text:
    Annie Ives, Pl’ff, v. James Ives, Def’t.

      (Supreme Court, St. Lawrence Special Term,

      Filed February, 1894.)

    1. Divobcb—Sup. Ot. bulb 73.
    Supreme court rule 73 applies only tocases of default in actions for-divorce.
    . 2. Same—Rebebes.
    In a contested action for divorce, the court may designate a referee from' the names suggested by counsel.
    3. Same—Waives.
    In the absence of collusion or fraud, plaintiff waives an irregularity in-the mode of selecting the referee in such action by accepting the benefit of an order postponing the cause over the term by reason of such reference.
    Motion to set aside order of reference in action for absolute divorce.

      John Gonboy, for pl’ff; Daniel Magone and George Morton, for def’t.
   Russell, J.

The motion in this case is to set aside the order of reference to John Gr. McIntyre, on the ground that the referee was selected on consent of the attorneys contrary to law and in violation of the rules of the court, and for such further or different rule or order as the court may deem proper. The notice of motion is subscribed, not by the attorney for the plaintiff but by the counsel who appears on the hearing as counsel for the plaintiff, and is fortified by an affidavit of the attorney of record and the plaintiff. The purpose and effect of the motion is to accomplish the result of the delay in the trial of the action until the May circuit in St. Lawrence county, a privilege which was denied by the court at the January circuit upon hearing both sides. It is not claimed that any injustice was done by the order of reference, or that the referee is not in all respects perfectly competent and reliable and entirely indifferent between the parties, but it is claimed that, by consenting to an order of reference in choosing a referee who was acceptable to the other side and the court, the plaintiff could prevent the trial of the action at the January circuit, and thus, by repudiating the action then taken, could obtain a further delay of three months till the May circuit.

This motion was originally noticed the day before the trial was to come off before the referee, to be heard by a- justice of this court in another judicial district adjoining the fourth judicial district, but that justice sent the hearing of the motion to the first special term held by the justice .who presided at the circuit held in St. Lawrence county, in January, at which the motion to continue the case was denied.

The action is brought to obtain a divorce, on the ground that a-common-law marriage was contracted between the plaintiff and the defendant, and the adultery charged upon the defendant consists in the living with the lady whom he openly married on the 10th day of January, 1893, some nine months' before this action was commenced, and such marriage and living is conceded in the answer. The only issue, therefore, to be tried in this action is upon the allegation of the marriage with the plaintiff, contracted by secret common-law contract years before the marriage to Miss Morton. There is, therefore, no possible element of any collusive or fraudulent effort to undo the bonds of the marriage, irksome to both parties, between the plaintiff and the defendant, but both by the pleadings, the statements of counsel and a sharp controversy which has arisen in this action, it is plainly evident that the issue here is whether the plaintiff is an injured woman, or the action is based upon an attempt to blackmail the defendant upon a false claim, by means of a pending harassing litigation, disturbing the defendant and the woman whom he married a year ago, and with whom he lives in the relation of husband and wife.

The action was at issue October 11, 1893, nearly three months before the St. Lawrence circuit, was noticed by the defendant for trial and put upon the calendar. On the first day of the circuit the plaintiff appeared by the counsel who makes this motion, and submitted affidavits of her illness and inability to attend court. The defendant’s counsel challenged the assertion, and time was given to present opposing affidavits. On the liearing of the motion on the eleventh of January, the justice presiding at the circuit was satisfied that any indisposition on the part of the plaintiff was of so light a character that she might at that time, or soon thereafter, be present, and denied the motion, but, in order to give her ample opportunity to be present, announced that the court would, for the trial of this case, continue into the following week, and the case might be set down for the seventeenth of January, for trial by jury, or, if plaintiff preferred, it might go to special term to be tried, or to a reference.

The case was one which evidently should be tried as speedily as possible. If the plaintiff occupied the position she claimed, her rights as the wife of the defendant would not be too soon established. If she did not, the defendant was entitled to have a speedy determination of the pending charge against him, which meant that he had deluded an innocent woman into marrying him, supposing him to be single, and had been guilty of the crime of bigamy, and the court must also take in View the rights of the helpless woman who knew nothing of a secret marriage by common-law contract, and whose reputation and peace of mind were at stake every moment until the determination of the action.

•After the announcement of the decision on the motion to com t.inue, counsel retired, and in the course of the afternoon, came into court; the counsel for the plaintiff, who had appeared that day, and who is the attorney of record, informed the court that he had elected to take a reference to hear and determine, and soon thereafter an order was presented to the court bearing the name of the present referee, who was entirely acceptable to the court, and one whom the court would have designated without any hesitation. The court thereupon directed the order to be entered, and, as appears from the papers, the case was properly noticed for trial before the referee, and no evidence of discontent with the arrangement was presented to the other side until fifteen days later,3 and on the eve of the trial before the referee.

From the affidavit of the plaintiff on this motion it appears that she knew of the reference on the day following the entry of the order, the 12th of January, 1894.' The circuit court in St. Lawrence county was still in session, and an application could then have been made to still try the case by jury on the 17th, five days later, but no objection was made to the reference that came to the notice of the other side until the 26th of January, when the court had adjourned.

In directing the order of reference designating Mr. McIntyre to be referee, the court was not unmindful of rule 73, nor of the construction which has been placed upon it in this judicial department. That rule follows rule 87, in force at the time of the adoption of the Code of Civil Procedure, which provides that the “court' shall in no case order the reference to a referee nominated by either party.” In considering the rule, the general term of the supreme court in the third judicial department held that a reference by consent in a contested case was, if objectionable, merely an irregularity which could be waived by the attorneys. Fullmer. v. Fullmer, 6 Wk. Dig. 42.

This ruling has not, so far as this court has had any knowledge, ever been questioned. It has been always a matter of some doubt whether, for the reasons which will be stated hereafter, rule73'of the present general rules of practice applies to a contested case in an action for divorce. The heading attached to the rule, as it appears in the authorized version of the general rules of practice, published by the reporter of the supreme court, says that it refers to a “reference on default in an action to obtain a divorce or separation—referee, who may be.” It is plain that the purpose of the rule is beneficial in a case where no answer has been interposed genuinely contesting the allegation of fault upon, which is based the request for a dissolution of the marriage tie. It is very proper that vthe court should select, without suggestion, a referee who will not allow the contract of marriage to be set aside unless for legal cause, upon sufficient évidence, and who will conduct the proceedings so as to prevent collusive divorce.

The view that this rule refers to defaults is confirmed by the adoption of the new section of the Code of Civil Procedure, which provides that a reference in divorce shall not be made of course upon consent of parties, and, where the parties do consent, the court may grant or refuse the reference, and where the reference is granted, the court must designate the referee. This section of the Code of Civil Procedure is not the adoption of rule 73, but in addition to it, and means to refer to a class of cases not provided for by that rule. It has been customary, outside of New York and Brooklyn, for orders to be entered upon consent or stipulation of the parties without presentation to the court, and even orders of reference have been made in that way. The new section, referring to contested cases, prevents the entry of such orders by consent, compels application to the court, gives the court discretion to refuse, and allows the court to designate the referee. It nowhere states that in a contested case the court cannot designate a referee from the names suggested by counsel.

The reason of the rule, in cases of default, and of the statute, in cases of contest, is apparent. It is for public policy that marriages shall not lightly be dissolved, and it is certainly a rule of public policy that they shall never be dissolved by collusive consent of parties. That is the object to be accomplished, and the sole reason of the rule. If the case is one in which there can be' no possible danger of this kind, there is no reason for the application of any such rule or statute. Gessante ratione legis cessat et ipsa lex.

Neither the rules of the court nor the statute meant to take away from or mar the j urisdiction of the court. It is for the court to always judge when the application of the rule is pertinent, and that discretion of the court cannot be impugned by a motion, unless it appears that there has been an abuse of discretion.

Eules 61, in regard to foreclosure cases, and 66, as to partition cases, have similar provisions. Can the party who asks for the appointment of a particular person as referee, after proceedings have been taken upon the reference, have the privilege of vacating the order of reference as irregular under these rules ? EuleSS provides that contested motions shall not be noticed or brought to a hearing at a special term held with the circuit except by a general rule of the justices of the district. In case no such rule was made by the justices, would an order be set aside on application of the parties who made the motion which the court permitted to be heard, after a decision thereof ?

It is the reductio ad absurdum that a party should have a standing in court to set aside an order made at his request on the sole ground that the referee named in the order was the very one who was the most acceptable to himself.

This leads to the additional consideration of the estoppel resting upon the plaintiff. Assuming, for the sake of argument, that the attorney and counsel for the plaintiff in this action have made this motion because they are shocked at having apparently transgressed a rule of court, or a provision of the Code of Civil Procedure, and that, actuated by a sense of their duty as practitioners, they have called the attention of the court, by the motion, to this apparent transgression, still, we must assume they are guided by the directions of the plaintiff. We might also assume that the notice of motion, by its general clause, in addition to its specific request, was meant to cover the substitution of another referee to be selected by the court, who in his personnel might be as distasteful as possible to the counsel for the plaintiff, yet this assumption must be abandoned from the attitude taken by the counsel for the plaintiff on the argument of this motion, presumably from instructions by client. He argued orally that the order referring the case to Mr. McIntyre should be set aside on general motives of public policy, illustrated by the rule and the Code; and then, citing Preston v. Morrow, 66 N. Y. 452, argued that no other referee could be substituted, presumably from motives of private policy of the plaintiff. So it appears that the final result of the present proceedings, by a happy coincidence, would, if the plaintiff’s claim is correct, result in precisely the same end as that asked for at the circuit, viz., a delay in the trial of the case until the coming May.

