defendant, produced a deed bearing what purported to be the signature of the plaintiff, and a certificate of her acknowledgment, in due form, signed by a justice of the peace of the county. The defendant testified that, on the date of the deed and its acknowledgment, it was executed, acknowledged, and delivered to him by the plaintiff. The plaintiff was at first disposed to deny that she had executed such a deed, but, upon being shown the signature, virtually admitted that it was hers, and still denied that she ever acknowledged the deed, or delivered it to the defendant. Upon this conflict of evidence, if it was such, the court submitted to the jury the single question whether the plaintiff executed, acknowledged, and delivered to the defendant the deed in question, and, in doing so, remarked to the jury, in substance, that it was immaterial, for the purposes of this action, whether the plaintiff understood the import of the deed of not; that the action was not based upon any theory of fraud or deceit in procuring the deed; that there was no allegation of fraud or deceit in the case; that the action was a strict legal action to enforce the plaintiff’s legal rights, and that if she signed this deed she cannot escape the consequences, in this action, because she did not know its contents. To the charge, including this instruction, there was but a single exception, which presents the only remaining question in the case. The exception was “ to the charge that it made no difference whether the plaintiff knew it was a deed.” The instruction was manifestly correct. There was neither allegation nor proof upon which the plaintiff could avoid the deed, if it was in fact executed by her. Neither was there any offer of proof or request to charge which propounded such a cause of action on the part of the plaintiff. The only question put to the plaintiff which even remotely suggested such a proposition was, when she had virtually admitted her signature, she was asked: “If you ever did sign this deed, did you know what you were signing?” The question was objected to, and, the objection being sustained, no exception was taken to the ruling. There was, in short, neither allegation, proof, nor offer of proof, which tended to support the contention made on this appeal, and apparently on the motion for a new trial, that the deed of the plaintiff might be avoided for fraud, or for any other cause, if actually executed and delivered by her.

We find no exception in the case which points to error in the trial or disposition of the case, and conclude that the judgment and order appealed from must be affirmed.

All concur. So ordered.


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    Eugenia Stowers, Resp’t, v. Thomas Gilbert, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Evidence—Monuments.
    The effect of existing monuments to establish a boundary cannot be overcome merely by a new survey and the erection of new monuments without proving that the new monuments were in fact correct and the earlier ones not in accordance with the true and original location of the lines.
    2. Appeal—Modification.
    In an equitable action, the judgment is subject to modification on appeal.
    Appeal from a judgment rendered in favor of plaintiff.

      F. A. Mann, for app’lt; C. M. Allen, for resp’t.
   Dwight, P. J.

The action was for an injunction to restrain an alleged trespass, and for damages. The trespass described consisted in the cutting off the edge of projecting eaves of the plaintiff’S house, and some slight interference with other portions of that structure in the erection by the defendant of the wall of a new structure on his own lot, adjoining that of the plaintiff. The question involved was—as might be supposed—the extra location of the division line between the two lots. This the defendant was bound to establish with precision by his own affirmative proofs, or he could not justify his interference with the obvious and unquestioned possession of the plaintiff. This the referee finds he has failed to do, and we agree with him in respect to the effect— or, rather, noneffect—of the defendant’s proofs. Those proofs, in effect, ignore the existing and ostensible landmarks which indicated the actual location of the line in question, and seek to establish a new line in accordance with a certain survey made for the •city of Eochester to fix the lines of the two streets upon which the premises in question were bounded. But that survey was made many years after the premises in question were laid out and the line in question was established. Of course, no infallible authority was to be ascribed to that survey, although made by an official Surveyor, and the monuments erected in accordance with it could, of themselves, have no effect to overcome the evidence afforded by monuments already existing. The burden was still upon the defendant to prove that the new monum ents were in fact correct, and the earlier ones not in accordance with the true and original location of the lines. This was manifestly not accomplished by the evidence on the part of the defendant. Indeed, he made substantially no attempt to justify the location of the city monuments, but relied upon 'them as the basis of his own survey to fix the location of the line in question. Such being the case, we agree with the referee that he failed in his defense.

