text:
    John H. Diver, App’lt, v. London and Lancashire Fire Ins. Co., of Liverpool, England, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Issubaitcb—Here—Obae contkact—When mistos meet.
    The plaintiff saw one of the defendant’s agents and asked him for insurance on his store and stock and what rate he would give. The agent said, “he would start at one and a half per cent and did not think he would have to go higher than two and a half per cent " The amount of insurance was then agreed upon. The i-aid agent wrote a policy in the defendant company the day before the fire, which destroyed the property sought to be insured, and notified defendant on the evening of that day, "who, on receiving the notice, declined the risk. The day after the fire the said agent, who knew of the fire, delivered a policy of defendant company to the plaintiff, and received the amount of the premium at the rate of two and a half per cent. Held, that the oral contract for insurance was not completed; that the minds of the parties had not met.
    2. Same—Covenant as to other insurance—When policy void.
    The policy in question contained the condition that if the insured should have any other insurance on the property insured, or any part thereof, without the consent of the defendant written on the policy, the policy should be void. There was other insurance on part of the property, of which defendant had no notice or knowledge. Held, the policy was void for that reason.
    3. Same—Non-payment of premium—Effect of
    The policy also contained the provision that the defendant should not be liable by virtue of the policy until the premiums be paid or a valid receipt given therefor duly impressed with the seal of the company. As the premium was not paid until after the fire: Held, there could tie no recovery on the policy.
    Appeal from a judgment entered upon a decision of the Monroe equity term.

      E. A. Nash, for app’lt; S. D. Bentley, for resp’t.
   Haight, J.

This action was brought upon a parol agreement for insurance. The court has found as facts that on or before the 5th day of May, 1885, the plaintiff saw Dailey, one of the defendant’s agents, and asked him for insurance on his store and stock and what rate he would give, and Dailey said “he would start at one and a half per cent, and did not think he would have to go higher than two and a half per cent.” The plaintiff then said to Dailey he could insure him $2,000 on the building. Dailey said he would like to have plaintiff put in some stock, as it would help a little in the rates—the insurance companies would view it a little better. Plaintiff then told Dailey he could put in $1,000 on the stock, and Dailey said he would insure plaintiff for $3,000.

That Dailey & White wrote a policy in the Continental Fire Insurance Company, on the 5th of May, 1885, for $1,000 on the building, and $500 on the stock, which was subsequently canceled by direction of that company after running about seven days, whereupon Dailey & White immediately wrote a policy in the Glens Falls Insurance Company for $1,000 on the building, and $500 on the stock, which policy continued some six days, when it was canceled by order of the company before May 18th, 1885, and then another policy was written in the German American Fire Insurance Company on the same property. This last policy was dated May 23d, 1885, and was ordered canceled by the company May 27th, 1885, and on the next day, May 28th, Dailey & White in place of it made out a policy of defendant which is not dated, but it was countersigned jby them May 28th, 1885.

The said last mentioned policy recites and undertakes that in consideration of the receipt of $37.50, and the representations, covenants and warranties of the insured, the defendant insured him against loss or damage by fire to the amount of $1,500, viz.: $1,000 on his new-frame store building and foundation wall; $500 on his stock (describing it and its location); loss, if any, payable to Mrs. A 0 Smith, as her interest might appear as mortgagee. Said policy provided “$1,500 other concurrent insurance permitted.” The said policy provided that the defendant agreed to make good to the plaintiff all such immediate loss not exceeding the sums insured, on the interest of the insured, except as in said policy provided, as should happen from the 28th day of May, 1885, at 12 o’clock at noon, to the 28th day of May, 1886, at 12 o’clock at noon. It was also provided in said policy that if the insured should have, or should thereafter make any other insurance on the property thereby insured, or any part thereof, without the- consent of the defendant written on the policy, the policy should be void. It also provided in said policy, that defendant should not be hable by virtue of said policy until the premium be paid, or a valid receipt given therefor, duly impressed with the seal of the company, and it was also provided in said policy that it was understood and agreed, that said policy was made and accepted in reference to the foregoing terms and conditions, which were declared to be a part of the contract and that they were to be used and resorted to in order to determine the rights and obligations of the parties thereto in all cases not therein otherwise specially provided in writing. The building and stock were destroyed by fire on the morning of Sunday, May 31st, 1885, and on Monday, June 1st, 1885, after the fire, the plaintiff paid the premium upon the policy, and the same was delivered to him by the defendant’s agent, who had full knowledge that the fire had taken place.

The first question presented is as to whether or not there was an oral contract to insure. It will be observed that the conversation as found by the court as having taken place between Dailey and the plaintiff, is to the effect that he would start the rate at one and one-half per cent., and did not think he would have to go higher than two and one-half per cent., thus indicating that the agent did not assume to take the responsibility of fixing the rate himself, but leaving it to be understood that he would make application to the companies that he represented for insurance, and that he would get the rate as low as he could. This is apparent from what subsequently followed, for it appears that he tried by writing policies in different companies which were rejected, until finally he wrote the policy in defendant company the day before the fire, and notified that company on the evening of that day, who on receiving the notice declined the risk.

True, the plaintiff further testified to another interview with Dailey, on the 18th or 19th of May, in which he states that Dailey told him he had established a rate at two and one-half per cent for his insurance, and that the witness replied to him “all right;” but the difficulty is the court, on request, refused to find that this conversation took place. Had this been found as a fact, a different question would have been presented. Without it, it is apparent that the contract was not completed, but was still held open for the agent to ascertain from the companies what rate he could give to the plaintiff on the property he sought to have insured. This interview with Dailey on the 18th or 19th of May is only testified to by the plaintiff, a party in interest; Dailey was not questioned in reference to it. The credibility of a party is always a question for the trial court, and the appellate court cannot say that the trial court should have believed the unsupported testimony of a party, and for that reason the finding is against the weight of evidence.

Again, in the making of a contract, the minds of the parties must meet. The agents of the defendant, with whom the contract is alleged to have been made, filled out a policy of the defendant, leaving in blank the date, and on the Monday after the fire this policy was accepted by the plaintiff and the premium paid. In the alleged oral agreement nothing appears to have been said as to the company or the conditions of the policy that should be issued, but the company may be understood as one represented by the agents making the agreement and the conditions those usually embraced in insurance company pohcies doing that class of business. At least, when the plaintiff paid and accepted the policy in the absence of evidence to the contrary, he must be deemed to have acquiesced in the conditions embraced therein as forming a part of the contract.

As we have seen, this policy contained the condition that if the insured should have other insurance on the property insured, or any part thereof, without the consent of the defendant written on the policy, the policy should be void. It also contained the provision that the defendant should not be hable by virtue of the policy until the premium be paid or a valid receipt given therefor, duly impressed with the seal of the company. It appeared that there was other insurance to the amount of $1,000 upon the stock of goods, a part of the property embraced in the defendant’s policy, in the Imperial Fire Insurance Company, and that that insurance was disclosed to or known to have existed by the defendant, or the defendant’s agents, and the court has so found. It further appears that the premium was not p’aid until after the fire occurred, so that under the conditions of the policy there can he no recovery, and there is no evidence from which we can say that these conditions were not understood as forming a part of the oral agreement.

It follows that the judgment should be affirmed, with costs.

Smith, P. J., and Bradley, J., concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    Elizabeth Quigley, App’lt, v. Louis J. Quigley, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1887)
    1. Divorce—Non-payment op alimony—When in contempt—Practice— Striking out answer and notice op appearance.
    In an action for divorce on the ground of adultery the complaint charged that the defendant committed adultery with one Anna Steele. The defendant answered, denying the charge. Afterward an order was made requiring the defendant to pay $100 alimony within thirty days from the date of the order. The defendant did not comply with the order, "but left the state, and afterwards, on plaintiff’s motion, an order was entered striking out the defendant’s appearance and answer by reason of his non-compliance with the order, and appointing a referee to take proof of the facts, etc. The referee reported that the defendant committed adultery with the said Anna Steele on a certain day. The report was confirmed and judgment entered dissolving the marriage and requiring the defendant to pay alimony and costs. Subsequently .the plaintiff had her name changed by proceedings in the county court. About six months after the judgment of divorce was entered an order was made setting aside the judgment, the orders and proceedings subsequent to the service of the answer. Among the papers upon which that was made were a petition and an affidavit of the said Anna Steele. Held, that the defendant was guilty of .a contempt in leaving the state and neglecting to obey the order requiring him to pay alimony. That by reason of his contempt the court had authority to strike out his answer and direct a reference and allow the action to proceed in the same manner as if the defendant had not answered or appeared.
    2. Same—Right op party in contempt.
    A party who is in contempt cannot successfully apply to the court for a favor connected with a matter out of which the contempt arose, although he may be heard on matters of strict right. That defendant was not entitled to the order.
    3. Same—Right op one not a party.
    The said Anna Steele, in her petition, asked that an order he entered allowing her to be present at the trial, with counsel, to cross-examine the witnesses, to testify as a witness in the cause, and to examine such other witnesses as she may he advised shall he proper. Held, that if the application had been made by said Anna Steele alone it must have been denied (on the authority of Olay v. Olay, 21 Hun, 610), for want of power.
    4. Same—Laches.
    The delay in making the application was in no wise excused or ex- ^ plained by said Anna Steele. Sett, that the delay alone would defeat the application.
    ■3. Same—Duty op coubt on application to set aside.
    While the court should take care that divorces are not granted on insufficient evidence, they should also see that when granted they are not set aside, even upon the application of a party, unless the application is made upon substantial and just grounds and with reasonable diligence. An equal degree of circumspection is required when the application is made by one not a party, and who could not have been made a party to the action.
    Appeal from an order of the Erie special term, setting aside the judgment of divorce granted herein by default, and other proceedings taken by and in behalf of the plaintiff on terms.