The plaintiff is estopped from effecting such result. We have seen that by the decision of our general term she'could waive the alleged irregularity. She certainly does so by accepting the benefit of the order postponing the cause over the then pending term of the circuit court. A party can even waive a constitutional right. In re Cooper, 93 N. Y. 507.

And even if a matter of public policy is involved, as in the case of the statute forbidding usury, a party may be estopped from establishing a defense by his own declarations that the security is untainted.

It would be a far more dangerous transgression of law to allow a party to promote an end desired by such means as those adopted than to refer an issue as to whether a common-law marriage has been accomplished to a referee to- determine who was entirely acceptable to both sides.

The motion is accordingly denied.


source: Caselaw Access Project

author: Russell, J;

license: Public Domain

text:
    Martha L. Sanford, Pl’ff, v. Amelia B. Goodell et al., Def’ts.

      (Supreme Court, St. Lawrence Special Term,

      Filed February, 1894.)

    1. Will—Construction—Suspension.
    A devise is void if the power of alienation may, in either of two contingencies or by any natural contingency, be suspended for more than two lives.
    2. Same—Whole scheme void.
    When the essential scheme of the testator is destroyed by the invalidity of a part, the whole consummation of the scheme falls to the ground.
    3. Estoppel—Election.
    When rights have been obtained, either of possession or of property itself, by force of a voluntary act, an inconsistent claim cannot afterwards be maintained under the doctrine of estoppel.
    Action for partition of lands.

      Charles A. Kellogg, for pl’fiE; Charles O. Tappan, K. L. Strong', and George B. Stacy, for def’ts.
   Russell, J;

This action for partition of lands presents some novel and difficult questions. The plaintiff is one of four sisters, all children of Joel Goodell, deceased. The plaintiff, claims the 'right to partition three-quarters of the lands left by the deceased, in hostility to the intent of his will, and yet claims a freehold estate in the remaining one-quarter by the terms of the will. To maintain this action for a partition, and also to retain the farm devised to herself for life, she has to successfully establish that the second clause, devising the other lands to her three sisters and Ernest Danforth, is void; that as to sueh lands there was intestacy, while the will was perfect in its devising effect to convey to her for life, and her heirs afterwards, the title to the farm upon which she lives.

The deceased owned at the time of his death personal property worth but little more than sufficient to pay his debts. He left a farm of about eighty acres on which the plaintiff and her husband resided. He also left, besides a small pasture lot, the farm called the home farm, on which had been erected a family mansion, more expensive, perhaps, than, was needed for the purposes of his life.

This home farm comprised about 280 acres, and the comparative values of the farm on which the plaintiff lived, and the home farm, with the pasture lot, were about as one to three, so that the plaintiff and her heirs under the will would take about one-quarter of his real estate under the scheme of the will.

No question arises as to the validity of the devise in the first item of the will to the plaintiff of the eighty- acre farm, except as that devise is affected by the failure of the remaining scheme of the will.

The second item in the will provides as follows: “All the rest residue and remainder of my real estate which I may own at the time of my death, excepting the starch factory lot (should I die siezed of the same), I give, devise and bequeath unto my children, Amelia B., Eliza M. and Mary E. Goodell, to have and enjoy the same as long as they or the survivor or survivors of them shall live, and, at the decease of the said Amelia B., Eliza M., and Mary E., the balance of such real estate not above devised shall be the property of Ernest Danforth, now making his home with C. A. Sanford, but in case of his death prior to the decease of all the three persons, daughters, mentioned in this provision, the survivor or survivors of them shall have full title of such real estate.”

The plaintiff was the only manied daughter of the four. The other three were upwards of forty years of age, and it was probably felt by the testator that they would not marry and leave descendants. The. boy, Ernest Danforth, was a pet of the testator. The testator evidently thought there was no need of devising the absolute fee to any of his children, and that, with the economical habits in which they had been brought up, the life use was sufficient for their support. He had so much property to devise and bequeath. He wanted his four daughters to enjoy, each of them, a fair share during their respective lives. He desired the property devised to Mrs. Sanford to go to her children, if she had any, and if not, to return to such of her sisters as were living or their heirs. He did not desire any part of the home farm, devised to the three unmarried daughters, to go to Mrs. Sanford. He wanted each share thereof, as it fell in by death, to pass to the survivors, and when all had departed, the remainder to go to the boy for whom he cared so much. If the shares of the three unmarried daughters were, respectively, unequal in value to the farm devised to the plaintiff, he sought to make up the deficiency by any possible remnant of his personal property after paying his debts.

The scheme of this will is transparent. Can it be effectuated by the courts, and if not, can any part of this scheme be preserved intact ?

The first question, therefore, which arises, is, was the second devise to the three daughters, and remainder to Ernest Danforth, valid in law ?

It is apparent that if the testator had fettered the shares devised respectively by the limitations of his will only to each life taking a share, so that when death came to either of them her share went untrammeled, by the binding force of the will, to another, a theory might be evolved under which the power of alienation would not be deemed to have been suspended, as to each share, for more than two lives in being. But such is not the case. When one dies the share passes, by force of the will, to the other two ; on the death of the second, her original share or moiety received from the first deceased sister goes to the third, and upon her death the three shares pass to the young man, Ernest Danforth. Only one contingency obviates this result, and that is, should Ernest Danforth die before the three sisters, they take absolutely. But the law is too well settled to require citation of authority that a devise is void if the power of alienation may in either of two contingencies, or by any natural contingency, be suspended for more than two lives.

• I am, therefore, of the opinion that the second item of the will does not contain a valid devise, and that the lands,, consisting of the home farm and the pasture lot, went into intestacy, and, therefore, became the property in fee simple of the plaintiff and her three sisters.

If the case stopped here the plaintiff, owning under the will the eighty-acre farm for life, might maintain partition as one of the four owners of the remaining lands.

But we must necessarily proceed to consider the second question ■ which arises. If the intent of the testator can be effected only as to one quarter of his property, and as to the remaining three quarters the will must be pronounced void, should the courts pick out a part which they say may be preserved and abandon the rest, or should they say that the whole scheme falls ?

The plaintiff’s counsel argues that the former of these alternatives must be adopted by the court. That the first item, devising to the plaintiff the eighty acre farm, is a separate and independent clause by itself in the will, and from the fact of its location in that instrument it is so separated that the courts have no right to consider it only as a part of a uniform scheme. He also argues that the courts have no right to go farther than to pick out the bad parts of a will ' leaving the force and effect of the remainder untouched as though there had been no item whatever such as is expressed in the second clause of the will, leaving that will to stand as to the property in ■question as though the devise was made to the plaintiff of the eighty-acre farm and no disposition whatever was undertaken by the testator as to the remaining lands.

Undoubtedly there are many cases which may be cited which hold that independent and unconnected clauses of a will may be sustained while others may be rejected. But the construction of a will is not like the adjudication of a lot of separate instruments conveying property to different persons, which are not tied together by a common motive and a rounded scheme. The object of the law is to give to the man who owns property the right to say who shall have it after his decease. To prevent fraud, uncertainty or confusion that law requires certain formalities to be observed in the execution of that right. The executed instrument is the consummation of those formalities. But, when all is done, the instrument itself is but the evidence of what the testator intended to do and tried to consummate. It is not necessary that he should reiterate in different clauses which are separately numbered, or mechanically parted from the others, that each clause is dependent upon the effect of the other clauses. When he undertakes to provide for the four children and the heirs and the remainderman whom he wishes to take, in view of the want of prospect of heirs of the three, a single purpose runs through the whole instrument, and the various devises flow from the same motive and in execution of the same general scheme. He, assumedly, makes his will in the faith that the expression of his intent will be effectuated in law, for otherwise he would not have embodied it in his will.

A part of that general scheme, and an important part, was that Mrs. Sanford, the plaintiff, should have the eighty-acre farm for life, her heirs the remainder, those heirs possibly being the three sisters, and that neither she nor any of her descendants should ever have any interest under the will in the home farm or pasture lot. If the plaintiff can claim a life interest in the eighty-acre farm, and a one-quarter fee of the remaining lands, such claim is in defiance of and hostility to the intent of the testator.

If the plaintiff shall receive as much in the home farm as either of her three sisters, and, in addition, she and her children obtain the fee of the eighty-acre farm, in which her three sisters can have no interest, then the whole scheme of the testator’s will is violated.

The authorities amply sustain the proposition that, when it is apparent that the essential scheme of the testator is destroyed by the invalidity of a part, the whole consummation of the scheme falls to the ground, as the courts, being unable to carry out the intent of the testator in disposing of his property from his ineffective attempt to exercise his right, leave the whole of his property to the operation of the law in its transmission to those who inherit. McSorley v. Wilson, 4 Sandf, Ch. 515, 519 ; Coster v. Lorillard, 14 Wend. 268; Hawley v. James, 16 id. 61; 5 Paige, 318; Van Beuren v. Dash, 30 N. Y. 426; Harris v. Clark, 7 id. 242.

This principle is not limited to the ease of a will creating a trust in which the beneficial devises fail on account of the invalidity of the trust. The rule applies wherever the general scheme of the testator is broken in so important and material parts, as to lead to the inference that the testator would not have left the remaining part untouched had he known of the invalidity of the other, The difficulty for courts in applying the rule is in the determination of the question of how far the general scheme is ipipaired-

In the case at bar I am entirely satisfied that the testator would not have knowingly given to the plaintiff and her heirs the fee of one farm and at the same time a quarter interest in the remaining lands, diminishing by so much the comparative standing of the other three children in equality as to their father’s property. I think that, following this conviction, the court should pronounce the whole will ineffectual so far as it devises realty, and even so far as it divides the personalty.