But upon the evidence relating to the extent of injury done to the plaintiff’s premises it seems to us that the award of damages was excessive. The amount of land embraced in the encroachment was inconsiderable, and for it the plaintiff still has her action of ejectment, and the value of her entire house was fixed by the evidence In her own behalf at $500, which was • the sum awarded for the damage done to it, which we think would be fully covered by the award of one-fifth of that amount. The action being an equitable one, the judgment is subject to modification on appeal. We are of opinion that it should be modified by reducing the amount of the recovery for damages to the sum of $100, and, as so modified, affirmed, without costs of this appeal to either party.

So ordered. All concur.


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    Essa Connolly, Resp’t, v. Fred L. Newton, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Pleadings— Complaint—Doweb.
    In an action for dower under § 1597 of the Code, it must he alleged and shown that the defendant is either an occupant of the premises, or, if the premises are not occupied, then a person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, when the action was commenced.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      J. B. Jewell, for app’lt; W. H. Bourse, for resp’t.
   Dwight, P. J.

The action was ejectment for dower in lands of which the plaintiff’s husband died seized. The demurrer was for ■want of facts in the complaint sufficient to constitute a cause of action. The facts stated were coverture, seizin of the husband during coverture, and death of the husband; also that in his lifetime the husband “executed a deed of the above-described premises to the defendant, Fred L. Newton, the plaintiff, his wife, not joining in such conveyance,” and that she “had in no way confirmed said conveyance, or released her dower in said premises. ” The existing statute which gives and regulates the action for dower (Code Civ. Proc. § 1597) provides that:

“When the property, in which dower is claimed, is actually occupied the occupant thereof must be made defendant in the action. When it is not so occupied the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action.”

This, we take it, is equivalent to saying that the defendant in such an action must be shown to be within one of the categories described,—i. e. that he is either an occupant of the premises, or, if the premises were not occupied, then a person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, when the action was commenced; and, if such fact must be shown, it must be alleged. It is equivalent, we suppose, to saying that the action can be maintained only against a person or persons who are within the description of the statute ; and, if such is the case, then the complaint must allege the facts accordingly. In this case the complaint does not state whether the property is actually occupied or not, nor that the defendant is an occupant thereof, or is a person exercising acts of ownership thereupon, or that he claims title thereto, or an interest therein. The only allegation in respect to the defendant is that the plaintiff’s husband, in his lifetime, executed a deed of the premises to him. It is not even alleged that the deed was ever delivered to him, nor that he took possession of the premises, or ever claimed title thereto, or an interest therein. So far as appears by the complaint, the defendant may have been, not merely at the time of the commencement of the action, but at all times, a total stranger to the title and to the premises. We think the demurrer was well taken, and should have been allowed.

All concur.

Interlocutory judgment appealed from reversed, and demurrer allowed, and final judgment ordered for the defendant thereon, unless the plaintiff, in twenty days, serve an amended complaint, and pay the costs of the demurrer.


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    Henry M. Davis, App’lt, v. Benjamin Aikin, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Former adjudication—Justice’s court.
    In an action in justice’s court for the wrongful conversion of money, received in a fiduciary capacity, the neglect of the defendant to feet up as a. counterclaim a cause of action against plaintiff arising out of contract, does not preclude him from afterwards suing plaintiff thereon.
    Appeal from a judgment of the county court, reversing a judgment of the justice’s court.

      Henry M. Davis, in pro per.; E. C. Hart, for resp’t.
   Dwight, P. J.

The principal cause of action in the plaintiff’s, complaint was for professional .services, as an attorney, rendered by him to the defendant, and the case presents the' question whether that cause of action was barred, under the provisions of section 2947 of the Code of Civil Procedure, by the neglect of the plaintiff to interpose it as a counterclaim in an action previously brought by the defendant against him. The answer to the question depends upon the nature and circumstances of the last-mentioned action.