      William C. Watson, for app’lt; George Bowen, for resp’t.
   Smith, P. J.

This is an action for divorce on the ground of adultery. It was commenced 24th February, 1885, by service of summons on defendant personally. The complaint, which was verified on 17th April, 1885, charged that the defendant, who was a music teacher in the state institution for the blind, at Batavia, committed adultery with Anna Steele, a pupil and inmate of the institution, on numerous occasions during the period of three years, next preceding the 1st of April, 1885. The defendant answered, denying the charges contained in the complaint. On 2d June, 1885, an order was made requiring the defendant to pay $100, alimony, within thirty days from the date of the order. The defendant did not comply with the order, but left the state, and on 18th January, 1886, upon plaintiff’s motion, an order was entered striking out the defendant’s appearance and answer by reason of his non-compliance with the order, and appointing a referee to take proof of the facts alleged in the complaint, and to report the same to the court with his opinion. The referee took proofs and reported, among other things, that on the 18th of June, 1884, and at divers other times in that year, the defendant committed adultery with the said Anna G-. Steele, in the said institution, and on 16th February, 1886, the report was confirmed by the court, and judgment was entered dissolving the marriage of the parties, requiring the defendant to pay §200 a year for the support of the plaintiff and $100 a year for the support of their minor son, and also to pay the plaintiff’s costs of the action, which were fixed at the sum of $201.44. Subsequently the plaintiff procured the name of herself and® of her son to he changed from Fingley to Englehart, which was her name before marriage, by proceedings in the county court, at an expense of fifty dollars. Thereafter, and on 19th August, 1886, the order now appealed from was made, setting aside the judgment, the order of 18th January, 1886, and all proceedings taken on: the part of the plaintiff, and all orders granted in the action subsequently to the service of the defendant’s answer. Among the papers upon which that order was made were a. petition and an affidavit of the said Anna Gr. Steele, which, will be referred to more particularly farther on.

In determining whether the order should be affirmed, it. will be useful to consider it first, as it relates to the defendant^ That the defendant was guilty of a contempt, in. leaving the state and neglecting to obey the order requiring him to pay alimony, cannot be questioned. Ñor is-there any doubt that by reason of his contempt, the court had authority to strike out his answer, and direct a reference, and allow the action to proceed in the same manner as if the defendant had not answered or appeared. And the order made to that effect was in accordance with the well-settled practice of the court. Farnham v. Farnham, 9 How. Pr. Rep., 231; Walker v. Walker, 20 Hun, 400; S. C., affirmed, 82 N. Y., 260, and authorities cited by Forger, Ch. J.

The defendant has not purged his contempt, and it is well-settled that a party who is in contempt cannot successfully apply to the court for a favor connected with a matter out of which the contempt arose (Barker v. Barker, 15 How. Pr., 568; Brinkley v. Brinkley 47 N. Y., 40), although he may be heard on matters of strict right. Id. It appears from the notice that the defendant’s motion was-based in part upon certain alleged irregularities, and partly was addressed to the favor of the court. It was granted, solely as a favor and upon terms. But as has been seen, the defendant, being in contempt, was entitled to no favor, until he had purged the contempt, and that he has not. done. So far as he is concerned, therefore, the order is unwarranted, and it is evident from the opinion of the special term judge contained in the appeal papers that he-granted the order solely in view of'what appeared to him. to be the interest of Anna Steele.

How stands the case with respect to her ? She is not a. party to the suit. The motion was not made by her or in her behalf. The order is record evidence of that fact, as it-recites that the motion was made on behalf of the" defendant. For aught that appears, her petition was used simply as one of the defendant’s moving papers, to strengthen his. case. It contained a formal prayer that an order be entered allowing her to be present at the tria£ with counsel, to cross-examine the witnesses, to testify as a witness in the cause, and to examine such other witnesses she may be-advised shall be proper, but apparently she made no application to the court and no part of that relief was granted by the order. So, that while the order sets aside the judgment and permits the defendant to come in and defend, it provides no mode by which Anna Steele, who for convenience will be referred to as the petitioner, can rightfully intervene in the action or upon the trial, and she will be dependent, for even notice of the trial, upon the favor of one party ór the other. That circumstance is not very prejudicial to her interests, perhaps, as she can probably rely on getting notice from one of the parties; but it shows that she is content with an order which, refusing the relief suggested in her petition as needful to herself, grants all that the defendant can desire.

But let us suppose that the application was made in the interest of the petitioner alone, and that the only effect of the order will be to afford her relief, which, as we have seen, is the only view in which it can be sustained. The sole ground upon which she can ask to be permitted to intervene is that she is incidentally affected by the judgment. That she is so affected by it is true. So, every child, who, in effect, is pronounced illegitimate by a decree of divorce, is in a like unfortunate position, but there is no practice in this state permitting a child so situated to intervene in the action. The English practice of allowing the party with whom the adultery is alleged to have been committed to come in as co-respondent, does not obtain here. There is a single reported case in this state, in which relief similar to that suggested in the petition of Anna Steele was granted in a divorce case. Clay v. Clay, 21 Hun, 610. But there the application was made before judgment, and also before any proofs were taken, and it is apparent that the court thought in that case that they were going to the very verge of their discretionary authority. The defendant in that case had made default, and thereupon the petitioner asked leave to come in and answer and depend on the merits, but that was held to be beyond the power of the court to grant. Here, however, the defendant having lost the right to answer, not by a mere default, but by a flagrant contempt of the order of the court, the petitioner obtains indirectly through an answer and defense interposed in the defendant’s name, what the court has not power to grant to her directly. Subsequently to the decision in Clay v. Clay, Mr. Justice Donohue expressed the opinion at chambers that by reason of the danger of collusion in thus permitting what is substantially a full litigation without personal responsibility, that case should not be treated as a general precedent. The case now before us shows the wisdom of that remark. Without imputing collusion, in an offensive sense, it is obvious that in the motion which resulted in the order under review, the petitioner and the defendant acted in concert, the petitioner having furnished the defendant with her petition and affidavit, and the notice of motion being signed by one attorney in the name of each. And by this concerted action relief has been obtained, to which neither party would have been entitled moving alone. Had the motion for leave to answer been made by the defendant in his own interest solely, it would have been denied because he was in contempt; had it been made by the petitioner alone, it must have been denied on the authority of the Clay Case for want of power.

But let it be assumed, for' argument, that the court has power to make the order in the interest of the petitioner; nevertheless, we think, the motion should have been denied by reason of her laches. That she was informed of •the action; of the time when it was commenced; of the time when the complaint was served, and of the charges •contained in it respecting herself, appears by her petition, but she does not state when she obtained the information, nor why the statement is omitted, and as she is to be presumed to have presented her case as strongly as the truth would permit, the inference follows that a statement of the time when she learned those facts, would not have tended to her advantage. That she knew, or was informed, of the fact that the defendant had answered denying the charges in the complaint, appears from her statement that she had no notice that the answer had been stricken out, and that she expected that the cause would be tried upon the defendant’s denial, “and that an opportunity would be afforded her through the defendant to establish her innocence of the charges made against her.”

Upon what was such expectation based ? She is no exception to the maxim that every person is presumed to .know the law. For aught that appears, she was of full age and good understanding. She had made no application to the court, for leave to intervene in the action, or at the trial, or for relief of any kind. The order of reference was not executed until nearly a year after the suit was begun. The judgment was entered in February, 1886, and she does not deny that she knew the fact at the time, yet the petition was not made until about five months thereafter. This delay is in no wise excused or explained. Such delay, unexplained and unexcused, would defeat a like application by a party to the suit, and the obstacle it presents, is equally formidable in the case of a third person appealing to the sound discretion of the court.

The papers used on the motion present another fact which we think is fatal to the application, considered as that of the petitioner. The judgment roll was used on the motion, and the proofs contained in it taken by the referee, made at least a prima facie case in respect to the charges connected with the petitioner. It is true that the petitioner in her affidavit denied the truth of those charges. But in 'opposition to the motion, an affidavit of the plaintiff was read, in which she stated that in a conversation which she had with the petitioner, before the suit was commenced, the latter admitted that she had received numerous love letters from the defendant, which she had burned, and the affidavit further averred that when charged by the plaintiff with “having been intimate” with the defendant, she admitted that she had been, and she asked plaintiff to forgive her. More was said to have been stated by the petitioner, in that conversation, and the whole of the conversation, as detailed in the affidavit, justified the inference that the purport of the admission was that there had been criminal intercourse between the petitioner and the defendant.

The statement that such admission was made stands uncontradicted. If true, it should defeat the application. True, it was contained in an opposing affidavit, to which no reply could be made on the hearing of the motion. But leave might have been asked to prepare replying affidavits, the motion to stand over for the purpose; or, if no postponement could be had, then that the motion be denied with leave to review. Nothing of the kind was asked for, and the motion was submitted and decided, and the appeal is to be disposed of, with the uncontradicted statement of fact of such admission in the case. The affidavit of the plaintiff also alleged an admission to her, by the defendant, of criminal intercourse between him and the petitioner. That averment also is not controverted.