But a third question arises. Assuming that the testator is defeated in his general scheme by ,the invalidity of the second item and yet that the court has not power to reject the real effect of the first item, does any other principle of law aid in producing the same result of equity of heirship as would be arrived at by the rejection of the whole scheme ?

The doctrine of election is a valuable assistant in the adjustment of equitable rights. It is not precisely the technical doctrine of estoppel which forbids a claim after an act of a' party which has been consummated, and which is.inconsistent with and hostile to such a claim. When rights have been obtained, either of possession or of property itself, by force of a voluntary act, an inconsistent claim cannot afterwards be maintained under the doctrine of estoppel.

The doctrine of election applies where both the act and the claim may be in the future. It applies very especially in will cases to compel a choice which, once made, is irrevocable, or, if not irrevocable, may, during the pendency of its operating force, be assumed to control the rights of the parties. It applies especially in will cases. A party may not, as he ought not, claim the right to property under a will, which will circumscribes and limits his interest in the estate to that property and that property alone, and yet also claim to break down the barriers binding his interest in the estate as created by the testator, and obtain possession of more. This doctrine is amply sustained by its application in many cases. The acceptance of the terms of a will deprives a party even of a just claim against au estate which is inconsistent with the terms of the will. Caulfield v. Sullivan, 85 N. Y. 153.

A widow is estopped from asserting a rightful claim to dower because of an acceptance under a will which is inconsistent with the claim of dower. Chamberlain v. Chamberlain, 43 N. Y. 424, 442.

A son is estopped from claiming title to land coming to him from a person other than his father because of this acceptance of a. benefit under his father’s will. Leonard v. Crommelin, 1 Edw. 206 ; see, also, Herm. Estop. 1158-1177 ; Story’s Eq. Juris. 1077-1094; Shivers v. Goar, 40 Ga. 676 ; Havens v. Sackett, 15 N. Y. 369; Hawley v. James, 16 Wend. 61.

All persons connected with the subject matter upon which the will operates may avail themselves of the allegation of one party to estop her. Herm. Estop. 1183, and cases cited. If this doctrine of election is applicable here, and it would seem that no case illustrates better its reason and necessity, the plaintiff cannot claim an heirship in the home farm and the devise also of the eighty-acre farm, for the two claims are radically inconsistent with - the source of title from which each springs, and because, by the claim of one part, she violates the faith upon which the other part was given.

What follows ? The plaintiff stands as one of the heirs of real estate of her deceased father and that real estate is, under the construction of the. law, owned by the four heirs. Whether the breaking down of the testator’s scheme in the disposition of his property throws the whole into intestacy, or by electing to stand as heir she cannot take in hostility to the scheme of the will, the four daughters are tenants in common of the entire realty left by the testator.

It appears from the evidence taken in this case that an actual partition can be made. It appears that the carrying out of the intent of the testator, that his four daughters should use and enjoy the lands accumulated by him during his life time so long as they may live, can be carried out and effectuated. In order to consummate this with the accuracy and justice required by law, as in case of actual partition, the court must have the power to appoint commissioners who could set apart, either in four separate shares, or, with the consent of three to take three-fourths in common, to the three while the other had one-quarter separate from the rest, and, in order to have the judgment effective, those commissioners must have the power to make such partition. Such a partition cannot evidently be made in this action. The complaint and notice of pendency of action filed cover but the home farm and the pasture lot The eighty-acre farm is not within the purview and reach of this action. The plaintiff has not asked to have the pleadings amended so as to bring that eighty-acre farm into the jurisdiction of the court. The court has no power to compel this to be done. Wo effectual partition, therefore, can be made of the lands in which each of the heirs may have a part allotted separate from the rest. The purpose of the action fails, and therefore, on principle, coming to the conclusion which I have, the action cannot be maintained.

This conclusion is also fortified by the general rules of practice of this court. Eule 65 provides that, “ Where several tracts or parcels of land lying within this state are owned by the same persons in common, no separate action for the partition of a. part thereof only shall be brought without the consent of all the parties interested therein.” I doubt even if in this case all the parties should consent, it would be proper for the court to enforce an actual partition, without jurisdiction by an amended complaint, embracing the lands in which the four heirs have interests as tennants in common, and which the plaintiff has deliberately excluded from the scope of this action.

Judgment is, therefore, ordered for the defendantss with' costs against the plaintiff.


author: Parker, J.

text:
    In the Matter of the Petition of Marcus T. Hun et al., as Executors, etc., for Instructions in Regard to the Payment of Certain Assessments.

      (Supreme Court, Albany Special Term,

      Filed March, 1894.)

    1. Taxes—Assessments—Improvement.
    The city of Albany cannot maintain an action to recover an asssessment ■ against an owner, who did not join in the petition for the work or improvement.
    2. Same.
    In such case, the executors of such owner, in the absence of a specific direction to pay the. assessment, cannot do so.' The land passes to the devisees charged with the assessment.
    3. Same.
    The word “taxes,” in the provision of the Revised Statutes, relating to the payment of debts by executors, does not include the word “assessments,” where the owner is under no legal obligation to pay it.
    Application by the executor of the estate of Jane 0. Yan, Schaick, deceased, for instructions from the court in regard to the payment of certain assessments levied by the city of Albany against property of the deceased in her lifetime.

      John J. Linson, for devisees; John W. Pirsson and Frederick P. Foster, for legatees; Russell M. Johnston, for executor's.
   Parker, J.

During the lifetime of Jane 0. Yan Schaick an assessment for $4,931.32 was levied upon real estate owned by her in the city of Albany. The assessment was levied for the-purpose of paying such a proportion of the expense of paving-Delaware avenue as it was determined her real estate should bear. The statute authorizing the proceedings which resulted in the assessment gives to the city of Albany the right to maintain an action at law against the owner of any lot for the recovery of any assessment or apportionment remaining unpaid, made upon or against any such lot, “ provided, however, that no such action at law shall be had qr maintained against any such owner of any lot for the recovery of any assessment; or apportionment- remaining unpaid in any case where a petition of property owners is required bv law for the doing of the work or the making of the improvement, unless such owner was a petitioner to the common council for the performance of such work or the,making of such improvement”

Jane 0. Yan Schaick did not petition the common council; therefore, the city could not have maintained an action against her during her lifetime for the recovery of the assessment. Its-collection could only have been enforced out of the property against which it wi|s assessed-

Unless, then, the Revised Statutes have changed the rule which formerly obtained, the executors of Jane C. Yan Schaick’s will, not having been given specific direction to pay the assessment, cannot do so, as the land passed to the devisees charged with the assessment. This rule has illustration in Cumberland v. Codrington, 3 Johns. Ch. 229; Redf. L. & P. Sur. Ct. (5th ed. 554.)

The statute reads: “ Every executor and administrator shall proceed with diligence to pay the debts of the deceased, and shall pay the same according to the following order of classes: * * *

“ 2nd. Taxes assessed upon the estate of the deceased previous to his death.”

The devisees contend that the word “ taxes,” as used in the statute, includes assessments.

Attention is called to the case of People v. Mayor, etc., 4 N. Y., 419, in which it.was held that an assessment levied upon property especially benefited by a local improvement for the purpose of paying the expenses of it is the result of the taxing power. And, as assessment is taxation, it is said that the word “ taxes,” as used in the Revised Statutes, must be held to include assessments. That while the testatrix was not liable personally to pay this assessment during her life time, still, as the statute directs the payment of taxes, a word which the devisees assert to be broad enough to include assessments, it is insisted the executors must now be required to pay them, and thus release the real estate devised from a burden which, under the statute, did not rest upon the testatrix personally, but was solely a charge upon the land.

Reading the second subdivision by itself, the reasoning of the devisees would seem to be logical and the conclusion reached irresistible. But reading it, as we must, in connection with the introductory provision, it seems quite clear that the word “taxes” cannot be so construed as to include an assessment, where the person owning the property assessed is under no legal obligation to pay it. Because estates of deceased persons are not always solvent, the statute undertakes to regulate the order in which the debts shall be paid. It does not attempt to create debts.

The statute provides only for the payment of the debts of the deceased, and in naming the order in which the several classes of debts shall be paid, it designates taxes assessed upon the estate of a deceased previous to her death as the second class.

Hecessarily, therefore, the word “ taxes ” must be construed to mean such taxes as the testator at the time of his death was under legal obligation to pay, and constituting in the eye of the law a personal debt.

If the construction suggested be sound, it follows that the executors have no authority to pay the assessment in question.

Let an order be entered accordingly.


author: PArker, J.

text:
    The Martin Cantine Company, Pl’ff, v. Herman Warshauer, Def’t.

      (Supreme Court, Ulster Special Term,

      Filed March, 1894.)

    1. Contempt—False pleading.
    The interposition of a false verified answer, which impedes the rights of the plaintiff, is a contempt of court.

      2, Same—Fine.
    Where, but for such act, the plaintiff would have made his judgment, the court will impose upon defendant a fine equal to the face of such judgment.

      3. Pleading—Answer—Corporation.
    Denial of knowledge sufficient to form belief as to allegation of plaintiff's incorporation, is not sufficient to put him to proof of the existence of the corporation.
    Motion to punish the defendant for contempt of court, for interposing a false verified answer.

      Charles F. Cantine, for motion; F. J. Bischoff, opposed.
   PArker, J.

An examination of the on which this motion is based and ‘opposed leads irresistibly to the conclusion that the verified answer interposed by defendant was false, and that he had full knowledge of its falsity.

