text:
    Samuel Baumann, App'lt, v. Carlo Libetta, Resp't.

      (New York Common Pleas, General Term,

      Filed May 8, 1893.)

    Chattel mortgage—Recital as to residence of mortgagor.
    The statute requires a chattel mortgage to be filed in the place where the-mortgagors actually reside, and the fact that the mortgage recites that the mortgagor is a resident of a certain place does not take the case out of the rule or estop a bona fide purchaser from claiming that the actual residence is at another place.
    Appeal from a judgment rendered in the district court of the city of New York for the ninth judicial district.

      George Hahn, for app’lt; Ullo, Ruebsamen & Cochran, for resp’t.
   Bookstaver, J.

This action was brought to recover the sum of $100, alleged to be the value of certain carpets and other articles of furniture claimed by the plaintiff to be his property and to have been converted by the defendant. The answer was a general denial.

From the return it appears that the plaintiff’s assignor was a re.tail dealer in furniture in the city of New York. On the 4th January, 1892, one Ferdinand Servat bought of plaintiff's assignor the articles in question for the sum of $249.90, and directed that the goods should be sent ‘to No. 131 West Twenty-third street, New York city. Servat at the time paid on account of the purchase the sum of forty dollars and executed a chattel mortgage on the goods to the plaintiff's assignor to secure the payment in instal-meats of the remainder of the purchase money. This mortgage was afterwards and before the commencement of this action assigned to the plaintiff, and the same was filed in the office of the register of the city and county of New York, but no copy was at any time filed in Kings county. It further appears that the purchaser had a place of business at No. 131 west Twenty-third street, in the city of New York, but at no time lived there or had any residence in the city and county of New York, but lived with his family in the city of Brooklyn, in the county of Kings. On the 19th April, 1892, the purchaser sold his business and the goods sued for in this action to the defendant herein and one Dell Aquila for the sum of $1,600, which was the full value of the business and the goods; that the purchase was made in good faith, and without any knowledge of the existence of the mortgage on the part of the purchasers ; and that subsequently the said Dell Aquila sold his interest to the wife of the defendant. After this sale by Servat, he failed to pay the instalments due under the mortgage, and was in arrears therefor. The defendant took possession of the goods at the time of the sale, and remained in possession until the commencement of this action, and the plaintiff ■demanded the goods from him before it was commenced, and he refused to deliver them.

The mortgage itself recites that Servat, at the time of making the mortgage, resided in the city and county of New York ; and it is now claimed that this estops the defendant from claiming that it was not the actual residence of his grantor, Servat. But the law of 1833, chap. 279, relating to the filing of chattel mortgages, provides that the mortgage shall be filed in the city where the mortgagor shall reside at the time of the execution thereof. 'This residence was determined by the judge who tried the case to have been at the time in the city of Brooklyn, county of Kings, and, indeed, he could not have found otherwise from the evidence. The statute is so direct in its language as to admit, in our judgment, of no other conclusion than that arrived at by the justice below. This very question has been before the United States ■circuit court for this circuit, and Blatchford, J., in the course of his decision, stated that “ the statute had imposed a rigid and unbending condition, to wit, a filing in the place where the mortgagors actually reside, as a preliminary to the validity of the mortgage. Whether this condition is wise or not, whether convenient or difficult of performance, is not for the courts to say. The statute exacts it and the courts must see that it is performed.” Platt v. Stewart, 13 Blatch., 481; which was affirmed by the supreme court of the United States in 101 U. S., 737. Nor will the fact that the mortgage itself recited that the mortgagor was a resident of the city and county of New York take the case out of this rule. This was expressly held by Nelson, Oh. J., in Chandler v. Bunn, Hill & Den. Supp., 167, where he said: “ The recital of the residence in the mortgage seems to be of no importance, and might, for the matter of security, be omitted altogether.” It certainly was no notice to the defendant, whom the justice below held to have purchased in good faith. He was not bound to look to any other city or county than the one in which the mortgagor resided to ascertain whether or not a mortgage had been filed. The law imposed no such duty upon him. Besides, the recital in the mortgage was nothing more than a declaration of the mortgagor as to-his residence, and the declarations of mortgagors of personal property are not evidence against a bona fide purchaser of such property. Marsh v. Kinney, 11 W. Dig., 144; Hurd v. West, 7 Cow., 752; Whitaker v. Brown, 8 Wend., 490; Latimer v. Lord, 17 W. Dig., 516.