The only terms imposed by the order are the payment of the amount of alimony fixed by the order, for non-compliance with which the defendant was in contempt, and payment of the costs of opposing the motion. No mention is made of the costs of the plaintiff in the proceedings taken by her subsequently to the making of the order, including the proceedings in the county court for a change of name, which she conducted, relying on the validity of the judgment of divorce. In that respect, the terms imposed seem inadequate. Perhaps this feature of the order, although apparently unjust to the plaintiff, is not enough, of itself, to warrant a reversal, but it is a circumstance to be considered in disposing of the appeal.

For the reasons stated, we are not prepared to sanction the practice for which an affirmance' of the order, in the circumstances of this case, would furnish a precedent. Actions for divorce involve public interests as well as-private rights. While the courts should take care that-divorces are not granted on insufficient evidence, they should also see that, when granted, they are not set aside, even upon the application of a party, unless the application is made upon substantial and just grounds, and with reason- • able diligence. An equal degree of circumspection, to say the least, is required when the application is made by one not a party, and who could not have been made a party to-the action.

The order should be reversed and the motion denied, with ten dollars costs and disbursements, to be paid by the-defendant.

Haight and Bradley, JJ., concur.


author: Haight, J.

text:
    Susan A. Newman, Resp’t, v. Robert T. French et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    Rent—Action fob—Breach of lessor’s covenant to repair, no bar to.
    A covenant contained in a lease binding the lessor to keep the demised premises in repair, is independent of a covenant on the part of the lessee to pay rent, and a breach of the former is not a bar to an action for rent by the lessor.
    Appeal from an order of the Monroe circuit granting anew trial upon a motion made upon the minutes of the-judge after verdict ordered in favor of the defendants.

      W. H. Kenyon, for app’lts; Walter F. Hubbell, for resp’ts.
   Haight, J.

This action was brought to recover rent reserved by a lease of real estate to the defendants. The lease contained a covenant on the part of the plaintiff to keep the buildings in good repair" and condition for the purposes of the business contained therein. The answer admitted the lease, and that the defendants entered into the possession of the premises thereunder, but alleged that-one of the buildings was subsequently destroyed by fire,, without fault of the defendants, and that the plaintiff had. neglected and refused to build the same. The answer also-contained a counter-claim in which the defendants demanded judgment. The plaintiffs’ reply admitted the destruction of one of the buildings by fire, and alleged that the» fire originated solely through the gross carelessness of the-defendants while deliberately and willfully engaged in roasting or heating almond shells, or some other equally inflammable substance, for the purpose of using the same-in the business referred to in the lease, as an adulterating material, contrary to the statute in such case made and. provided; and that while so engaged the defendants well knew the hazard of the same, and that in so doing there was extreme danger and great probability that the same would cause the destruction of the building by fire.

Upon the trial the court directed a verdict upon the pleadings in favor of the defendants for the amount due upon their counter-claim. But on a motion for new trial made upon the minutes it ordered a new trial upon the ground that the plaintiffs’ covenant contained in the lease to repair is independent of the defendants’ covenant to pay rent, and that it was error for the court to hold that the performance by the lessor was a condition precedent to any liability on the part of the defendants for rent.

In the case of Allen v. Culver (3 Denio, 284), it was held that the covenants to pay rent and to repair were independent, and that the lessee was bound to pay a proportionate part of the rent on account of the buildings remaining uninjured notwithstanding the default in rebuilding.

In the case of Whitebeck v. Skinner (7 Hill, 53), it was" held, that in assumpsit to recover the rent of demised premises the tenant may avail himself" of a breach of the landlord’s agreement to repair by way of recoupment though not as a set-off.

In the case of Kelsey v. Ward (16 Abbot P. Rep., 98), it was held, that a breach of the landlord’s contract to improve or repair the demised premises, is no defense to his demand for rent; that it was available only.by way of counterclaim or in a cross action.

In the case of Speckles v. Sax (1 E. D. Smith, 253), it was held, that although the terms of a lease bind the landlord to repair, his neglect to do so will not authorize the tenant’s abandonment of the demised premises, unless by the terms of the agreement the repairs were made a condition precedent to the obligation to occupy; that the landlord’s failure to repair, where he is bound to do so by his agreement with the tenant, will not amount to an eviction but only to a breach of covenant.

In the case of Myers v. Burns (35 N. Y., 269), it was held, that in an action for rent the defendant can, under a covenant of the landlord to keep the premises in repair, set up as a counterclaim the amount expended by him in the necessary repair of the premises; and also damages sustained by the loss of the use of certain parts of the premises rendered untenantable for want of repair.

In the case of Kelsey v. Ward (38 N. Y., 83), it was held, "that an action for rent is not barred by the failure of the lessor fully to perform his contract, where the lessee enters into possession and occupies the premises; that the remedy of the lessee is by recouping from the rent such damages as they have sustained by failure of the lessor to fulfill his. contract, or to bring a separate action for the recovery of such damages. See, also, Cook v. Soule 1 Thomp. & Cook, 116; S. C., 56 N. Y., 420; Hexter v. Knox, 7 Jones & Spencer, 109; Harger v. Edmunds, 4 Barb., 256; Hallet v. Wylie, 3 Johns., 44.

These authorities appears to sustain the decision of the-trial court in granting the motion for a new trial, where the motion for a new trial is made upon the minutes, motion costs only are allowable. 3 Wait’s Practice, 512.

The order should, therefore, be affirmed, with costs to-abide event.

Smith, P. J., and Bradley, J., concur.


author: McAdam, C. J.

text:
    Frank M. Katz, Resp’t, v. August Schwab et al., App’lts.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Release to one oe two joint contractors—Illegal condition attached-TO DELIVERY.
    The release of one of two joint contractors releases both. A general release delivered to the debtor is presumptively intended to become operative, and the creditor cannot destroy this presumption by alleging a delivery on. conditions which are fraudulent, and therefore illega
    Appeal from a judgment entered upon the verdict of a. jury against the defendants.

      Simon Sultan, for app’lts; Rose & Putzel, for resp’t.
   McAdam, C. J.

After the cause of action arose, the plaintiff gave the defendant, August Schwab, a receipt in full, and afterwards a general release under seal. Each expresses-a consideration of $300. Both are dated ¡November 13, 1878, and the release appears to have been acknowledged on that day. The defendants testify that the papers were delivered and money paid at the same time. There were conflicting claims to the fund in the defendant’s hands. The plaintiff claimed it, and Goestrupp & Cardanary claimed it, and had .sued to recover it. August Schwab testifies : Mr. Katz came to me several times. I was sued by Goestrupp & Cardanary. He sent me a notice. I had no right to pay the money over to Mr. Kurtz. He wanted a settlement. I told him I was not able to make a settlement with him; the money was stopped. Also, I said, I spoke with my lawyer; then I told Mr. Katz ‘ too much danger to pay the money over to you,’ better after awhile, I am willing to pay this $300 and take my release, that he has no claim against me.” Max Schwab swears that the settlement was in full. He-says, I saw my father hand Mr. Katz the money. I believe it was $300. I asked Mr. Katz at the same time if the thing in regard to the hotel was settled, and he said yes.” The release was given to the defendant, August Schwab, and in the usual course of things it would have discharged both. defendants from their joint liability in respect to the fund to which it related (Cowen’s Treatise, Kingsley’s ed., § 1112.) The release was delivered and presumptively was intended to become operative. The defendants swear that the intention was to make it operative, and they have been consistent in maintaining this position ever since the release was given.

The plaintiff attempts to get rid of the effect of the release by alleging that its delivery was conditional, and for a special purpose, to-wit- of enabling the defendants to use it in defense of the suit brought by Goestrupp & Cardanry. It could be .lawfully used in that suit only as an operative legally delivered instrument, and the plaintiff will not be permitted to assert that the release was delivered for use as a legal defense in that action, to be valid for that purpose, and be allowed after the fraud was successful in that suit, to prove that there was a secret reservation and understanding that the release was not to be valid as between the parties to it, any such reservation or understanding is repugnant to the nature of the instrument and to every notion of propriety and cannot meet the approval of any court of justice. The release is in legal form, sealed and acknowledged and its delivery on payment of $300 valid, but the condition sought to be imposed void. Ex turpi causa non oritur actio. The law will not enforce or give effect to any such condition, or aid it in any form or phase. The case of Dow v. Platner (16 N Y. 562); Delemater v. Bush (45 How. Pr., 382), and Nellis v Clark (20 Wend., 24), illustrated the rule stated. In the last case cited, the court held that where a contract is entered into for fraudulent or illegal purposes, the law refused its aid to enable either party to disturb such parts as have been executed or carried into effect Upon this principle, the release having been delivered as an executed instrument upon payment of the consideration expressed, the law will refuse its aid to enable the plaintiff to disturb it on the ground that the condition of its delivery was illegal. Upon the entire case, we are of opinion that the complaint should have been dismissed on the conclusion of the trial, and that the exception to the refusal is well taken. If we are right in this conclusion, it is unnecessary for us to examine the other exceptions taken during the trial, one of which relates to the amendment allowed thereat, or to consider the effect of the infancy of the defendant Max Schwab, at the time of the transaction out of which the plaintiff bases his claim. For the reasons aforesaid, the judgment appealed from will be reversed and a new trial ordered, with costs to the appellant to abide the event.

ITehrbas, J., concurs.


author: Hyatt, J.

text:
    Harriet A. Wheeler, as Administratrix, App’lt, v. Joseph Kuntz, et al., Resp’ts.

      (City Court of New York, General Term,

      Filed April 22, 1887.)