What his object was is suggested by the fact that a few days after the defendant had thus successfully checked the plaintiff’s march towards a judgment, he conféssed judgment in favor of the J. E. Linde Paper Company in the sum of $1,243.63, upon which as well as upon a judgment obtained against him the day following for $715,04, executions were issued, and certain property of the defendant sold, realizing between $1,000 and $1,100, a portion of which amount was applied in payment of each of these judgments, as appears by the return of the sheriff.

It is difficult to conceive of any greater contempt of court than to block the proceedings in court by perj ury, and it seems to be specificially provided for in § 14 of the Code of Civil Procedure, which provides that “ a court'of record has power to punish * * * misconduct by which a right or remedy of a party to a civil action or special proceeding pending in a court may be defeated, impaired, impeded or prejudiced, in either of the following cases: * * *

2. A party to the action or special proceeding for putting in fictitious bill, or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court.”

A pleading is a proceeding of the court—in this case á proceeding to which the defendant was not entitled. The facts did not warrant it. It was only by perjury that he obtained the use of it, and thus, in the language of the subdivision quoted from, there was “ abuse of a * * * proceeding of the court,” which in this case impeded, if it did not defeat, the rights of the plaintiff, a party to a civil action.

This question was not passed on in Moffat v. Herman, 116 N. Y. 131; 26 St. Rep. 328, because on another ground it became necessary to affirm the judgment of the general term, which reversed the order of the court below adjudging a party guilty of contempt in verifying and interposing a false answer.

It appeared that the fine imposed was in excess of that authorized by § 2284 of the Code of Civil Procedure, which governs the extent of a fine that may be imposed upon one who has been adjudged to have been guilty of a contempt of court within the provisions of § 14.

It is urged on this motion that even if the court finds that the defendant verified and interposed an answer which alleged false matter by way of defence, still he may not be punished, because the answer contained one averment which was not false, and which put the plaintiff to his proof, and, therefore, the delay which resulted would have occurred had the false defense not been set up.

One difficulty with defendant’s contention is that the averment upon which he relies did not put in issue the allegation in the complaint. The complaint alleged the incorporation of the plaintiff under the laws of the state of New York. The answer “denies any knowledge or information sufficient to form a belief ” as to such allegation. This allegation was not sufficient to require plaintiff to make proof of the existence of the corporation, because § 1776 of the Code distinctly provides that such proof need not be made except where the verified answer contains the affirmative allegation that the plaintiff is not a corporation.

The attempted denial in defendant’s answer is not an affirmative allegation that the plaintiff is not a corporation. Concordia S. & A. Assn. v. Read, 93 N. Y. 474.

This brings us to the question of punishment. Section 2281 of the Code provides when and how a party adjudged guilty of contempt shall be punished, and § 2284 fixes the limits within which a court may measure out the fine to be imposed. It provides that “If an actual loss or injury has been produced * * * a fine sufficient to indemnify the aggrieved party must be imposed ; * * * where it is not shown that such an actual loss or injury has been produced, a fine must be imposed not exceeding the amount of the complainant’s costs and expenses, and $250 in addition thereto.”

If, then, the evidence requires the finding that the plaintiff did sustain actual loss, and affords a basis for a determination of the extent of that loss, the last sentence quoted is not applicable, and the previous one, which requires a fine sufficient to indemnify the aggrieved party, is.

Now it appears that on the 8th day of December, 1893, the plaintiff moved this case for trial at the Ulster circuit, and obtained a judgment for damages and costs in the sum of $626.08.

Had the answer not been interposed, he would have been entitled to a judgment on the 12th day of November, 1893, at which time it appears the defendant had property subject to levy and sale under execution greatly exceeding in value the amount of plaintiff’s judgment, and he continued to have a leviable interest in property of a greater value than such judgment for at least ten days after plaintiff would have been entitled to enter his judgment but for the misconduct of the defendant.

The evidence, therefore, requires the finding that, but for the interposition of the false answer, the plaintiff would, in the ordinary course, have made the amount of his judgment out of defendant’s property.

Compliance with the ■ requirements of the statute, therefore, makes it necessary to impose upon defendant a fine equal in amount to the face of the judgment, with the cost of this proceeding added, which are fixed at the sum of fifty dollars

Let an order be entered accordingly.


author: Pryor. J.

text:
    Charles W. Anderson, Pl’ff, v. George. H. Porter, Def't.

      (New York Common Pleas, Special Term,

      Filed February, 1894.)

    Limitation—Execution.
    After a transcript of a district court judgment ig filed with the county clerk an execution may issue, though an action on the judgment is barred’ by the statute of limitations.
    Application for leave to issue execution.

      Isaac L. Miller, for pl’ff; George D. Beattys, for def’t.
   Pryor. J.

On the 3d day of December, 1886, the plaintiff recovered a judgment in a district court of this city, .and on the same day duly filed a transcript in the office of the County clerk. Five years having elapsed since entry of the judgment, the plaintiff applies, under section 1377, sub. 2, Code of Civil Procedure, for leave to issue execution upon it; and the motion is resisted on the ground that by section 382, sub. 7, Code of Civil Procedure, an action on the judgment is barred by the expiration of six years since its rendition.

It is obvious, however, that the enforcement of a judgment by execution is not the legal equivalent of an action upon it; and that, though the remedy by suit be extinct, the right survives and may be made fruitful by the realization of liens and securities. Hence, while by operation of the Statute of Limitations the creditor loses the right of action on his judgment, his right to enforce it by execution still subsists in all its plenitude/ Waltermire v. Westover, 14 N. Y. 16; Johnson v. Albany &c. R. R. Co., 54 N. Y. 416, 424; Kincaid v. Richardson, 25 Hun, 237 ; Rose v. Henry, 37 Hun, 397; Townsend v. Tolhurst, 10 N. Y. Supp. 378 ; 32 St. Rep. 21; Herder v. Collyer, 6 N. Y. Supp. 513; Otten v. Boebling, 6 Law Bul. 63.

The learned counsel for the defendant urges that the adjudication in Waltermire v. Westover, proceeded on the peculiar phraseology of an obsolete statute, and so is of no authority on the point in dispute. But, he is mistaken; the express ratio decidendi in the opinion of the court is the distinction between right and remedy, and the effect of the Statute of Limitations in barring an action merely, without otherwise impairing the efficacy of the judgment.

Even if this be so, still counsel contends that the doctrine of Waltermire v. Westover is superseded by the later adjudication in Dieffenbach v. Roch, 112 N. Y. 621; 21 St. Rep. 570, but, obviously in that case the question here involved was not agitated; nor “ did that cause in the slightest degree impair the decision in Waltermire v. Westover ” (Macornber, J., in Townsend v. Tolhurst, 10 N. Y. Supp., 378, 379; 32 St. Rep. 21.

Herrman v. Stalp, 6 N. Y. Supp., 514; 24 St. Rep. 40, though not an adjudication of the question in controversy, propounds a dictum favorable to the defendant’s contention; but, as the conclusion of the learned judge is deduced from the assumption that a judgment incapable of supporting an action is ineffectual for an execution, and as he himself had expressly ruled the contrary, the previous term, Herder v. Collyer, 6 N. Y. Supp., 513, I may with all respect for his recognized ability, yield my assent to what appears to be the better reason and the weightier authority.

The defendant, again, opposes the application upon the ground that the judgment on which it is sought to issue execution is not, in fact, a judgment of the court of common pleas. What of it? The judgment is “ deemed ” a judgment of the court of common pleas and may be enforced accordingly by an execution issued by the County clerk and directed to the sheriff. Code, secs. 3017, 3220. Dieffenbach v. Roch, 112 N. Y. 621; 21 St. Rep. 570, merely decides that the judgment of a justice docketed in the County clerk’s office is not a judgment “ rendered ” in the County court within subdivision 7 of section 382 of the Code; but that such a judgment so docketed is a judgment of the County court for all the purposes of enforcement by execution is plain upon the terms of the statute and is settled by authoritative adjudication. Townsend v. Tolhurst, 10 N. Y. Supp. 378; 32 St. Rep. 21; Baldwin v. Roberts, 30 Hun, 163; Lyon v. Manly, 10 Abb. 237 ; In re Gate’s Estate, 21 N. Y. Supp. 576; 50 St. Rep. 275, and cases supra.

Matter of Phelps, (6 Misc., 397) is apparently contra; but the argument of the opinion is too artificial and inconclusive to satisfy the understanding.

The judgment being still alive and operative, and the Statute of Limitations opposing no obstacle to its enforcement by execution, the manifest dictate of justice is that the plaintiff should have the only process available to him for the satisfaction of his debt.

Application granted, with costs.


author: Hewburger, J

text:
    John J Smith et al., Resp’ts, v. Walton Storm et al., App’lts.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Pleadings—Demurrer.
    A complaint, which alleges that an indorsement was made to procure credit for a third party and to induce the holder of the note to extend the time of payment of a claim then due, is sufficient, on demurrer, against the indorser.
    Appeal from a judgment in favor of the plaintiffs.

      Samuel R. Taylor, for app’lts ; P. Q. & F. L. Fclcerson, for resp’ts.
   Hewburger, J

This action is brought on a promissory note indorsed by the defendant Storm. The complaint alleges that the indorsement was for the purpose of procuring credit for the Manhattan Athletic Club, and inducing plaintiffs to extend the payment of a claim then due from the defendant on the credit of such indorsement. The defendant demurred to the complaint, which was overruled, and, from the order entered thereon, this appeal is taken. The complaint states facts sufficient to constitute a cause of action. The objection that there is a defect of parties defendant is untenable. The authorities cited by appellant’s counsel have no bearing on the issue raised by the demurrer. For these reasons, the order appealed from must be affirmed, with costs.


author: McCarthy, J.

text:
    Nathan Lichtenstein, Resp’t, v. Herman Lichtenstein, App’lt.