. The provisions of the statute referred to are as follows:

Where the defendant, in an action to recover damages upon or for breach of a contract, neglects to interpose a counterclaim,, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof.”

It is only, therefore, in action on contract that the omission -to. set up a counterclaim operates to preclude the future maintenance of an action thereon ; and it becomes the question of this, case whether the action by the defendant in which the plaintiff here omitted to interpose his counterclaim, was an action on contract. The complaint in that action is before us, and, though drawn for a justice’s court, it is full in its details, and prepared with evident attention to the rules of pleading. It first alleges, by way of inducement, the employment by plaintiff therein (the defendant here) of the defendant therein (the plaintiff here), as attorney, to bring a certain action for him in the supreme court, under the agreement that the latter would charge and receive for his services in such action only the statutory costs which should follow the judgment to be obtained by the plaintiff therein ; that the action was brought and tried, and judgment was obtained and entered, in favor of the plaintiff therein, for $75 damages, and $19.56 disbursements for witnesses’ fees which had been expended by him, besides the statutory costs to which his said attorney was entitled under the agreement before stated. The complaint in question then alleges that the said Davis had received and collected on said judgment the said sums of $75 damages, and $19.56 disbursements paid by the plaintiff therein, besides the full allowance of statutory costs; and "that he refuses to pay to the plaintiff therein the said sums of $75 and $19.56, though payment of the same has been duly demanded of him; but that he refuses so to do, and retains the same, and “ has and does now wrongfully convert the same, to wit, the sum of ninety-four dollars and fifty-six cents to his own use.” We believe that the action thus characterized by the complaint therein is not an action on contract, but distinctly an action for the wrongful conversion of moneys received by the defendant, in a fiduciary capacity, for the plaintiff therein. There is no allegation of a contract in the complaint, except that one stated by way of inducement, which fixed the compensation to be received by the attorney for his services as such. It is true that a contract might be implied from the facts alleged, that the defendant in that action would pay to the plaintiff all the excess of the recovery therein over and above the taxable costs; but there is no allegation of such a contract, either express or implied, and, on the contrary, the allegation ig that the defendant therein had received and wrongfully converted to his own use the amount for which the action was brought. The action, as exhibited by the complaint, which has been, in substance, recited, seems to have possessed all the elements of an action sounding in tort, and entitling the plaintiff therein to an order of arrest pending the action, and to an execution against the person on the recovery of judgment; and to such an action we suppose the defendant can neither be required nor permitted to interpose a counterclaim. Code Civ. Proc. § 501, subd. 2; Rochester Distilling Co. v. O'Brien, 72 Hun, 462; 58 St. Rep. 149.

Iri the action now under review, another defense, on the facts, was interposed to the plaintiff’s principal cause of action; but that defense seems to have been properly tried before the justice, and was determined in favor of the plaintiff. The reversal in the county court we must assume, in the absence of an opinion, to have been based upon the ground heretofore discussed. Such being the case, the judgment of the county court should be reversed, and that of the justice affirmed.

Judgment of the county court of Niagara county reversed, and that of the justice affirmed, with costs.

All concur.


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    Ellen Soper, Resp’t, v. Elmer Halsey, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Marriage—What constitutes.
    In the absence of any marriage ceremony or any contract of marriage, „ an agreement between a man and a woman to live together merely does not constitute the relation of marriage in the eye of the law, where he has not held her out to the world as his wife and she has not been reputed to be such.
    2. Will—Construction.
    The provision in the will that the testator's son should have a home on the farm was held to require him to render services in return for it.
    3. Same—Election.
    Under a provision that he shall have a home on the farm during his natural life, if he shall so elect, he is entitled to the benefit whenever he elects to demand it, and does not forfeit his right by failing to indicate such election.
    Appeal from a judgment in favor of plaintiff.