    1. Evidence—Competency—Code Civ. Pro., § 829.
    ' On the trial of an action brought by an administratrix to recover on a note belonging to her intestate which was made by defendants, one of the defendants was asked, if at the time of making a certain assignment (in connection with which the note was given), and subsequently, the intestate was a creditor of said firm. Held, the question should have been excluded under Code Civ. Pro., § 827.
    3. Same—Practice—Objections and exceptions.
    Where a proper objection and exception is once taken to either the competency of a witness or to the character or admissibility of the evidence, the objection and exception need not be repeated to subsequent questions of the character covered by a former objection and exception.
    Appeal from a judgment entered upon the verdict of a jury in favor of defendants by direction of the court.

      Henry Daily, Jr., for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Hyatt, J.

This suit was brought to recover upon an extra note given, to adopt the view assumed by the respondent, as an inducement to sign a composition agreement. The court below decided that no recovery could be had thereon.

It will not be disputed that notes given as a condition to signing a composition deed in fraud of other creditors, are void.

It appears from the judgment record that this action was commenced by Walter J. I. Wheeler before his death; that the defendants, Joseph Kuntz and Louis J. Kuntz as part- • ners, made their promissory note on May 18, 1881, whereby they promised to pay, thirty days after date, to the order of Michael Kuntz, the sum of $1,000, and duly delivered said note before its maturity, to said Michael Kuntz, and that he, afterward, and before its maturity, endorsed said note and delivered it to Wheeler for value; and that when the note came due, payment was demanded, but it was not paid.

The defense was interposed that Wheeler, in fraud of the other creditors of said J. and L. F. Kuntz, and as a condition of signing a composition deed, _ extorted from the defendants an extra payment of the said claim, contrary to the terms of the said deed, and that the endorsement of Michael Kuntz was forced and exacted from him; that the said note was wholly void and invalid for the fraud alleged and for want of any consideration.

The answer admitted all the allegations of the complaint; the defendants had the affirmative; they introduced in evidence the note in suit and the assignment of J. & L. F Kuntz to Michael Kuntz; they called the defendant Joseph Kuntz •as their first and only witness.

We find that the exceptions taken to the testimony of the defendant Kuntz, are material and valid. The defendant, Kuntz was asked if, at the time of making the said assignment and subsequently down to May, 1881, Mr. Wheeler was a creditor of the said firm. This question involved a personal transaction with Mr. Wheeler; it was incompetent to be thus proven on account of his death. The objection taken was proper, and the court erred in overruling it, to which exception was duly taken.

On the trial of the action it was conceded that Wheeler was dead, and the testimony under exception was concerning personal transactions between the defendant witness and the deceased. It was also an attempt to prove that a debt did or did not exist between the defendants J. & L. F. Kuntz and the deceased, such proof was not competent or admissible. It was in violation of the provisions of section 829 of the Code of Civil Procedure. Chadwick v. Fonner, 69 N. Y., 404; Code of Civil Procedure, section 829; Koehler v. Adler, 91 N. Y., 657.

It appears from the record that this class of evidence was received and admitted throughout the progress of the trial; such evidence was wholly incompetent and inadmissible, and it was not necessary to renew the objection and exception each time after the objection had once been properly made.

It was error of the court to receive such testimony, Hobart v. Hobart, 62 N. Y., 83; Schoonmaker v. Wolford, 20 Hun, 166.

The objections which gave rise to the exceptions under consideration were made to questions to a defendant which related to personal communications and personal transactions between him and the plaintff’s intestate. The questions objected to were inadmissible, and the defendant was an incompetent witness to testify on the subject inquired of. He was a party to the action and directly interested in the event of it. Doughty v. Doughty et al., 25 Wek. Dig., 79; Holcomb v. Holcomb, 95 N. Y., 316.

The rule is well settled that when a proper objection and exception is once taken to either the competency of the witness or to the character or admissibility of the evidence, the objection and exception need not be repeated to subsequent questions of the character covered by a former objection and exception.

The evidence admitted upon the trial and excepted .to, was incompetent and illegal; it follows therefore, that the judgment should be reversed and a new trial granted, with, costs to the appellant to abide the event.

McAdam, G. J., concurs.


author: Me Ad am, C. J.

text:
    Robert A. Taylor, App’lt, v. The Dry Dock, East Broadway and Battery Railroad Co., Resp’ts.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Negligence—Effect of admissions on cross-examination.
    Where the only witness to prove negligence against the defendant is the' plaintiff himself, and he .on his cross-examination puts the blame of the accident upon himself, he cannot recover. The evidence of such a witness,, is like a chain, not stronger than its weakest link. If the plaintiff’s evidence does not justify a verdict in his favor, it is the duty of the court to. non-suit.
    Appeal from a judgment entered on a direction made at' the trial term dismissing the complaint.

      L. Z. Kinstler, for app’lt; J. M. Scribner, for resp’t.
   Me Ad am, C. J.

We will assume that it is not negligence per se for a passenger to stand upon the front platform of a car, and that it is negligence for the driver of the car to start-it before the passenger has had a reasonable opportunity to-alight. These propositions are consistent with the theory of the plaintiff’s case, but the evidence of the plaintiff establishes the fact that the injuries he received were not the result of the driver’s' negligence but his own. True, in portions of his testimony, he inculpates the driver, and if these-portions stood alone, a prima facie case of negligence was made out against the defendant, sufficient, to require the trial judge to submit the question to the jury, but in portions of his cross-examination, he destroyed the effect of his previous testimony, and throws the blame of the accident upon himself. The plaintiff furnished the only evidence showing how the accident occurred, and in such a case the evidence of a party is much like a chain, it cannot be stronger than its weakest link. (The testimony is here recited at length.) The car was on a curve turning from Canal street into Yarick, and the evidence seems to show that as the car was turning the curve the plaintiff attempted to alight without waiting for the car to stop, when he fell and received his injury. The plaintiff was to an extent under the influence of drink, and his lameness and the drink combined no doubt contributed to the accident. The circumstances, to state them mildly, point as clearly to absence of negligence on the-part of the defendant, as to its presence, and in such a case it is proper to dismiss the plaintiff’s complaint. If the jury had found for the plaintiff on his evidence, the verdict would have been set aside, and in such a case the trial judge is under no obligation to send the case to the jury, but may make the only direction the case admits of, i. e., a non-suit. We think the case was properly disposed of and that the judgment should be affirmed with costs.

Nehrbas, J., concurs.


text:
    George F. Glynn, as Administrator of John Brady, Deceased, Resp’t, v. The Seaman’s Bank for Savings, in the City of New York, App’lt.

      (City Court of New York, General Term,

      Filed April 22, 1887.)

    1. Gifts—Donatio causa mortis—Necessary elements.
    The gift must he made in view of the donor’s death and the donor must die, without having made a personal revocation of the same, of his' then existing ailment or peril. There must he a delivery to the donee and a complete transfer of possession of the thing and the title thereto. Delivery of the pass-book with intent to pass title is effectual to transfer the balance owing by the bank.
    2. Verdict—Direction of verdict—Undisputed evidence.
    If the evidence stands undisputed as to all material facts at issue there is no question for the consideration of the jury, and it is error to refuse to direct a verdict.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

      Strong & Cadwalader, for app’lt; Leo Woodward Wicker - sham, of counsel; Raphael J. Moses, Jr., for resp’t.
   Hyatt, J.

This action was brought to recover a deposit with the defendant by John Brady, plaintiff’s intestate. Mr. Brady died May 20, 1885, the bank paid the money to Willis H. Smith, July 10, 1885, upon his producing the passbook with proof that it and the deposit represented thereby-had been duly transferred by Brady to Smith shortly before: his death (May 12, 1885), as a donatio mortis causa.

A donatio mortis causa is when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered, to another the possession of any personal goods, to keep, in case of his decease.” Jacobs Law Dic., 1st Am. Ed., vol. 15, p. 23. Bouvier (Law Dic. Tit., Donato Mortis Causa) adopts Jacobs’ definition, he says, among the requirements to its validity “ that the gift may be made by the donor in peril of death and to take effect only in case the giver dies.”

These propositions have the support of a long line of cases. Story says: “It is properly a gift of personal property, by a party who is in peril of death, upon condition, that it shall presently belong to the donee, in case the donor shall die, but not otherwise. To give' it effect, there must be a delivery of it by the donor, and it is subject to be defeated by his' subsequent personal revocation, or by his recovery or escape from the impending peril of death. If no event happens which revokes it, the title of the donee is deemed to be directly derived from the donor in his life time, and, therefore, in no sense is it a testamentary act.” 12 Eq. Cases, pages 606, 607. The uncontradicted evidence is, that the plaintiff’s intestate, Brady, and Smith (the donee), had been confidential friends for about thirteen years, the most intimate terms of friendship existing between them; that Brady, who worked in the country, but coming to New York from time to time, stayed with Smith at his boarding-house; that Smith attended to all Brady’s business, and had the custody of pass-books, representing Brady’s deposits in three savings banks, one of them being the Seaman’s; that he had no living relations except Geo. W. Glynn (the plaintiff), who was the son of Arthur Glynn, his half brother on the mother’s side.