      (New York City Court, General Term,

      Filed January 18,1894.)

    Deposition—Examination before trial.
    Unless the court abuses its discretion, an order denying amotion for the examination of plaintiff before trial will not be disturbed.
    Appeal from an order denying a motion for the examination of plaintiff before trial.

      George Hahn, for app’lt; Alfred & Charles Sleekier, for resp’t.
   McCarthy, J.

This is an appeal from an order denying a motion for the examination of the plaintiff before trial. The papers used on the motion present a proper case for the exercise of judicial discretion. In the absence of abuse in the use of this discretion, we cannot interfere. There was none here, and the order must therefore be affirmed, with costs.


author: Osborne, J.

text:
    Catharine Brown, App’lt, v. Annie Brown, Resp’t.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    Insurance—Mutual benefit—Desisnation.
    Under the constitution of a mutual benefit society which declares that “any member may designate to whom payment of benefits shall he made,” he is not restricted to the designation of his widow, children or next of kin.
    Appeal from a judgment in favor of defendant.

      Backus & Manne, for app’lt; Ayers & Walker, for resp’t.
   Osborne, J.

In March, 1886, one Charles L. Brown became a member of the Brooklyn Police Mutual Aid Association, which was an unincorporated, voluntary, mutual aid association. § 2 of the constitution of said association was as follows:

“ The object of this association shall be to aid and benefit the families of deceased members.”

§ 14 of said constitution was as follows :

“ The person or persons who are entitled to payment from the funds of the association upon the death of any member are as follows : Should the deceased leave a widow and-a child or children, to his widow ; should he leave no child or children, but no widow, to said child or children ; should he leave neither widow nor any child or children, to his next of kin; should there be any child or children of a deceased child who would have been entitled to the whole or a share thereof if living, then to such child or children will go the share their parent would have taken. Any member may, however, designate to whom such payment shall be made, by a will, or by a writing signed and acknowledged by such member, and filed with the treasurer of the association.”

At the time of joining said association said Brown designated his wife, the defendant herein, as the beneficiary, and for a period of 21 months, and up to April 9, 1889, she paid the dues and assessments necessary to continue said Brown a member in good standing in the association. In 1889 said Brown left his wife, and on July 28, 1891, he married the plaintiff, at W'oodhaven, L. L, and continued to live with her as her husband- up to the time of his death, on February 4, 1892, and she supported, cared for him, and nursed him, and she also paid the dues and assessments necessary to continue said Brown’s membership in the association. The evidence fails to show that plaintiff’s marriage with said Brown was not contracted by her in good faith, and on the assumption '4hat he could lawfully marry her. On December 22, 1891, said Brown made his will, by which he bequeathed to the plaintiff, designating her as his wife, the benefit fund of $1,000, and therein, directed the treasurer of the association to pay said sum to her “as a just reward for her faithful devotion to me during our married life, during which time I was an invalid, unable to work ' and care for myself. She made a home for me in my illness.” On the same day said Brown inclosed a copy óf his said will to the treasurer of the association, with a note requesting him to place the same on file in his office.. After the death of said Brown said will was duly admitted to probate in Suffolk county, and letters testamentary thereon were issued to the plaintiff. Thereafter the plaintiff commenced this action against the association to recover said sum of $1,000, and by an order of this court said association, deposited said sum with the clerk of this court, and Annie Brown, the lawful widow of Charles L. Brown, was substituted as defendant herein. On the trial of this cause at special term, the learned trial judge gave judgment for the defendant, and said judgment was mainly based on the following conclusion of law, viz:

“ That the said Brooklyn Police Mutual Aid Association having been formed for the benefit of the families of the deceased members, the designation provided for in § 14 of its constitution is confined to the members of the family of a deceased member.”

Plaintiff appeals from said judgment.

The learned counsel for the respondent contends that by article 2 of the constitution of the association above quoted the benefits were limited to .the families of deceased members, and that the last sentence of § 14 above quoted, provides that “ any member may, however, designate to whom such payments shall be made,” is to be so construed as to limit the designation to one of the-class named in the first part of said § 14, to wit, the widow and children of a deceased member.” We hardly think that this closing sentence of § 14 should receive such a narrow construction. It would seem that the words, “ any member may, however, designate to whom such payment shall be made,” were broad enough to authorize the designation of any person as the beneficiary, and that no limitation .to such designation should be fairly implied from the language that precedes the words just quoted. If the framers of the constitution of the association had intended to limit its benefits to the widows and children of a deceased member, it is reasonable to assume that such intention would have been clearly expressed. It is not necessary, however, and we do not intend to be understood as basing the conclusions at which we have arrived on the construction of this section only. Provisions of a similar character are by no means unusual in benefit associations, and we have found no case which limits the designation of the beneficiary to the family or a member thereof, where the constitution of the association also authorized the designation of some other person as the beneficiary. On the contrary the authorities seem to support the opposite view. In Bishop v. Grand Lodge, 112 N. Y. 627; 21 St. Rep. 811, the object of the defendant association was stated to be “to assist and. support members or their families in case of sickness, want, or death.” The fourth section of the articles of incorporation provided that the benefit fund might be provided and set apart to be paid over to the “families, heirs, or legal representatives of deceased or disabled members, or to such person or persons as such deceased member might, while living, have directed.” Yet in that case the court, in its opinion, plainly conceded the right of the member to designate some other person than his family, or a member thereof, as the beneficiary, notwithstanding the object of the association was stated to be to “assist and support members or their families.” In Massey v. Mutual Relief Society, 102 N. Y. 523; 2 St. Rep. 487, the certificate of incorporation stated its object to be “to combine the efforts of all of its members with the view to effect mutual relief, aid, and -systematic contributions of benevolence and charity during their lifetime, and to their respective families when rendered necessary.” The court there held that under a by-law which provided that the objects of the society shall be, inter alia, to furnish aid to families of members or their assigns, a member was not limited in his designation of the beneficiary to one of his family. In Story v. Williamsburgh Masonic M. B. Association, 95 N. Y. 474, the object of the defendant’s association was to provide for the relief of widows, orphans, and heirs of deceased members. Plaintiff’s husband had designated her as the beneficiary, and her claim was contested on the ground that she was not the widow of the ■ deceased member, defendant claiming that he had a wife living m England at the time that he married plaintiff. The court there said:

“It may be true that the by-law which prescribes the obligation and duty of the association on the death of a member contemplated a payment to the person who should be the lawful widow of a deceased member. But this was not a limitation of the power of the company so as- to prevent it from recognizing as the beneficiary a person who might be designated by the member as holding to him the relation of wife. Such designation, made during the lifetime of the member, and assented to by the company, until changed by the mutu'al agreement of the member and the company, or at least until the arrangement was repudiated by one of the parties thereto, was binding."

In the light of these cases, and applying their principles to the case before us, it seems to us that, under the charter of the Police Mutual Aid Association, Brown, in his lifetime, had the right to designate the plaintiff, with whom he was living as his wife, as ■ the beneficiary who should receive the fund of $1,000, and that, he having so designated her by his will, the fund should be paid "to her.

Judgment should be reversed, and a new trial ordered, with costs to plaintiff to abide the event.


author: Per Curiam.

text:
    Henry G. Buckhout, Resp’t, v. Jacob S. Berger, App’lt.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    Brokers—Commissions.
    The commissions of a broker, who was employed to procure a person to erect a building and lease it to his employer for a term of years at 10 per cent, of its cost, are not limited by the amount of the rental.
    Appeal from a judgment in favor of plaintiff.

      Horace Graves, for app’lt; Jerry A. Wernberg, for resp’t.
   Per Curiam.

Plaintiff brought this action to recover on a quantum meruit for his services in procuring a capitalist ready and willing to erect a theatre at a cost not exceeding $75,000, and to lease the same to the defendant .for a term of years, at a rental of 10 per cent, on the gross outlay. Plaintiff had a verdict. The learned counsel for the defendant claims that it was error for the court to refuse to charge that plaintiff, if entitled to recover, could only recover, in the absence of any special agreement, the usual broker’s commissions on the rentals as the limit of his compensation. We think the court was right in refusing so to charge, because the services claimed for included more than the mere rental of premises; they included the finding of a -capitalist willing to buy land in a specified section of the city, and to erect a theatre on plans proposed by defendant, as well as the leasing thereof.to defendant. What the services rendered by plaintiff were fairly worth was left to the jury, on the evidence, and we think their verdict was a just one.

The exception to the refusal to charge as requested at folio 129 was also untenable. There was no evidence in the case that would have justified the jury in finding any agreement that Williams, the capitalist, was to pay plaintiff for his services. Further, the question as to whether defendant employed plaintiff was left to the jury to determine, and the court charged the jury that plaintiff could “ only recover on the theory that he was employed by Mr. Berger.” We think that the judgment and order appealed from should be affirmed, with costs.


text:
    Ann Byrne, as Executrix of Philip J. Byrne, Deceased, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    Master and servant—Sate place.
    The fact that a protruding boulder fell by reason of the negligent manner in which the embankment had been graded demonstrates that the master failed to furnish a reasonably safe place in which to work.
    Appeal from a judgment in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Thomas E. Pearsall, for resp’t.
   Osborne, J.

Plaintiff brought this action, as administratrix of her son, Philip J. Byrne, to recover damages from the defendant for haying negligently caused his death. She obtained a verdict in her favor for $2,000, and defendant appeals.