      J. N. Hammond, for app’lt; F. L. Manning, for resp’t.
   Dwight, P. J.

The action was to obtain a judicial construction of the following clause in the will of Luther H. Halsey, deceased, viz.:

“ And I further will and direct that my said son Elmer shall have a home on my farm where I now reside during his natural life, if he shall so elect, and shall remain unmarried, but he shall have no right to bring a wife on said farm in case of his marriage.”

The testator made his will in 1881, and died in 1883, at the age of seventy-five years. The defendant Elmer, his only son, had always remained at home, and worked, on the farm, and although somewhat addicted to drink, was, in the language of witnesses “ very attentive to the farm, as a rule,” and “ was his father’s principal dependence for work for a great many years.” During the last ten years of his father’s life, Elmer maintained relations with a woman named Tallman, which the court at special term finds constituted marriage, within the meaning of the testamentary provision in question. This finding We regard altogether unsupported by the evidence. There was never any marriage ceremony nor any contract of marriage. There was no agreement to live together as husband and wife, but only to live together. He had never held the woman out to the world as his wife, nor was she reputed to be such, but the general reputation was to the contrary. The facts were not such as to constitute the relation of mamage in the eye of the law, and clearly they did not constitute that relation within the intention of the testator, because, with the facts well known to him, he makes the provision in question for his son to continue so long as he “ shall remain ” unmarried. Whatever the purport or effect of that provision, we have no hesitation in saying that it was not forfeited or defeated by the existence of the relations between Elmer and Elizabeth Tallman.

The remaining problem in the case, viz. to give its due construction and effect to the provision in question, according to the intention of the testator, is perhaps not so easy of solution. It must depend largely upon facts aliunde the provision itself, some of which, in addition to those already stated, are as follows: The wife of the testator died before the will was made. Elmer and Ellen, the plaintiff, were the only ones of his children who remained at home with him,—the latter as his housekeeper, and the former as his main dependence on the farm. The farm consisted of 150 acres of good land, and was considered by the testator when he made his will to be worth $16,000. He gave it, free of incumbrance, except the provision in question for Elmer, to Ellen, together with all the household effects and the live stock, except the horses. To two other married daughters he gave $5,000 each, absolutely, and his residuary estate, whatever that should be. To three grandchildren he gave $1,000 each, absolutely, and to a son George, who is not otherwise mentioned anywhere in the case, the sum of $1,000, “provided he shall call for the same within ten years after my death.” The case affords no explanation of the curious proviso attached to the gift, but in itself indicates something very peculiar in the status of this son; possibly that he had long since disappeared from home and from the knowledge of his father, and that it was even doubtful whether he was still alive. But, whatever the case in this respect, we think the son George may be dismissed from the account when a compariso.n is made of the several provisions for the children of the testator. To Elmer he gave $500 absolutely, and the income, annually, $500, which sum he gave to his executors in trust for that purpose, besides the working horses and farm implements on the farm at the time of his decease. The disparity in the provision thus far for Elmer and Ellen was very great, while, so far as appears, both had deserved alike from their father. The effect of the additional provision here in question was to lessen in some degree that disparity by laying a burden upon the one for the benefit of the other. It was also intended, no doubt, to have thé effect of continuing the relations of the two to each other, and to the home which had been theirs in common for so many years. By the terms of the will, Elmer, on certain conditions, was to have a home'on the farm during his natural life, and Ellen was to have the farm subject to the interest of Elmer. The precise question here is what the term “home,” as here employed, was intended to include. The court at special term said it meant only a lodging place for which Elmer should pay what it was reasonably worth. We are not at all satisfied with this exposition. We think it falls short of the benevolent intention of this prudent father towards his somewhat wayward, but always faithful, son. It is impossible to restrict the meaning of the word “home” as here employed to mere shelter and a bed. Elmer had always had a home on the farm, and it included subsistence; and so, we are satisfied, was the home intended to do which his father provided for him by his will. But we do not suppose that it was not intended that his sister, or her grantees the farm, should support him in idleness. While his father lived, Elmer had earned his living, and more, by his labor on the farm. He had received from his father $200 a year, besides his board, for his services. And when his father provided for him a continuance of his living on the farm, we think it fair to assume that it was intended he should continue to render corresponding services, in return therefor. A similar view was taken of a similar provision in a will in the case of Lyon v. Lyon, 65 N. Y. 389. That was the case of provision by a father of a home for a daughter on premises devised to sons. The daughter had been accustomed to render the usual services of a daughter in the home of her father, and the court held that, under the provision in question, she was entitled to a home, including support and maintenance, and was bound, in return, to render appropriate services in the home therefor. In this case it cannot be required that Elmer should do the work which he did on his father’s farm, by which he earned $200 a year besides his board and lodging; but we think it is in keeping with the spirit of the provision made for him that he should render to those charged with furnishing him his living such services on the farm as are appropriate as a compensation therefor.