Mr. Britton testified to the occurrence on May 12: “I found Brady lying in an inner room, and I spoke to him and said: ‘ How do you feel John?’ He mumbled out something to me, after which I came out and said to Mr. Smith. ‘ That’s a very sick man.’ Previous to this Mr. Smith told me that he had Brady’s bank books, and I told him he ought to give them to him and see what he would direct to have done with them; I told Mr. Smith to ask Brady what he wanted done with his bankbooks. Mr. Smith then got the package of books and went into the room and said: ‘ John, you are very sick, or seem to be very sick. If anything happens what shall I do with those books?’ Mr. Brady said: ‘ 1 want you to have them; they are for you.’ Then Mr. Smith said. ‘ Will I send for any one?’ Mr. Brady said: ‘ I have no one to send for,’ or something of that kind. Q. Where were the_ bank books during this interview? A. Brady took them in his hand from Mr. Smith, and held them about a minute, and said to Mr. Smith’s question whether he would send for any one: ‘ I have no one to notify; you can have them, they are for you.’ ”

Mrs. Blauvelt described the occurrence as follows: “When Mr. Smith came in, I said to him that he had better speak to Mr. Brady, and see what he would like to have done with his books and papers. He said he would do so, and after-wards he went to his trunk and got his books and papers out and took them to Mr. Brady, and said: * John, you are very sick; in case you should die, what would you wish to have done with your books and papers?’ Mr. Brady said: ‘ I give them to you; I want you to have them,’ and he handed them back again to Mr. Smith.”

Willis H. Smith stated in his affidavit, which the plaintiff, by using in pagt, enabled the defendant to read in evidence: “ That on the 12th of May, 1885, the said John Brady, then being sick at 262 Eighth avenue, in this city, and being confined to his bed, and as this'deponent believes, in danger of death from the disease from which he was then suffering, handed to this deponent the three bank-books above mentioned,” including the one in this case, and said to this deponent that if anything happened to him (Brady) he wanted deponent to have said books and the money mentioned in them. That this deponent then took the said bank books from said Brady, when they were so handed to him, and has ever since had, and now has the possession thereof.”

This testimony will not justify the finding that a testamentary trust was created (1 Story Equity Juris. [12th ed.], 606); nor a valid trust of any kind, there being no expressed intention to create a trust and no ascertained beneficiary. (Gilman v. McArdle, 99 N. Y., 458). It will not justify the finding that the transaction was a contract or promise to make a gift in futuro and therefore nudum pactum because there was an actual delivery and transfer of dominion; it was not a continuation of former custodianship of the sub]ect-matter of the gift (the pass-books representing the deposits) the evidence is, that Brady said at the time and in peril of death, “you can have them, they are for you” (Britton’s testimony). “I give them to you, I want you to have them,’ “he handed them back again to Mr. Smith.” (Blauvelt’s testimony).

This language is essentially different from that upon which the decision of the court of appeals rests in the case of Trow v. Shannon 78 N. Y., Rep., 451. It was there held that certain statements failed to establish an executed gift at the time they were made. The plaintiff testified that the alleged doner instructed him that “ if anything should happen to her (the meaning of which expression seems to have been well understood) to take possession of all that was in the safe and deposit it in the Safe Deposit Company, and keep his own bonds himself.” On cross-examination he varied his language by saying that “she told him to take charge if anything should happen, if she was being arrested, or had any trouble with anyone, and take the bonds and deposit them in the Safe Deposit Company and to take the 110,000.”

The learned judge, writing the decision of the court, said: “The instruction to the plaintiff to ‘take possession’ or ‘ take charge if anything should happen,’ excludes the idea that an immediate delivery was intended, and indicates that her intention was to retain the possession and control of the bonds, until or unless something should happen to render it desirable that they should be out of her possession. So long as the authority to him to take possession remained conditional and unexecuted, there was no completed gift.”

In the case at bar, actual possession and dominion were given, accompanied by positive declarations of intent.

In our opinion the evidence establishes#!! the elements necessary to a valid gift causa mortis.

The gift was made with a view to the donor’s death; there was no personal revocation by him; he died of his ailment or peril then existing; there was a delivery to the donee and complete transfer of possession of the thing and title thereto. Grymes v. Hone, 49 N. Y., 17.

It is well settled that title to a deposit in a savings bank may pass by delivery of the pass-book representing it. Penfield v. Thayer, 2 E. D. Smith, 306.

In this case the book was on its face declared to be “ The depositor’s voucher, and the evidence of his property in the bank.” Delivery of the pass-book with intent to pass the title was therefore effectual to transfer the balance owing by the bank.

The case of Basket v. Haskell (107 U. S. Rep., 672), cited by the respondent, is not at variance with this doctrine. The donor there gave the donee a certificate of deposit endorsed “Pay Martin Basket, of Henderson, Kentucky; no one else, then, not till my death.”

The court held this endorsement ineffectual to transfer the title, the ground of the decision being, that the donor did not part with the possession of the fund, the donee could not get it, it amounted to a check payable after death, which upon all the authorities is invalid.

But the court say: “The certificate was payable on demand, and it is unquestionable that a delivery of it to the donee, with an endorsement in blank or a special endorsement to the donee, or without endorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio mortis causa.

There remains but one question for consideration. Did the donor deliver the property to the dohee with the intent to vest the title of the same in the donee?

The authorities hold that intent is a necessary element of the transaction. Jackson v. Twenty-third Street R. R. Co., 88 N. Y., 526.

In our judgment the evidence unquestionably establishes the fact that the donor made a- valid donatio mortis causa with the intention as clear and unmistakable as act and speech could possibly accomplish, to vest the control, dominion and title of the property in the donee, and we utterly fail to find in the case a scintilla of evidence to sustain a contrary view.

The learned, counsel for the respondent suggests to the court in his brief a feigned case, presumably as one in his opinion parallel with the case at bar, to wit; “ If a clerk hands me a law book, and after examining it, I hand it back to him, this may be with intent to present it to him, or may be merely to have it returned to the library.” Even so, but can it be supposed by any reasonable person that the counsel would-be willing to submit to a jury for their decision, the question as to what his intention was in that case?

In the light of the evidence it is difficult to see why his case, the one at bar, should be submitted to the jury upon the question of the donor’s intention.

The gift was proven by the donee and two disinterested witnesses, they agree in all material points as to what occurred and their statements are unimpeached; there was no evidence tending to show fraud or imposition upon Brady to induce the gift to Smith; the intention of the testator was clearly manifested, by his acts and declarations; the evidence stands undisputed as to all material facts at issue; there was no question for the consideration of the jury. Cornell v. Cornell, 12 Hun, 312.

The court erred in refusing to direct a verdict for the defendant upon the evidence. The verdict of the jury was contrary to the weight of the evidence. It follows, therefore, that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

McAdam, C. J,, concurs.


author: McAeam, Ch. J.

text:
    W. Hallett Phillips, Resp’t, v. Daniel N. Stanton et al., App’lts.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Attorney’s fees—Entire contract—Legal services—How estimated— Bill oe particulars—What to contain.
    The plaintiff, an attorney and counsellor, was retained by the defendants to defend an action in the United States court. He was successful, and rendered a bill of particulars itemizing the services and charging $1,500 for the whole. The defendant applied for a further bill requiring the plaintiff to put a separate value upon each item. The application was denied. On appeal: Held, that the defendant was not entitled, as of right, to the further bill; that the services were rendered under one entire contract, and the plaintiff was entitled to put a gross value upon the whole. The professional standing, eminence and ability of the person who renders services, the manner of their performance, the magnitude and difficulties of the case and the success of the undertaking, are all considerations to be kept in view in fixing the value of professional services at the termination of the litigation.
    The plaintiff, an attorney and counselor at law, sues to Tecover for services performed and moneys expended at the request of the defendants in defending an action brought in the supreme court of the United States by the state of Alabama. The action is upon a quantum, meruit, and not upon any special agreement as to the rate of compensation. The complaint charges that the services were reasonably worth §1,500, and that the moneys expended amounted to thirty-two dollars. The bill of particulars furnished, recites that the services for which compensation is daimed were rendered in a suit, the object of which was to recover from the defendants the sum of §3,000,000 as damages sustained by the state of Alabama from acts of the defendants, ’who were officers and stockholders of the Alabama and Chattanooga Railroad Company. It also recites the fact that the state of Alabama was the endorser of the bonds of the railroad company, and had loaned to it State bonds for a large amount, and states the additional fact that the decision of the court was in favor of the defendants, whom the plaintiff there represented as counsel. An itemized account is also furnished giving the particulars of the services rendered, with the date and order of their performance. No fault is found with the bill in any of these respects. The objection urged is that the estimate value is not put-upon each particular item or service, and the object of the defendant’s motion was to require the plaintiff to furnish these different estimates of value going to make up the-aggregate sum claimed. The plaintiff insists that as his-charge of $1,500 “is made as a whole,” and consists of successive efforts to accomplish one object, that he cannot be-required to put a separate value upon each detail or item of the service. The court below coincided with this view,- and declined to require the plaintiff to give the desired-information, and from the order denying the motion the defendant appeals.

      Alexander & Ash, for app’lt; Stanley, Clark & Smith,, for resp’t.
   McAeam, Ch. J.

Under the broad rule declared in Dwight v. Germania (84 N. Y., 493), Tilton v. Beecher (59 id., 176), People v. Tweed (63 id., 194), the court below might have exercised its discretion, and ordered the plaintiff to furnish a further bill of particulars, giving the separate estimates of value on each particular item of the service rendered, for on the cross-examination of the plaintiff the defendant, will be entitled to test the propriety of the aggregate charge-by assailing the value of the items that compose it. But-the court below denied the application, and the question presented to us, is whether the court below erred in disposing of the matter as it did, and the proper consideration of the subject requires us to refer to the adjudged cases’bearing upon the relation of an attorney towards his client. The rule of law undoubtedly is, that an attorney who is, retained generaUy to conduct a legal proceeding, enters into an entire contract to conduct the proceeding to its termination Tenney v. Berger, 93 N. Y., 524.