In and previous to the month of May last, defendant was engaged in the construction of a large power house on First avenue, in this city, extending from Fifty-second to Fifty-third streets. Prior to May 23d, the cellar had been excavated some 20 to 25 feet, and the foundation walls along the First avenue side had been built up, with the exception of an opening in the wall about 15 feet wide at the base, and widening on each side, after the manner of steps, till it reached the top of the wall. Outside of this was a bank some 15 feet high, extending up to the street level. Plaintiff put in evidence tending to show that this bank was negligently constructed or graded, in that it had a slope of but 5 to 6 feet, while defendant offered evidence to show that this bank had a slope of from 15 to 16 feet. It was further shown that the floor of the cellar in front of this First avenue foundation • wall had been concreted for a distance of some 8 or 10 feet or more, back from the wall, including the space in front of the opening. On or in the face of this bank, and opposite the-opening, was a large boulder, some 4 or 5 feet wide one way and 3 feet the other way, and about 2 feet thick, and weighing upwards of 2 tons. About one-third of this boulder protruded from the face of the bank. Plaintiff’s witnesses testified that the bottom of this boulder was about 4 feet above the level of the cellar floor, while it was testified on behalf of the defendant that it was only from 9 to 12 inches above the cellar floor. On May 23d the deceased was, for the first time, employed on the work. He commenced work at half-past eight o’clock in the morning. Until about 11 o’clock he was pounding down the earth used for filling in between the foundation wall and the bank. Then he was put to work shoveling sand about the middle of the cellar. Plaintiff’s evidence went to show that a considerable quantity of earth had from time to time, previous to the day in question, fallen from this bank through the opening in the wall onto the cellar floor, so that it extended out some 8 or 10 feet on the floor; that, between 2 and 3 o’clock in the afternoon, deceased and two other men were sent to shovel away this accumulation of earth; that while deceased was so engaged, and after working there about three-quarters of an hour, and when standing some 5 feet back from where the boulder was, the earth or sand supporting the boulder suddenly gave way, and the boulder was precipitated onto the deceased, and caused his death. On the part of the defense, the evidence was to the effect that the deceased and two other men were sent to dig out a trench in the above-mentioned opening, on the line of the wall already constructed, for the purpose of laying a cement foundation on which to build up the continuation of the foundation wall across the opening, and that, while so engaged in the trench with his fellow workmen, the boulder was caused to fall, by reason of the excavating that they were engaged in.

The learned trial judge charged the jury that, if the contention of the defendant that the bank had a slope of 15 to 17 feet was proven, such a “slope, according to the testimony in this case, was sufficient, or was the exercise of reasonable diligence in that respect, notwithstanding that it fell down.” At the request of defendant’s counsel the learned trial judge further charged the jury “that, if the decedent was engaged in digging the trench between the walls at the time of the accident, the plaintiff cannot recover.” The jury having found a verdict in favor of the plaintiff, we may fairly assume that they found, on the evidence, that the slope of the bank was insufficient, and also that decedent was not engaged in digging the trench, but was at work shoveling away the earth that had accumulated on the cellar floor through the opening in the wall, at the time he met his death. The learned counsel for the defendant contends on this appeal that decedent's death was due only to the negligence- of his fellow servants ; that the master’s duty to furnish a safe place for his servant to work does not apply to a case like this, because it was the digging— the carrying out of the work itself—that created the damage; and that the situation was created by the men employed in the work. We do not think that this contention can be maintained. Here was a case where decedent had acquired no previous experience in works of a similar character, nor had he had any opportunity to acquire any knowledge of his surroundings, for he met his death on the very day that he went to work at this place. If the deceased had been digging in the trench at the time, and he or his fellow workmen had so ignorantly or carelessly excavated as to cause the boulder to fall, then there might be some ground for the position claimed by the learned counsel for the defendant; but, as before stated, the jury, by their verdict, have found that decedent was not digging in the trench. He was simply directed to shovel away the earth that had accumulated on the cellar floor. There was no risk, obvious to him, that this boulder was liable to fall on him while at work some five feet back from it; and he was justified in assuming that his employer had discharged its duty, in providing a reasonably safe place for him to do the work assigned to him. That the place where decedent was put to work was unsafe, the fall of the boulder clearly demonstrated. That the boulder fell by reason of the negligent manner in which the embankment had been graded,—by reason of its insufficient slope, —is demonstrated by the verdict of the jury under the instruction of the learned trial judge. It is well settled that the duty of the master to furnish his servant with a reasonably safe place to work in is one which the master himself is bound to perform, and lie cannot excuse himself from this duty by delegating it to another. It was the duty of the defendant to see that the place where deceased was put to work was not only reasonably safe, in the first instance ; but it was also the further duty of the defendant to exercise proper acts of care, from time to time, to see that the place continued safe. The very fact that portions of this embankment had from,time to time fallen through this opening in the wall onto the cellar floor should have arrested the attention of the defendant, and caused it to take proper precautions to prevent the fall of this protruding boulder. The cases of Kranz v. Long Island Railway Co., 123 N. Y. 1; 33 St. Rep. 46, and of Doyle v. Baird, 6 N. Y. Supp. 517; 25 St. Rep. 749, both of which related to injuries sustained in excavations, amply support our views. The judgment and order denying motion for new trial should be affirmed with costs.


author: Andrews, 0. J.

text:
    The People ex rel. Roswell W. Keene, App’lt, v. The Board of Supervisors of Queens County, Impleaded, etc., Resp’t.

      (Court of Appeals,

      Filed April, 1894.)

    1. Highways—Connecting bridge—Supervisors.
    Where a bridge, part of a highway, over tide water, which divides two counties, becomes out of repair, the board of supervisors of both counties must make the reparation, even though it should require the bridge to be rebuilt.
    2. Same—Expense.
    The expense thereof is a joint and equal charge on the two counties.
    3. Same—Chap. 290 of 1891.
    Chap. 290 of 1891, which was intended to apply to the bridge in question, is unconstitutional.
    4. Same—Mandamus.
    Mandamus will lie to compel such supervisors to take such action as is necessary for the performance of such duty.
    5. Same—Relator.
    A citizen of either county, who owns property therein and is injured or inconvenienced by reason of the non-repair of the bridge, maybe a relator in such proceeding.
    6. Same—Controlling action.
    The court cannot control the discretion of such supervisors, so long as they act in good faith, in determining the form or manner in which they shall execute their duty.
    7. Same—Demurrer to writ.
    If the substantial right is set out in the writ, the proceeding will not fail because the relator asks for too much, or mistakes to some extent the relief to which he is entitled.
    8. Same—Defense.
    Section 7, chap. 907 of an act of Congress, passed September 19, 1890, does not justify inaction on the part of the supervisors.
    9. Same.
    Such statute might excuse them in a proceeding for contempt, where it appeared that such consent, though sought in good faith, could not be procured.

      Roswell W. Keene, for app’lt*; Francis H. Van Vechten,tor resp’t.
   Andrews, 0. J.

The demurrer to the alternative writ presents the question whether the facts alleged a duty rested upon the boards of supervisors of the counties of Kings and Queens to rebuild the bridge over the Newton creek, on Maspeth avenue, where abridge previously existed connecting the avenue in Queens county with the portion of the avenue in the county of Kings within the city of Brooklyn, and whether the remedy by man-damns in this proceeding should be awarded. The alternative writ, after reciting the facts stated in the petition, commands the boards of supervisors o£ the respective counties to construct a bridge over the creek at Maspeth avenue, specifying the width and other particulars conforming to the description in the act, chapter 290 of the Laws of 1891, which authorized and empowered the boards of supervisors of the two counties to build a bridge at the point in question, “or to show cause,” &c. The proceeding was commenced after the passage of that act. in reliance, doubtless, upon its validity. But it is now conceded that the act was in contravention of the constitutional provision (art. 18, § 3) prohibiting the state legislature from passing local bills providing for building bridges, &c., and authorizing the enactment by the legislature of general laws conferring upon boards of supervisors powers of local legislation. If the only duty resting upon the boards of supervisors of two counties in respect to the bridge in question was that attempted to be created by this statute, the proceeding must of necessity fail. But if there was an antecedent or subsequent duty imposed by other statutes now in force to rebuild the bridge, and that duty is sufficiently set forth in the writ, the writ may go and that duty may be enforced; although the relator may have proceeded upon a mistake as to the validity of the act of 1891, unless upon technical objections to the form of the writ, he must be remitted to a new proceeding.

Before considering the question of form we shall consider the primary question whether a duty is imposed by law upon the boards of supervisors of the two counties to rebuild the bridge independently of the act of 1891—that is, a duty disclosed upon the face of the writ, either absolute or conditional, which the defendants have failed to perform. It is averred in the writ that Maspeth avenue was open as a highway in 1836; that it was the main thoroughfare of travel from the city of New York and Williamsburgh (now Brooklyn) to Queens county; that in the year mentioned a drawbridge was constructed over Newtown creek at Maspeth avenue for public travel; that the said avenue and bridge have continued as a turnpike, plank road, or as a public highway from 1836; that the turnpike and bridge company abandoned the bridge many years ago, and that for a period of five consecutive years (after such abandonment) the road and bridge was used as a public highway ; that the bridge a number of years ago became out of repair and was taken down or destroyed, and has not been rebuilt, &c. These and other facts alleged in the writ sufficiently show, on demurrer, that Maspeth avenue was a public highway, and that the bridge constituted a part of the same.