The contention that the defendant had forfeited his “ interest in the farm” by failing to indicate that he elected to claim it is' not to be maintain in this case. No time is fixed by the provision in which the election shall be made, and we suppose he is entitled to the benefit whenever he elects to demand it.

The judgment in this case should be modified in accordance with the views here expressed, and, as so modified, affirmed, without costs of this appeal to either party.

So ordered. All concur.


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    Caroline Wasmuth, Resp’t, v. Edward H. Butler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Negligence—Hoese.
    In action for injuries caused by defendant's runaway horse, a verdict in the affirmative on the question of negligence is justified by the facts, where his driver left the horse alone in the street, unwatched and unfastened,

      2. Same.
    In such case, it is unnecessary to show that the horse was of a vicious nature.

      D. N. McNaughton, for app’lt; Wm. Armstrong, for resp’t.
   Dwight, P. J.

The action was to recoved damages for bodily injury sustained by the plaintiff by means or in consequence of .alleged negligence of the defendant's servant in the management and control of a horse of the defendant, while used and employed in the business of the latter. The evidence plainly demonstrated the negligence complained of. . The horse, which was driven to a light cart, in delivering newspapers, was left by the driver standing in the street, unfastened and not watched, while the driver went inside a neighboring building, and shut the door behind him. While thus left alone the horse became frightened and ran away, in the direction in which the plaintiff was driving on the street, overtook her from behind, collided with her wagon, and threw her out, and in the fall she sustained the -somewhat serious injury of which she complains. The court at the circuit properly submitted to the jury the question whether the act of the defendant’s servant in leaving the horse untied, and without supervision, on the street of a city, was negligence; but if the verdict of the jury had answered that question in the negative it would probably have been a question for the court, on a motion for a new trial, whether the verdict were not so manifestly opposed to the experience and judgment of mankind as to necessitate the granting of the motion. Certainly, the verdict in the affirmative on the question of negligence was justified by the facts. It has become almost provertive that no horse is safe to leave untied on the street.

The contention of the defendant that it was necessary, in order to the maintenance of the plaintiff's action, to show that the horse was of a vicious nature, is sufficiently answered by the suggestion that the complaint is not of the fault of the horse, but of the fault of the driver. Precisely the same principle was involved in the case of Dickson v. McCoy, 39 N. Y. 400, where the horse was let loose on the street, to go, as he was accustomed to do, from one stable to another, and, in his passage, playfully kicked over the plaintiff, a little child. It was held there, as here, that it was not required to show that the horse was of a vicious nature, or accustomed to kick or injure mankind; that the fault upon which the action was based was not that of the horse, but that of the owner, in suffering the horse to go at large on the street In that case the horse was purposely, in this case negligently, suffered to go at large, with the result in each case of an injury to another, who was without blame.

The judgment and order appealed from must be affirmed. So ordered.

All concur.