This was the character of contract the plaintiff entered' into with the defendant, and he performed it by bringing-the litigation to a successful termination. The service contracted for was entire, and has been fully executed. It involved a series of acts tending to bring about the final result, but it does not follow that the defendant is entitled, as of right, to a separate estimate of value on each of the several acts performed to accomplish the one object.

“It is not necessary,” said Robertson, Ch. J., in Johnson v. Mallory (2 Robt., 683), “in an action for having completed a piece of work by numerous successive acts of' service, all contributing to such completion, to set out each service so contributing and its character. There is scarcely an article made or work accomplished that has not been so, by means of a series of efforts. The painting of a picture, building a machine, or trying a cause, are illustrations of such a course of action. Every blow of an artisan’s hammer is a separate labor, yet the aggregate of a day’s work is charged, because it is the usual mode of measuring such services consisting of a great many particulars.”

In Garfield v. Kirk (65 Barb., 464), it was held, that to entitle an attorney to recover for professional services rendered to his client, he is not required to swear to each notice drawn and served, and how much it is worth; that it is enough for him to prove in general terms, the proceedings in a cause, the time occupied in the performance of any part of the services by which their value was enhanced, and the value of the whole, or in detail, as he-may elect.

In Betts v. Betts (4 Abb. N. C., 324), attorneys in their bills, charged aggregate sums for aggregate work, without dividing charges into items, and it was held to be a proper form of bill in cases involving great labor.

The plaintiff has given each successive act o'f the service, with the time of rendition, and the aggregate value of the whole. These successive acts being steps in the performance of one entire contract, the bill furnished is complete, and the defendant cannot, as of right, obtain a further bill. Johnson v. Mallory, snpra; Bangs v. Ocean National Bank, 53 How. Pr., 51.

The professional standing, eminence, experience and ability of the person who renders services, the manner of their performance, the magnitude and difficulties of the case, and the success of the undertaking, are all considerations which are to be kept in view in fixing the value of professional services at the termination of the litigation. It may be difficult to govern one’s self by this standard in estimating separately a series of acts leading to the grand consummation of the whole, and it is not surprising, therefore, that the plaintiff declined to split his charge into fragmentary items, with separate valuations attached to each.

We find no error which requires a reversal of the order, which will be affirmed, with costs.

Browne, J., concurs.


text:
      John F. Hawley, Resp’t, v. Patrick Brennan, App’lt.

      (City Court of New York, General Term,

      Filed April, 1887.)

    CrUABDIAN FOB LUNATIC DEFENDANT OF FULL A6E.
    The court may appoint a guardian to appear and defend for a lunatic-defendant, although of full age. Legal liabilities may be enforced against, lunatics.

      Appeal from order made at special term appointing a guardian for the defendant.

      Hyland & Zabriskie, for app’lt; Chas. De Hart Brower, for resp’t.
   McAdam, C. J.

The court below, on the application of the plaintiff, appointed a guardian for the defendant, to ap pear and defend the action for him. The defendant is non compos mentis, but of full age; not an idiot from nativity, has not been judicially declared insane in proceedings m stituted for that purpose, and no committee of his person or estate has as vet been appointed. The question presented is whether the court below has power to make such an order. We do not find any express provision of the Code expressly applicable to such a case, but we do find authori ties which assert the existence of the power and approve of its exercise. The court has jurisdiction of the subject-matter of the action, and acquired jurisdiction over the person of the defendant by the personal -service of process upon him. Prentiss v. Cornell, 31 Hun, 167; Robertson v. Lain, 19 Wend., 649; Bayard v. Scanlon, 1 City Ct. R., 487.

The insanity of the defendant does not prevent this jurisdiction from attaching, for lunatics may be sued precisely as though they were sane. Legal liabilities may be enforced against lunatics, whether the mental incapacity has been judicially declared or not. Sanford v. Sanford, 62 N. Y., 553; Brown v. Nichols, 9 Abb. N. S., 1; Prentiss v. Cornell, 31 Hun, 167; Clarke v. Dunham, 4 Den., 262.

The following cases sustain the practice followed at special term. They seem to hold that the proper course is to have a guardian appointed, and that if the lunatic’s friends do not move, the plaintiff may. Wilson v. Grace, 14 Vesey Jr., 172; Heller v. Heller, 6 How., 194; 1 Dan. Ch., 177; Thelford on Lunacy, 425; 1 Barb. Ch., 86; Faulkner v. M'Clure, 18 Johns., 133.

The object of the appointment seems to be that no injustice may be done to the incapacitated defendant, and that his rights and interests may be guarded and protected. No harm can come from this. We have concluded, therefore, to affirm the order appealed from, but without costs.

Browne, J., concurs.


author: McAdam, C J

text:
    Susan R. Brooks, Adm’r, etc., Resp’t, v. George B. Cannon, impleaded, etc., Appl’t.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Set-off against administbatob—Equitable set-off.
    Where the demand held by the intestate and that held by the defendant both mature after tlj.e intestate's death, one is a good set-off against the other. Where the estate is insolvent, a set-off not allowable at law may be allowed on equitable principles.

      The plaintiff sued the defendant Cannon as the endorser of a promissory note made by one Meyer for $400. The note is dated September 4, 1883, and fell due December 7, 1883 On September 9, 1883, Edward C. Brooks, the holder of the note died, and the plaintiff qualified as his administratrix, October 6, 1883. The defendant pleads by way of set off or counter -claim, two notes made by the intestate, both dated July 24, 1883, each for $250, one falling due September 27, 1883, and the other falling due October 27, 1883 Upon the trial the above facts appeared. The defendant also ppoved that the intestate’s estate was insolvent, and that the maker and first endorser on the note sued upon by the plaintiff were insolvent, leaving the defendant remediless, unless his set-off or counter claim is allowed. The trial judge disallowed the alleged set-off or counter-claim, and directed judgment in favor of the plaintiff, for the whole amount claimed, from which judgment the defendant appeals

      W H Shepard, for app’lt; J. P. Schmidt, for resp’t.
   McAdam, C J

The intestate died September 9, 1883, so that neither the claim sued upon, nor the claims sought to be set-off were due at that time. The defendant’s claim matured first, and when the plaintiff acquired a present right of action on the note, it was subject to the right of set off or counter-claim already vested in the defendant. In this respect, the present contention is unlike Jordan v. National Shoe and Leather Bank (74 N. Y., 467), where the cause of action existed at the intestate’s death, and the set-off sought to be established matured afterwards, and the case of Patterson v. Patterson (59 N. Y., 574), where the cause of action matured after the testator’s death, and the set-off sought to be established existed before his death. In those cases, for the reasons stated, the set-off was not allowed In the present instance, both demands matured after the death of the intestate, and may be regarded for the purpose of set-off, as if they had both matured before his death, for by every analogy of reason ing the principle applicable is the same. Equity requires that cross claims be set-off against each other, and there are reasons in this case why that equitable rule should be enforced. The prior parties on the note in suit are insolvent, and the intestate’s estate is insolvent, so that if the defendant is compelled to pay he is remediless, and the rule is settled that even in a case not within the statute of set-off, if from the nature of the claim, or the situation of the parties, justice cannot otherwise be done, set-off will be allowed. Lindsay v. Jackson (2 Paige, 581); Smith v. Felton (43 N Y., 419); Coffin v. McLean (80 id., 564); Bathgate v. Haskin (59 id., 537); Jordan v. Shoe and Leather Bank (74 id., 475). Littlefield v. Albany County Bank (97 id., 581), and by section 507 of the Code, a defendant even in a common law action may plead an equitable defense, and is entitled to such equitable relief as the nature of the defense requires. On either or both of the two grounds stated, the set-off or counter-claim pleaded herein should have been allowed. While this court has no jurisdiction of an action, against an executor or administrator as such, it has jurisdiction of actions brought by them, and may in such actions allow all proper set-offs or counter-claims. Justices of the peace possess this power under the Revised Statutes (art. 4, chap. II, title 4, part 3 of the R. S.), and this court has it to the same extent as if the action had been brought in the supreme court (Code, § 3,174). It follows that the-judgment appealed from must be reversed and a new trial ordered, with costs to the appellant, to abide the event. Hyatt, J., concurs.


text:
    John Wasilewski, Resp’t, v. Louis Wendell, App’lt.

      (City Court of New York, General Term,

      Filed April 22, 1887.)

    1. Contract—Agreement to advertise—Implied extension of the; ORIGINAL AGREEMENT.
    If the publisher continues to insert the advertisement after the time, he-cannot recover, unless the original agreement has been extended, or a new one made. The fact that the paper is taken by the person for whose benefit it is inserted, cannot be construed into a promise to pay, even after its-publication is brought to his knowledge. Following Lake v Patterson, 5-Hun, 558.
    2. Verdict contrary to law—Motion to set aside.
    If the verdict is contrary to law, the party aggrieved is entitled to nave-it set aside on a motion for a new trial on the minutes, although he has-taken no exceptions.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

      Gardiner & Tunison, for def’t and app’lt; August P.. Wagener, for pl’ff and resp’t.
   Hyatt, J.

This action was brought to recover the sum of sixty dollars upon an alleged contract to pay for certain advertising.

While the jury were deliberating they sent to the judge, in writing, the following question: ‘'If the plaintiff’s paper-was left at the defendants’s place of business, with the-advertisement in it, are we charged to find for plaintiff % ” to which he replied, also in writing, as follows:

" If the defendant had knowledge that the advertisement, was contained in the newspaper, and made no objection to-it, but continued to allow such publication to be continued.’'