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

Bischoff, J., concurs.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Reuben A. Britton et al., Resp'ts, v. Neil Macdonald, Impl'd, App'lt.

      (New York Common Pleas, General Term,

      Filed May 10, 1893.)

    1. Depositions—Examination of party before trial.
    Adverse examination of a defendant before trial is not allowable for the purpose of discovering a cause of action.
    2. Same.
    To authorize the examination of a party before trial, and after issue, at the instance of his adversary, his testimony must appear to be material, necessary, and probably unattainable at the trial.
    Appeal from order at special term for the examination of defendant before trial.

      Alexander V. Campbell, for app’lt; Henry B. Ely, for resp’ts.
   Pryor, J.

The object of the action is to fasten a liability upon Macdonald, as undisclosed principal, for a debt actually contracted by Blair; and the avowed purpose of the proposed examination of Macdonald is to find out if Blair was in fact his. agent. The plaintiff, Burr, swears that his “sole reason for the examination of Macdonald is to ascertain whether he had authorized Blair to act as his agent, etc.”

If Blair was not the agent of Macdonald, then, obviously, the plaintiffs have no recourse against him ; and so the desired examamination is but an experiment to ascertain whether the plaintiffs have a cause of action against Macdonald. For such purpose the examination of a party before trial is not allowable. The provisions of the Code proceed upon the fact that the plaintiff lias a right of action; and the examination of the defendant is authorized, as upon the trial, only to elicit evidence in support of that right; to establish, not to discover, a cause of action.

To entitle a party to an examination of his adversary before trial, it must appear that the “testimony of such person is material and necessary for the party making such application. Code, § 872, subd. 4. But it appears by the complaint that the plaintiffs have other sources of information and evidence as to Blair’s agency for Macdonald, and particularly, by the moving papers, that Blair isa competent and accessible witness to establish such agency. -

No adequate occasion exists, therefore, for the examination of Macdonald. “ If from the nature of the action, and the other facts disclosed, the judge can see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged, nevertheless, to make the order.” Bari, J., in Jenkins v. Putnam, 106 N. Y., 272; 275; 8 St. Rep., 710.

It is not apparent, the contrary rather, that Macdonald’s testimony will not be attainable at the trial; and this defect in the moving papers was of itself sufficient to defeat the motion. Williams v. Folsom, 54 Hun, 308; 27 St. Rep., 375; Carter v. Good, N.Y. Law Journal, April 22, 1890, Andrews, J.

It is the right of a party to have the trial of his cause in due order and in open court; and only for obvious and adequate reasons may the right be partially defeated by the taking of testimony out of court or in advance of the trial.

Summarily the case is this: After suit against Blair, the man whom the plaintiffs trusted, they discovered his insolvency ; thereupon they bring this action against Macdonald on the possibility that he was Blair's principal; and now they seek by an examination of Macdonald to'ascertain whether their conjecture as to his liability be a fortunate speculation. This will never do. Already the privilege of inquisition against an adverse party before trial has been pushed to the point of annoyance and oppression ; but it has not yet been sanctioned as an instrumentality by which a baffled plaintiff may discover a responsible defendant. See interesting and instructive note, 1 Silvernail’s Supreme Court, 2-55.

Order reversed, with costs and disbursements.

Bookstaver and Bischoff, JJ., concur.


author: Pryor, J,

text:
    Bernard J. Campbell, Resp't, v. Juan Y. Jimenes et al., App'lts.

      (New York Common Pleas, General Term,

      Filed May 10, 1893.)

    1. Contkact—Evidence .
    If the intention of the parties to a written contract be intelligible upon the face of the instrument, extrinsic proof of its meaning is inadmissible; and its construction is for the court alone.
    2. Same.
    But if its terms be so obscure or ambiguous as not to be understood without the aid of adventitious light, then evidence, not only of the surrounding circumstances, but of the acts and conversations of the parties, is competent to illustrate their intention; and upon such evidence the meaning of the instrument is for determination by the jury.
    Appeal from judgment of the general term of the city court, affirming judgment on verdict of jury.
    Action for damages from breach of a contract of employment
    The contract is as follows: “I, Bernard Campbell, chief engineer, hereby ágree to render myself to the orders of Captain Compton for service on steamer he may assign, and for service in the West Indies, not to extend six months, receiving wages at the rate of two hundred and fifty dollars Amer. gold or equivalent per month, one month to be paid in advance on leaving, and free passage out and home. New York, 8th, 1889.”
    (Signed by the parties.)