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    Jeremiah F. Sheehan, Resp’t, v. Israel Golden, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Replevin—When not lie.
    An action of replevin by the vendor against the purchaser and the sheriff who has levied upon the goods on an execution against the purchaser cannot be maintained on the ground that the sale was procured by fraud, where he did not discover the alleged fraud, took no steps to rescind the contract of sale, nor indicated his intention to do so, until after the levy.

      % Same—Judgment.
    A defendant, who is not entitled to a return of the property to himself, cannot have judgment for its return to another defendant who has not asked for it.
    Appeal from a judgment, dismissing the complaint, entered on a verdict directed by the court in favor of defendants.

      E. L. Jelleneck, for appellant; Wallace Thayer, for resp’t.
   Dwight, P. J.

The action was replevin for a quantity of goods alleged to have been obtained by the defendant Golden from the plaintiff by means of fraudulent representations. The goods were taken by the replevin process from the possession of the defendant Beck, sheriff of Erie county, who had previously seized them by virtue of an execution against the defendant Golden. The goods were not reclaimed pending the action, and the defendant Beck made default. The defendant Golden answered, denying the fraud charged against him, and alleging that at the time of the levy by the sheriff the goods were the property of him, the defendant Golden, and that by virtue of such levy the defendant Beck had' acquired all his (Golden’s) right, title and interest therein. He demanded judgment for the return of the goods, with damages for their taking and detention, besides costs. On the trial it appeared that the plaintiff did not discover the alleged fraud until after the levy by the sheriff, and, of course, had taken no steps to rescind the contract of sale, nor indicated his intention so to do, until after such levy; and thereupon the court at the circuit, under the case of Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496, directed a verdict of no cause of action. With this the defendant was not content, but asked for the direction of a verdict to the effect that the defendant Beck was entitled to a return of the property. This was refused, and the defendant excepted, and that exception is the ground of his appeal from the judgment dismissing the complaint, and for costs, which he caused to be entered on the verdict directed as above.

It is conceded that the action could not be maintained under the doctrine of Wise v. Grant, supra. The question is whether, such being the case, the defendant Golden was entitled to a judgment for the return of the property to the defendant Beck. Of course, he was not entitled to have it returned to himself. By his answer he bad expressly disclaimed for himself all right and title and interest therein after the levy by the sheriff. This disclaimer was probably too broad. He had at least a reversionary interest in case the goods sold for more than the amount of the execution. But he had no right to the possession of the goods. That was vested in the sheriff by the levy, and it was for the sheriff to defend or to relinquish if he saw fit not to defend it. He must be supposed to have had his own reasons for not defending his possession of the property, and demanding its return to him. In failing to do so, he has acted upon his own responsibility; and the rights of others, probably, need not suffer by his default But in this action it is apparent that anybody else can interpose to obtain for him what he has declined to ask for himself. The question is not free from difficulty, and the result indicated presents some anomalies. We are inclined to think that the case is one omitted to be provided for in all the infinite detail of the statute which “gives the action to recover a chattel.” Certainly, we find nothing in the statute which favors the proposition that a defendant who is not entitled to a return of the' property to himself can have judgment for its return to another defendant who has not asked for it. The merits of the case arc all with the plaintiff. The defendant did not attempt to meet the ease, made on the trial, of his fraudulent procurement of the goods. His sole dependence was upon a technical construction of the statute, which prevented the plaintiff from maintaining his action. We are of opinion that the court at the circuit correctly decided to dismiss the complaint in this action, and leave any party aggrieved to such further remedy as he may be advised to pursue.

The judgment appealed from should be affirmed. So ordered.

All concur.


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    Thomas J. Reynolds, App’lt, v. Empire Lumber Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March 12, 1895.)

    Accord and satisfaction—Part payment.
    The acceptance and use of a check, which recites that it is “ in full ” of an unliquidated claim, constitute full payment thereof, though the creditor notified the debtor of its insufficiency and sends a bill showing a balance after crediting the check.
    Appeal from a judgment, dismissing the complaint, and for a counterclaim in favor of defendant.