This instruction, while incomplete in phraseology, meant yes.

If the charge of the court was correct, the verdict was certainly contrary to the evidence.

The charge of the learned judge, in reply to the question put by the jury, made it incumbent upon them, in order to. render a verdict for the plaintiff, to find as matter of fact that “the defendant had knowledge that the advertisement was contained in the newspaper.” In order to enable them to find that fact, it was necessary that there should be some evidence in the case that the defendant had such knowledge.

There is no such evidence; all the evidence tends to show that the defendant had no knowledge whatever upon the subject.

But the court erred in its charge to the jury; it was contrary to law The jury were out and evidently, from their question, were unable to find a contract between the parties; then they asked the court for the above instruction. The instruction given was error.

The law of contract or of publications is correctly set forth in the case of Dake v. Patterson (5 Hun, 558), to wit:

- “If the publisher continued to insert the advertisement after the time, he cannot recover, unless the original agreement has been extended or a new one made.”

“ The fact that the paper is taken by the person for whose benefit it is inserted, cannot be construed into a promise to pay, even after its publication is brought to his knowledge.”

In this case the verdict is contrary to law. A motion was made for a new trial on such ground and entertained by the judge; having entertained it and denied it, it is now properly before the general term for review, whether or not an exception was taken to the ruling of the court. The whole case being before us, we find the verdict contrary to law. Spatz v. Lyons, 55 Barb., 476.

If the verdict is contrary to law, the party aggrieved is entitled to have it set aside on a motion for a new trial on the minutes, although he has taken no exceptions. Tate v. McCormick, 23 Hun, 218.

A motion was made to set aside the verdict of the jury upon the ground that, and because the verdict of the jury was contrary to the evidence and contrary to law, and because the court erred in its charge to the jury and misdirected the law

This motion was denied; such denial was error; it follows, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

McAdam, Oh. J., concurs.


author: McAdam, Oh. J

text:
    Charles Parker, App’lt. v. Philip Tillinghast, Resp’t.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Parent and child—Liability of parent for clothing furnished minor, SON WHILE ATTENDING SCHOOL IN A FOREIGN STATE.
    If the parent sends his son to attend school in a foreign state, and neglects to furnish him with clothing suited to the climate, the growth of the son, and according to the parent’s means, the son may obtain the clothing-on the parent’s credit. Whether the son was justified in obtaining credit on the parent’s account is generally a question of fact for the jury.
    The defendant, a resident of this city, sent his son, then, sixteen years of age, to attend school at Exeter, New Plampshire. While there, the son, in November, 1885, obtained from the plaintiff winter clothing, including an overcoat.
    The clothing was reasonably worth eighty dollars. The-plaintiff testified, without objection, that at the time of ordering' the clothing it was cold weather, and the defendant’s son said “he had nothing but a very thin overcoat, and that he had outgrown his other clothes.” The defendant testified that he could not state what clothes his son-had when he left home that fall, but in general terms said that he had furnished the son what clothing he thought-was proper and necessary for him. The trial judge directed a verdict in favor of the defendant, and from the judgment-entered thereon the plaintiff appeals.

      Robert L. Stanton, for app’lt; Logan & Mellis, for resp’t.
   McAdam, Oh. J

We must assume that the clothing-furnished by the plaintiff was reasonable and proper, according to the defendant’s condition m life, or otherwise-the judgment must be reversed for error of the trial judge in refusing to permit the plaintiff to prove the defendant’s financial condition, a fact the plaintiff proposed to establish while the defendant was on the witness stand The only question to be considered, therefore, is the defendant’s-liability, which springs from the relation of the parent to-his offspring, and is founded on a natural duty to furnish necessaries for his infant children according to his means. If the child be living with the parent, neglect will not be presumed, and “no man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or of whom; all that-must be left-to the discretion of the father or mother.” Bainbridge v. Pickering, 2 W. Bl., 1325; Van Valkinburgh v. Watson, 13 Johns., 480. The defendant’s son was living apart from the. defendant by the latter’s act, and we are to consider how far this affects the defendant, for what is actually necessary for an infant will depend upon his situation at-the time. In Baker v. Keen (2 Stark., 440) the father had placed a son at a military college, and paid his expenses there, and this was considered sufficient to warrant the presumption of authority from the father to order regimentals and other articles for his equipment. The son in the present case was placed in the school at Exeter.

He was expected to pursue a course of studies there, and if, as the son said, he had nothing but a thin overcoat, and had outgrown his other clothing, the father ought to have supplied what the son needed, as the son could not be expected, under the circumstances, to supply them at his own expense. The cold climate of New Hampshire, where the father located his son, entitled him to clothing-suitable to the climate, and his gradual growth called for clothing suitable to his increased size, so as to permit him to make a presentable appearance at his school, and if the father failed to supply these necessaries, the son had the right to procure them on the father’s credit. This is founded on the rule, that if the parent neglects his duty, any other person who supplies the necessaries, is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent. The evidence was sufficient to entitle the plaintiff to go to the jury on the question involved. 2 Kent’s Com. (13th ed.), 193; Baker v. Keen, supra; Mahoney v. Evans, 51 Stat., 83; Davis v. Caldwell, 12 Cush., 513. When the standard of paternal duty is a shifting one, depending upon circumstances, and on inferences about which intelligent persons may honestly differ, it is a question which should be determined by the jury.

We think the trial judge erred in assuming, as matter of law, that on the facts stated and the inferences to be drawn from them, that no liability could possibly attach.

The defendant’s testimony was unsatisfactory as to what clothing he had furnished his son, and was silent as to whether or not he furnished a winter overcoat, which the nature of the climate and time of the year would indicate the son needed. He was, also, silent as to what pecuniary provision (if any), he made for his son while at Exeter. These things may be more satisfactorily explained on the new trial.

Upon the record as it stands, we think the judgment ought to be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hyatt and Ehrlich, JJ., concur.


author: MoAdam, C. J.

text:
    William Mass et al., Resp’ts, v. Frederick L. Ellis, App’lt.

      (City Court of New York, General Term,

      Filed April 1887.)

    Practice on appeal erom judgment entered on verdict — Code Crv. Pro., §§ 767, 1300.
    Where the judgment has been rendered upon the verdict of a jury, the statute authorizes an appeal from the judgment upon questions of law only, and the defeated party is precluded from reviewing the facts unless he has made a motion for a new trial The order denying the application for a new trial must be in writing, and entered by the clerk, before an appeal will lie from it. This pre-requisite is not formal, hut jurisdictional.
    Appeal from judgment entered on the verdict of a jury in favor of the plaintiffs.

      Albert L. Cohn, for app’lt; Smith & White, for resp’ts.
   MoAdam, C. J.

Where the judgment has been rendered upon the verdict of a jury, the statute authorizes an appeal from the judgment upon questions of law only (Code, § 1346, subd. 2), and the defeated party is precluded from obtaining a review upon the facts, unless he has laid the foundation for such review by a motion for a new trial. See cases collated in Baylies on New Trials, 45, 46. The party seeking to review the finding of a jury must move on the minutes for a new trial, pursuant to section 999 of the Code, or apply to the court at special term on a case made pursuant to section 1002. of that act. Upon an appeal from the judgment, and from the order denying the motion for a new trial, the whole case, upon the law as well as the facts, will be before the general term for review. The printed case shows that on the conclusion of the trial, after the rendition of the verdict, the defendant moved for a new trial on the ground mentioned in section 999 of the Code. The case then recites these facts: “Motion denied; defendant’s counsel excepted.”

The appeal is from the judgment and from the (so called) order denying a new trial, but the difficulty is that no order denying the application for a new trial was ever made.

The order must be in writing (Code, § 767), and no appeal can be taken until after the entry of the order by the clerk. Section 1300, Matter of N. Y. C. R. R. Co., 60 N. Y., 115. The objection that no order has been made and entered is not one of form but of substance. It is a pre-requisite that goes to the jurisdiction or power of the court to review the facts. The motion for a new trial is no part of the trial. It cannot be made until after the trial has been completed. .Such being the law, we cannot review the facts upon this .appeal, which must be regarded as one from the judgment only, to be determined solely upon the exceptions taken at the trial. Third Avenue R. R. Co. v. Ebling, 100 N Y., 98 But two exceptions were taken in the case, one to the exclusion of evidence, and the other to the refusal of the trial judge to charge a specific request proposed by the defendant’s counsel. As both are without merit, they require no discussion. The case was fairly tried, no motion to dismiss was made, no insufficiency of proof pointed out, and no exception was taken to the manner in which the issues were submitted to the jury. The jury have disposed of all there is to this case, and the judgment entered on their verdict must be affirmed with costs.

Ehrlich, J., concurs.


author: McAdam, Oh. J.

text:
    Lewis W. Cass, Resp’t, v. Frank N. Pride, App’lt.

      (City Court of New York, General Term,

      Filed April, 1887.)

    'Compromise verdict.
    Where, in an action for damages for breach of contract made on exchanging horses, the jury found a verdict in favor of the plaintfE for $118, the defendant appealed, claiming that the verdict was the result of a compromise by the jury in order to reach an agreement. Held, that as there was nothing in the record proving how the jury arrived at their verdict, it could not be inferred how they reached the result. That as the verdict was justified by the evidence, the fact that the jury did not award larger damages was a circumstance of which the defendant could not complain, not being prejudiced by it.
    Appeal by defendant from judgment entered on the "verdict, of a jury in favor of the plaintiff.

      John C. Shaw, for app’lt; FranMin Bein, for resp’t.
   McAdam, Oh. J.