The duty to repair a bridge on a highway which has become out of repair is imposed by the statutes upon some local authorities. Under the general statutory system of this state the duty is placed on the towns or municipalities in which they are located, and not upon counties, as in England, although many exceptions have been created by special statute. Hill v. Supervisors of Livingston County, 12 N. Y., 52. It appears by the writ that New-town creek is a navigable stream within the ebb and flow of the tide, and constitutes, at the point in question, the dividing line between Kings and Queens counties. The case, therefore, is brought within § 68 of the county law of 1892 (chap. 18). That section (which is substantially a re-enactment of sub. 5, § 1, of chap. 482 of the Laws of 1875, as amended by chap. 320 of the Laws of 1880), after declaring that “ the board (of supervisors) shall provide for the care, maintenance and repair of any draw or other bridge,” &c., and providing how the expenses shall be apportioned and paid, proceeds as'follows: “ But where such bridge shall span any portion of the navigable tide waters of the state, forming at the point of crossing the boundary line of two counties, such expense shall be a joint and equal charge on the two counties in which the bridge is situated, and the board of supervisors in each of such counties shall apportion such expense among tbé several towns and cities,” &c. The duty imposed by this section ■ upon the board of supervisors of two counties divided by navigable tide water, spanned by a bridge on a highway crossing the stream, to keep the same in repair, is plainly administrative and mandatory, and not discretionary. It is power conferred in the .public interest and for the public benefit, and is imperative within many authorities. See People ex rel. Otsego Bank v. Supervisors of Otsego County, 51 N. Y., 401; Com. v. New Bedford Bridge, 2 Gray, 339.

Upon the facts stated in the writ, which on demurrer are to be taken as true, we have the case of a bridge, part of a highway over tide water which divides the counties, which has become out of repair, and the reparation of which requires that the bridge shall be rebuilt. The statute casts upon the two boards of supervisors the duty to make the reparation. This duty, the two counties understood, was imposed upon them, since they united in approving the bill which culminated in the law of 1890, but which is now coneeded to be unconstitutional. The writ shows that the supervisors of Kings County have refused to pass any resolution authorizing the construction of a new bridge, and the supervisors of Queens refuse to proceed further than they have already gone. We think the demurrer was not well taken, unless some of the technical objections must prevail. The relator, as a citizen of Queens County owing property on Maspeth avenue, who is injured by the inaction of the supervisors, and who is put to inconvenience by reasons of the non-repair of the bridge, is entitled to be a relator in this proceedings. In re Baird, 138 N. Y. 95 ; 51 St. Rep. 690. The command of the writ is undoubtedly too broad. It is for the boards of supervisors to determine the character of the bridge to be built, so only that it meets the public need. The statute of 1890 being out of the way, it is the office of the writ in this case to put. the boards of supervisors in motion. The court cannot control their discretion in determining the particular form and manner in which they shall execute the duty imposed upon them so long as they act in good faith. The strictness which formerly prevailed in mandamus proceedings has been greatly modified by statute and the decisions. The- alternative writ is now equivalent to the complaint in an action, and the demurrer and return stand as a demurrer or answer in an ordinary suit. If the substantial right is set out in the writ, the proceeding will not fail because the relator asks for too much or mistakes to some extent the relief to which he is entitled. The court, in awarding the peremptory writ, may mould it according to the just rights of all the parties. Code of Pro., secs. 2067, 2090; People ex rel. Henry v. Nostrand, 46 N. Y. 375 ; People ex. rel. Green v. Dutchess & C. R. R. Co., 58 Id. 152 ; People ex rel. Nostrand v. Wilson, 119 Id. 515; 30 St. Rep. 79.

The objection that under sec. 7 of chap. 907 of the act of Congress passed Sept. 19, 1890, the boards of supervisors cannot proceed to construct the bridge until the location and plans shall have been approved by the Secretary of War, may excuse them in a proceeding for contempt, in case it appears that such consent has been sought in good faith and cannot be procured. We think the existence of this statute does not justify inaction, and the matter can be provided for in the peremptory writ, if one shall be , issued.

We think the demurrer was not well taken, and the judgment should, therefore, be reversed, with leave to the defendant to answer on payment of costs.

All concur.

Judgment reversed.


author: Van Wyck, J.

text:
    Benjamin G. Hitchings, App’lt, v. Brooklyn Elevated Railway Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)
    Evidence—Elevated Railway.
    In an action for damages against an elevated railway, evidence of the comparative increase in value of similar property in the immediate neighborhood is admissible.
    Appeal from a judgment rendered in favor of plaintiff.

      H. M. Hitchings, for app’lt; Hoadly, Lauterbach & Johnson, for resp’t.
   Van Wyck, J.

This is an action in equity to compel defendant, as á condition of avoiding an injunction against its further use of the street, to pay the plaintiff compensation for his land taken in the street, and for damage to his adjacent premises by the structure of an elevated railway, and the continuous operation thereof. The trial resulted in a judgment for $25 damages in favor of plaintiff, from which he appeals. Among other rulings which he insists were errors harmful to his claim was that excluding evidence of the comparative increase of similar property in the immediate neighborhood, viz. on the nearest part of the two nearest streets. The court of appeals has held such testimony admissible, and in fact, while discussing the inadmissibility of the general opinion of an expert as to what would have been the value of certain premises if the railroad had not been built, suggested that evidence of the comparative increase in value of similar property in the neighborhood furnished proper data for the consideration of the jury or court on the question sought to be established by such general opinion or conclusion of the expert. Roberts v. N. Y. El. Railroad Co., 128 N. Y. 455, 473 ; 40 St. Rep. 454; Becker v. Met. El. Railway Co., 131 N. Y. 509, 511, 513; 43 St. Rep. 726. Judgment must be reversed, and new trial granted, with costs to abide the event.


author: Yan Wyck, J.

text:
    Wilkin Kuhlman et al., App’lts, v. City of Brooklyn, Resp’t.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    Eminent domain—Rights of mortgagee.
    A mortgage of city lots, which excludes there from the land taken for the widening of the street, does not transfer the award for the excluded portion.
    Appeal from a judgment in favor of defendant.

      Chas. C. Smith, for app’lts; Almet F. Jenks, for resp’t.
   Yan Wyck, J.

This is an action to recover awards made for land (the front strips of two lots) taken for the widening of North Second street in this city, under an act passed April 19, 1871, (Laws 1871, c. 559.) This is an appeal from a judgment in favor of defendant. Plaintiffs’ alleged claim to the awards rests upon a mortgage made after the passage of the act, which mortgage-expressly excludes from premises described therein the land taken for the widening of this street, and restricts the conveyance to the parts of the lots not taken. No intention to assign these awards can be inferred from this mortgage. In Engelhardt v. City of Brooklyn, 3 Misc. Rep. 30; 50 St. Rep. 572, cited by plaintiffs, and Delap v. City of Brooklyn, 3 Misc. Rep. 22; 51 St. Rep. 128, we held that there was an assignment, for the reason that the mortgages in those cases were the exact reverse of this one, in that they conveyed the whole of the lot by metes and bounds, as if no-part thereof had been taken for the widening of the street. Judgment must be affirmed, with costs.


text:
    Lena Kurzmann, Resp’t, v. New York and Rockaway Beach Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed January 22, 1894.)

    Appeal—Insufficient evidence.
    A judgment against a railroad company for personal injuries will be reversed where there is no satisfactory evidence that the company was connected in any way with the road or the men in charge of the train.
    Appeal from a judgment in favor of the plaintiff.

      William C. Beecher, for app’lt; Hurd & Grim, for resp’t.
   Yan Wyck, J.

In the complaint it is alleged that defendant is a corporation, and a common carrier of passengers between1 Flatbush avenue, Brooklyn, and Rockaway Beach, Queens county, and was or is the owner or lessee in possession of the engines, cars, tracks and switches operated ana used by it between said termini, and employer of the conductors, engineers and brakemen employed in and about said engines and cars; and that plaintiff was injured while alighting at Franklin avenue station, Brooklyn, from one of said cars, through the negligence of those in charge thereof. The answer denies every allegation except that defendant is a corporation. From the judgment in favor of plaintiff, this appeal is taken.

A careful perusal of the testimony discloses no satisfactory evidence that defendant was the owner or lessee in possession of the train or the tracks, or employer of those in charge of the train. There is no proof of what, if any, roadbeds or tracks the defendant owns, or where the same begin or end; and it is uncontroverted that this train, at the time of the accident,was on Atlantic avenue, Brooklyn, at Franklin avenue station, on the tracks of the Long Island Railroad Company: There is evidence that the latter company runs trains over the track from Rockaway Beach to this station. Whether or not the train in question was in charge of defendant ought to be capable of easy proof.

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


author: Follett, J. O’Brien, J.,

text:
    John H. Dwight et al., Resp’ts, v. Howard G. Badgley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12,1894.)

    1. Contract—Gaming.
    No recovery can be had for money advanced and services rendered under a contract, which, at time of its execution, defendant stated to plaintiff’s agent, was a gambling contract.
    3. Same—Intent.
    The intent, with which the parties acted, may be inferred from the course of dealing between them.
    Appeal from a judgment entered on a verdict directed by the court and from ah order denying a motion for a new trial. ..

      Leavitt & Leavitt (Edwin B. Leavitt, of counsel), for app’lt;

      Wolff & Hodge, for resp’ts.
   Follett, J.

Hodge, the plaintiffs’ principal witness, and- with whom the defendant had his transactions, was the Hew York agent of the plaintiffs. He testified:

“In these transactions I was associated with Dwight and Gillette as broker, and I received my commission from them; and in each one of these transactions I was paid my commission by Dwight and Gillette, the plaintiffs.”

The defendant testified:

“ Q. What was your intention in regard to these transactions, and to the delivery of this wheat, and the purchase and sale of it, at the time you made these transactions ? A. My intention was entirely to buy and sell on options, and to adjust the differences. Q. Between the market price of buying and the market price of selling? A. Yes; that was distinctly stated to Mr. Hodge. Q. Did he state that to you ? A. That was distinctly understood. Q. Was there anything said in regard to how the profits or losses should be adjusted? A. Most assuredly. Q. What was said ? A. I cannot remember the specific conversation, but the substance of it was he would buy and sell on options, and the difference I should have, if any, in my favor. " A. But, if it was a loss, you should lose what you put up? A. Yes. Q. And that was so in regard to each one of these transactions ? A. Yes; each and every one.