      E. A. Nash, for app’lt; H. M. Hill, for resp’t.
   Dwight, P. J.

The sole question made on this appeal relates to the allowance of a counterclaim of $21.06; and whether that counterclaim was properly allowed depends upon .the question whether a certain payment, by check, made by the plaintiff to the defendant, was or was not in full of a small balance of indebtedness concededly due from the former to the latter, the amount of which was unliquidated. The referee finds the amount of that indebtedness on the 1st day of Jatmary 1889, to have been $106.43. On the 9th day of February the plaintiff sent to the defendant a statement of the account, exhibiting a balance due from him of $85.37, and in.closed his check for that amount in the following terms:

“Rochester, FT. Y., Feb’y 9,1889.
“Banking House of A. 0. Woodruff, Livonia, N. Y : Pay to the order of Empire Lumber Company, Lt’d, in full, eighty-five and 37-100 dollars.
“$85.37-100. [Signed] T. J. Reynolds.”
The check was received by the defendant in due course of mail, and on the 11th day of February the defendant wrote the plaintiff as follows:
“Ridgeway, Pa., Feb’y 11, 1889.
“ T. J. Reynolds, Esq.
“ Dear Sir : Yours of the 9th, inclosing check for $85.37, purporting to be in full for account between us, received. In reply, ■vire cannot accept it in that way, as you owe us $39.45 yet, to "balance a\c to Sept. 19th, 1888; and on receipt of same, in addition to check of $85.87 rec’d, will balance a\c,and receipt to you,
“ [Signed] Empire Lumber Co.,
“A. M. McOlaim, Treas.”

On the 18th day of the same month the defendant again wrote the plaintiff, inclosing this time its statement of the account, exhibiting a balance due defendant, to date, of $142.20, after crediting the check of $85.37, and again declining to accept the check in full settlement of the same. To this letter the plaintiff replied on the 23d of the same month, pointing out what he asserted were errors in the defendant’s statement of the account, and insisting upon the correctness of his own. There seems to have been no further reference to the check, in the correspondence of the parties, until the 9th day of September, when the defendant wrote the plaintiff as follows:

“ Ridgeway, Pa., Sep. 9, 1889.
“ T. J. Reynolds, Esq.
“ Dear Sir': Referring to your last, Feb’y 9, inclosing check, $85.37, purporting to bé in full, would say we to-day credit the check oh a\c, and use same. We cannot recognize it as a full settlement of a\c, as the check indicates.
“Yours, &c.,
[Signed] Empire Lumber Co., Lmt’d.”

Upon these proofs the referee found, as matter of fact, •“ that on the 9th day of February, 1889, the plaintiff paid the defendant, on account, the sum of $85.37,” to which finding the plaintiff excepted. The plaintiff also excepted to the refusal of the referee to find, on request, that the payment of $85.37 was in full of any claim of the defendant against the plaintiff.

We think the two exceptions were well taken. The principles involved, and the rule applicable to cases of this character, have been recently discussed by this court and the court of appeals in two cases in which the facts were somewhat different, and the results different, accordingly. See Fuller v. Kemp, 138 N. Y. 231; 52 St. Rep. 342, and Nassoiy v. Tomlinson, 65 Hun, 491; 48 St. Rep. 182. The discussion, pro and con, in those cases, was so full that we do not deem it necessary to repeat it in this case. We think we need only say that we find the present case to conform in its essential facts to the former of these cases, in which it was held that the payment there made and accepted was to be regarded as a payment in full of the claim in dispute between the parties. And so we hold in this case. It follows that the judgment appealed from must be reversed, unless the defendant consent to its modification by striking out the recovery on the counterclaim.

Judgment reversed, and a new trial granted, costs to abide the event, unless the defendant, within twenty days, stipulates to strike out from the judgment, as entered, the recovery on the eounter■claim of $27.75, in which case, the judgment, as modified, is affirmed, without costs of this appeal to either party.

All concur.