The plaintiff sued to recover damages for the breach of a contract made on exchanging horses. The plaintiff gave a pair of bay horses valued at §500 for a' gray mare belonging to the defendant, put in the trade at $600, and the difference of $100 was paid by the plaintiff in cash. The plaintiff claimed that the defendant misrepresented the mare as sound, when it was lame and consequently unsound. The jury awarded the plaintiff §118, being made up in this way, §100 damages and $18.00 interest thereon.

The defendant insists that the verdict was the result of a compromise by the jury in order to arrive at an agreement, and cites cases to show that such verdicts should not be sustained. There is nothing in the record which proves how the jury arrived at their verdict, and it is very difficult at times to infer how they reach conclusions, particu.larly in horse cases. The evidence certainly justifies a "verdict for $118, and the fact „tihat the jury did not award more is a circumstance of which .the defendant cannot-complain, as he is not prejudiced by it.

We find no error which requires a new trial, and the judgment must, therefore, be affirmed, with costs.

Hyatt and Ehrlich, JJ., concur.


text:
    William L. Pomeroy, Respt, v. William L. Tyler, App’lt.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Landlord and tenant—Eviction by presence op vermin, etc.
    A tenant who hires premises takes them for better or worse. The landlord, in the absence of fraud, or express condition, is not responsible for the presence of rats, mice, bugs or roaches about his premises, and the. fact that the premises are infested by them, constitutes no defense to an. action for the rent.
    The action is on a written lease of a' suit of rooms bathe apartment house of the plaintiff, known as the “Four Seasons.” The hiring was for one year from November 1, 1882, and the recovery sought is the rent from May 1,1883, till October 1,1883. The defendant abandoned the premises-April 30, 1883, having paid the rent during the period of his occupation.
    The answer admits the execution of the lease, and pleads, in defense (1) constructive eviction and (2) surrender.
    The trial judge directed a verdict in favor of the plaintiff, and the defendant appeals.

      George H. Starr, for app’lt; Thomas E. Stewart, for resp’t.
   McAdam, Oh. J.

We need not seriously consider the exceptions taken in regard to the alleged parol agreement made contemporaneously with the lease, as no such independent agreement is pleaded by the defendant. The surrender claimed to have been accomplished by leaving the keys with the janitor of the building is ineffectual, because he had no implied authority to accept a surrender of the defendant’s lease, and no express authority was proved.

The regulations endorsed on the lease define the janitor’s duties; he was to keep the halls clean, superintend the building, remove ashes and send coal and wood up to the tenants. The power to release tenants from their contract obligations can neither be implied from the janitor’s position nor from this enumeration of his menial duties.

The keys were never tendered to the landlord or his agent who let the rooms, nor was either consulted about accepting a surrender. No agreement to accept can be implied from what occurred. The exceptions during the-trial are formidable in number, but on careful examination they will be found to be shadowy and without real merit. See Todd v. Union Dime Sav. Inst., Daily Register, May 10, 1887.

The real defense is that the defendant quit the premises because the rooms occupied by him were overrun with vermin, to wit: bedbugs, cockroaches, croton water bugs and red ants, making it inconvenient to inhabit the premises and rendering th,em untenantable. These annoyances, it is claimed, constitute a constructive eviction of the tenant, but there is no warrant in law for the claim. The maxim caveat emptor applies to the leasing as well as to the transfer of real or personal property, and the lessee or purchaser takes the risk of its quality and condition, unless he protects himself on the subject by express agreement. Cleves v. Willoughby, 7 Hill, 83; Meeks v. Bowerman, 1 Daly, 100; Mayor v. Buller, 1 Hill., 491; Schermerhorn v. Gouge, 13 Abb. Pr., 315; Edwards v. N. Y. C. R. R. Co., 98 N. Y., 245. In other words, he takes the premises for better or for worse. Bloomer v. Merrill, 1 Daly, 496; Mumford v. Brown, 6 Cow., 476.

This rule is particularly applicable to the present case because the defendant had- occupied the rooms before he executed the lease sued upon, and is chargeable with a knowledge of their condition. The landlord, in the absence of fraud or express condition, is not responsible for the presence of rats, mice, bugs or roaches about his premises.

If a tenant knowingly or ignorantly takes such a house, he must either suffer the inconvenience incident to the hiring or must rid the premises of his pests in such manner as may prove most effective. He may, if he desires,invoke the assistance of the board of health, but this dernier resort would have been unprofitable, for the tenant in the present case, agreed in his lease to obey all lawful orders of the health board, so that the expense charged by that department would have collectible from him. The tenant choose to move from the premises, he had the right to exercise this privilege, but his abandonment does not reheve him from his obligation to perform the covenants to pay contained in the lease under which he held the premises.

The legislature has passed a statute relieving tenants from their common law obligations, where the demised premises have been destroyed by fire, tempest or other sudden and unexpected event. Laws 1860, chap. 345; Suydam v. Jackson, 54 N. Y., 453), but the legislative sense of relief to tenants has not as yet reached the case of rats, mice, bugs, roaches or other vermin, and all questions as to them must be decided according to the wisdom of the common law. The inconvenience is one to which all more or less subject at times; but which, with ordinary skill and attention, may be abated by the tenant.

The defendant ought to have dealt with these pests, as the common lot of humanity have to deal with them, and that is by the most improved methods of extermination. As all events, their presence constituted no defense. Westlake v. De Graw, 25 Wend., 672.

In Smith v. Marrable (11 M. & W., 5), it was held, that when a ready furnished house is let for a temporary residence at a watering place, there is an implied condition that it is reasonably fit for habitation, and that the tenant may quit without notice upon its appearing to be infested with bugs. The fact that the hiring was for temporary purposes is the sole justification for this decision.

Its accuracy has been doubted (Smith & Soden’s L. & T., by Carl, 187), and the doctrine limited to a furnished house, let subject to an express condition that it was fit for occupation. Id., 138.

There was no defense to the action, and the judgment entered on the verdict directed by the trial judge must be affirmed, with costs.

Hyatt, J., concurs.


author: Ehrlich, J. McAdam, 0. J., concurring.

text:
    Louis Wolfe, App’lt, v. John P. Schmenger, Resp’t.

      (City Court of New York , General Term,

      Filed April, 1887.)

    Costs—Offeb to allow judgment—Effect of. amendment of com> plaint.
    The effect of an offer to allow judgment must be determined by the state of the pleadings at the time it was made. If the complaint be amended by dropping some of the causes of action and reducing the recovery sought, it ceases to be binding, on the defendant, and hence is not conclusive against the plaintiff. In other words, it became for all purposes nugatory.
    Appeal from order made at special term, reversing taxation of costs by the clerk.

      A. L. Sanger, for app’lt; T. C. Ennever, for resp’t.
   Ehrlich, J.

While not prepared to hold that the service of amended pleadings, pending an offer of judgment, must ipso facto and in all cases annul the offer of judgment, yet in the case at bar, the order should be reversed and the clerk’s taxation affirmed for the reason that the parties cannot be fairly presumed, to have intended or understood, that the offer of judgment upon certain specific claims, should hold good and apply to others, widely different, set forth in the amended complaint.

The order, therefore, should be reversed with the usual costs and disbursements, and the clerk’s taxation affirmed.

McAdam, 0. J., concurring.

The right to serve an offer to allow judgment, is derived from the statute. The power to amend a pleading, is derivéd from the same source. The exercise of the two powers is to be construed so that the legitimate exercise of one, may not conflict with the other. In other words, that the dif ferent rights conferred may be exercised and construed according to legal principles to further the legitimate intent and purpose of the parties. If the amendment made by the plaintiff had been one of form only, and the cause of action and recovery sought had remained the same, the offer served would have continued binding upon the parties, notwithstanding the formal amendment. Kils v. Seeber, 10 How. Pr., 270.

But, if as in this case, the amendment goes to the extent of dropping two entire causes of action, and reducing the recovery to the amount claimed in the remaining count, it is clear that the defendant was no longer holden to his offer, and as he was discharged from it, the plaintiff’s right to enforce it ceased. The offer, for legal purposes, became nugatory. It was intended to apply to the three causes of action to which it was addressed, and not to the single cause of action substituted for the three. 36 N. Y., 75. The amended complaint superseded the original, and the new issues superseded the original issues, and the rule that the effect of an offer must be determined by the state of the pleadings at the time it was made becomes significantly applicable. Tompkins v. Ives, 30 How. Pr., 13; S. C., 3 Abb. Pr. [N. S.], 267. So interpreted, there is no doubt or uncertainty as to its purposes, intent or meaning. It was, when made, an offer to allow, judgment for $130 on three existing causes of action. Its purpose was never changed by any act of the defendant. The plaintiff could not and did not change its meaning or effect by withdrawing two of the causes of action to which it was addressed and litigating for the one that remained. The mere silence of the defendant did not change the purpose or meaning of the offer, and it will not bear the interpretation his present interest and purpose require it to receive. It speaks as of the time when interposed, and was addressed to the three counts of the then existing complaint. There was no offer made as to the single cause of action finally litigated, and the plaintiff became entitled to costs on his recovery thereon of seventy-seven dollars. If the plaintiff had accepted the offer when made, he would have concluded himself on the three independent causes of action, two of which have since been made the subject of an independent suit, and if these two causes of action have merit, the plaintiff will ultimately have recoveries more favorable than the offer. However, the new action terminates the order appealed from must be reversed on the rule of inter pretation before mentioned, with costs.

Hyatt, J., also concurred.