Here is positive evidence that it was distinctly stated between the plaintiffs’ agent and the -defendant that the contracts were to be gambling contracts. The knowledge of the plaintiffs’ agent is their knowledge, and it is binding on them; - It is conceded that none of the grain mentioned in these transactions was" ever delivered, and there is no evidence that the plaintiffs owned any grain, or that they purchased any for delivery to the defendant. All of the purchases were for future deliveries, and the statements of the transactions rendered by the plaintiffs, and their bill of particulars, corroborate the testimony of the defendant that the transactions were intended by both parties to be wager contracts. The plaintiffs’ agent did not deny that he had the conversation with the defendant, as testified by the defendant. It is true that he testified that he intended that the grain should be delivered. It is competent for a person to testify that he engaged in a transaction in good faith, or with a particular intent; but, if the transaction be such that from it or from the other evidence in the case, a different - intent may be fairly inferred, the question with what intent is one for the j ury. If the testimony of a party that he committed an act which, if done with a lawful intent, would be innocent, but, if with an unlawful intent, a crime, is to be held to be conclusive, convictions in criminal cases in which intent is a material fact will be quite difficult. The intent with which these parties bought and sold may be inferred from the course of dealing between them. Kenyon v. Luther, 4 N. Y. Supp. 498 ; 19 St. Rep. 32. I think the evidence presented a question of fact for the jury, and that the court erred in directing a verdict for the plaintiffs.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

O’Brien, J.,

(dissenting.) The action was 'brought to recover upon an account for certain goods purchased, services rendered, and money advanced. The plaintiffs were commission merchants and brokers in Chicago. Through one Hodge, their agent at Hew York city, they had transactions with the defendant, which consisted in the purchase and sale for him of wheat and corn, which resulted in a loss, and for which, less the amount already paid by defendant, the action is brought. Though two exceptions were taken to rulings upon evidence, one of which alone is urged, it is unnecessary to discuss them, as a mere examination will demonstrate that they are untenable. The substantial and important question, going directly to the merits is whether or not the direction of a verdict in plaintiffs’ favor was right. The controversy centered upon whether the purchases and sales were actual transactions, or mere bookkeeping; the form of actual transactions being assumed, but the real intent of the parties being to gamble upon the differences between the market value and the contract price. Appellant insists that there was sufficient evidence rendering it necessary, on his request, for the trial judge to submit the question to the jury whether it was the intention of the parties that the grain purchased or sold should not be delivered, and that only differences between the contract and market price should be adjusted, thereby rendering the contracts void as mere wagers; and that the direction of a verdict against him was error. Two witnesses, Hodge and Palmeter, who represented plaintiffs, swore in positive terms that it was not their agreement or intention to deal in differences; the latter testifying that the orders were executed by his telegraphing to and receiving a reply from Chicago that the firm there had bought the wheat on the Exchange ' or Board of Trade, and that the wheat was ordered to be ready for defendant at the time it was contracted to be delivered. Defendant, on the other hand, testified that he had no intention to contract for delivery of either wheat or corn, and that the understanding was a contract to merely speculate in differences. Defendant also testified that the substance of the conversations between himself and the plaintiffs’ agent as to the character of these transactions was that he (the plaintiffs’ agent) would buy and sell on options, the differences, if resulting favorably, to go to defendant, and, if a loss, to be paid by defendant. If the question were solely as to defendant’s intent, this testimony would have been sufficient to require its submission to the jury. It was necessary, however, for defendant, in support of the burden placed on him of establishing the defense of a wagering contract, to give some evidence tending to show, not that he alone, but that both parties to the transaction, intended to gamble; the rule being: “When it is necessary to prove concurrence of intent, as in an illegal agreement, the intent of each must be proven.” This rule was laid down in the opinion of this general term on the former appeal, Dwight v. Badgley, 14 N. Y. Supp. 498; 38 St. Rep. 112; and finds support in abundant authority.

How, who were the parties to these contracts? Certainly not the plaintiffs and the defendant. The defendant never contracted to sell or to buy from the plaintiffs any wheat. As said in Lehman v. Strassberger, 2 Woods, 554, which was an action in many respects similar to the case at bar:

“The" parties with whom defendant contracted were persons other than plaintiffs, whose names were not disclosed, and plaintiffs were only factors of defendant to make contracts with other parties, the plaintiffs being mere agents for the defendant in the transaction.”

In that case, where the brokers had advanced money to the principal to pay losses incurred in an illegal transaction, and took his note for the money so advanced, it was held that a recovery could be had upon such note. The case at bar for the plaintiffs is stronger than the one cited, because, even though it be assumed that plaintiffs were bound by the knowledge of their agent that the defendant intended not to buy or sell wheat for actual delivery, but only to adjust differences, no evidence was offered tending to show that the .persons with whom the plaintiffs dealt on behalf of the defendant had a similar intention not to receive or deliver, pursuant to the contract made, the actual commodity. On the contrary, the only testimony showing the intention of the undisclosed principals with whom the defendant, through plaintiffs, contracted, is that the transactions between them were regulated and controlled by the rules of the Chicago Board of Trade, which will not be presumed to have adopted an illegal course of business. As said in Story v. Salomon, 71 N. Y. 422 :

“We should not infer an illegal intent unless obliged to. * * * We may guess that the parties were speculating upon the fluctuations in the price of the stock, and that the defendant was not to be required to take or deliver any stock in any case, but simply to pay differences; but a contract which can have' legal interpretation and effect should not be condemned, without any proof, in that way.

These cases relied upon by defendant were different in their facts, and are easily distinguishable. Thus, Peck v. Doran & Wright Co., 57 Hun, 342; 32 St. Rep. 405, was an action to recover, under the statute, money lost by plaintiff underawagering contract with defendant upon the market price of wheat. It was therein testified that the defendant’s agents, at the commencement of the dealings, had stated thas “they assume their orders, and book them themselves; that they had no wheat to deliver, and didn’t expect their customers to want any wheat; that it was merely to adjust the difference as between the market price and the prices marked on the slip, [contract].” Kenyon v. Luther, 4 N. Y. Supp. 498 ; 19 St. Rep. 32, was an action brought, as here, to recover for commissions earned. and losses sustained, by plaintiff. By evidence excluded and excepted to, defendant offered to prove, not only that he did not intend to purchase any wheat, but also the course of dealing between plaintiff and the person in whose name the contract was made, and thus to show circumstances which might have established, or tended to establish, the fact that the same intent existed on the part of the plaintiff. The opinion, after referring to the rule that, in the absence of evidence to the contrary, an illegal intent will not be presumed, continues:

“We are unable to say that, if the defendants had been permitted to prove their intent, and the course of dealing between the plaintiff and the person in whose name the contract was made, they would not then have furnished evidence which would have been sufficient to establish their defence, or at least sufficient to have made a question of fact for the jury.”

We start, therefore, with the well-settled legal proposition that the burden of proof was on the defendant to establish his defense. This required that he should prove, or present sufficient evidence to make it a question for the jury, that the transation, as between all the parties, was a wagering contract. If here it had been shown, as in Peck v. Doran & Wright Co., supra, that the contract was really one made between the plaintiffs and the defendant, then'unquestionably there would have been sufficient evidence, not only of defendant’s intention, but also of the mental condition of the plaintiffs’ agent, which would have been binding upon them as to their intent. Thus, in addition to defendant’s own testimony as to the conversation between him and plaintiffs’ agent, the accounts rendered would be consistent with the view that there was an intention on plaintiffs’ part to deal only in. differences. But when we remember that the contract was made with third persons, as affecting whom not a scintilla of evidence was offered, such accounts are equally consistent with the view of actual transactions. Upon such evidence, equally consistent with two diverse views, one of which would uphold the contract as legal, and the other condemn it as illegal, the former view should prevail. Put in its strongest light, all that the defendant’s evidence tended to prove was that the plaintiffs, as his brokers, had knowledge of his intent not to actually receive or deliver wheat, but merely to settle differences upon the rise and fall of the market. But this, without evidence that the persons with whom the contract was made had a similar intent, would not stamp the contracts themselves as wagering contracts and thus illegal, because here, again, until the contrary was shown, the legal presumption would be that they were valid. No proof was offered, except by plaintiffs, as to the manner of executing the orders; and yet, although they testified directly to the contrary, we would have to assume, in order to sustain defendant’s position, that a jury would be at liberty, without proof, to guess, and thus decide, that no wheat or corn was ever bought or sold by plaintiffs for defendant’s account, although, as stated, the only evidence given was all the other way.

Appellant contends, however, that, as such witnesses were interested, it was for the jury to determine the truth or falsity of their testimony. We think that in appealing to this rule the appellant overlooks the fact, already twice adverted to, that the burden of showing the transaction to be an illegal one was on him; and that the direction of a verdict resulted from his failure to sustain such burden by any or sufficient proof to make it proper or essential to submit the question to the jnry. Inasmuch as the quantum of proof to be presented in a case like this was very fully and ably discussed in Bigelow v. Benedict, 70 N. Y. 207, it is unnecessary for us to restate it. As the defendant failed to offer any evidence tending to show the intent of the persons with whom the plaintiffs, on his behalf, contracted for the purchase or sale of wheat, there was no question' for the jury, and the direction of the trial court was right.

The judgment should, therefore, be affirmed, with costs and disbursements.