      Frank H. Platt, for app’lts; William F. Randell, for resp’t.

       Reversing 51 St. Rep., 494.

   Pryor, J,

The judgment recovered by the plaintiff represents damages from the breach of a contract for a six months employment. If, in fact, he was hired for a shorter term, the judgment is necessarily erroneous. Or, were the contract for no definite duration of service, either party might terminate it, certainly at .the end of any month. De Briar v. Minturn, 1 Cal., 450; Howard v. East Term., etc., Co., 8 Southern Rep., 868; Clark v. Ryan, 11 id., 22; Ward v. Ruckman, 34 Barb., 419. And, when the hiring is for a period “ not exceeding ” a named term, its duration is indefinite. Harper v. Hassard, 113 Mass., 187; Peacock v. Cummings, 46 Pa. St., 434; Coffin v. Landis, id., 426.

“ Either party may put an end to the contract at any time, if the term is indefinite ; as if A. employs B. to serve him at a certain sum a month, for a period not exceeding three years.” Wood on Master & S. (2d ed.), § 133.

If such was the agreement in question, it is clearly incapable of sustaining the action.

To the support of the judgment, therefore, it is indispensable that the contract on which it rests should stipulate for a service of six months.

Assuming to himself the interpretation of the written agreement, the learned trial judge held it to be for six months. But, upon the face of the instrument, the construction is incorrect. Substituting for “extend” the word “exceed,” as probably intended by the parties, Lapeer Ins. Co. v. Doyle, 30 Mich., 159; Morrell v. Frith, 3 M. & W., 402, the term of plaintiff’s service was indefinite, and so terminable at pleasure. Authorities supra.

The case, however, is not so bad for the plaintiff as the position of the trial judge would imply; namety, that the court should construe the contract, and without the aid of extraneous evidence.

If the intention of the parties to a written contract be intelligible upon the face of the instrument, extrinsic proof of its meaning is inadmissible ; and its construction is for the court alone. Norton v. Woodruff, 2 N. Y., 153, 156; Glacius v. Black, 67 id., 563, 567. But if 'its terms be so obscure or ambiguous as not to be understood without the aid of adventitious light, then evidence, not only of the surrounding circumstances, but of the acts and conversations of the parties, is competent to illustrate their intention; and upon such evidence the meaning of the instrument is for determination by the jury. Brady v. Cassidy, 104 N. Y., 147, 155; 5 St. Rep., 569; Tatterson v. Suffolk Mfg. Co., 106 Mass., 56, 59; Almgren v. Dutilh, 5 N. Y., 28; Goodrich v. Stevens, 5 Lans., 230; Walrath v. Thompson, 4 Hill, 200; Thorington v. Smith, 8 Wall., 1; First Nat. Bank v. Dana, 79 N. Y., 108; Fagin v. Connoly, 69 Am. Dec., 456, note; Keller v. Webb, 28 Am., 210, note; Browne on Parol Evidence, 190 et sequ.

Upon the face of the agreement between the parties to this action, it is uncertain for what period the service was to continue, and on what “ steamer ” the plaintiff was to be employed. Wherefore, parol evidence of the circumstances of the transaction and of the conversations of the parties was admissible in elucidation of the obscurities and ambiguities apparent on the face of the paper; and upon such proof the meaning of the contract was for solution by the jury.

It follows that the j udgment must be reversed, and a new trial ordered, with costs to abide the event.

Bookstaver and Bischoee, JJ., concur.


author: Sedgwick, Ch. J. Freedman, J.

text:
    Henry Steers et al., App'lts, v. James H. Laird, Resp't.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Vendor and purchaser—Damages for breach of contract—Broker’s commissions.
    In an action for breach of contract for the sale of land the vendor cannot recovei- the commissions paid by him to the broker. Such payment of commission is a disbursement of his business, and is solely personal to the vendor and not within or touching the contract relations of the parties.
    Appeal from judgment dismissing complaint, entered upon order, at trial term.

      John Frankenheimer, for app'lts; James P. Campbell, for resp't.
   Sedgwick, Ch. J.

The action was brought to recover the sum of $395 and interest from January 27, 1891, as damages for the failure of the defendant to complete his contract for the purchase of premises Ho. 309 West Forty-third street, New York, sold to him by plaintiffs.

The plaintiffs were the owners of the house and engaged a broker to sell the same for them, and agreed to pay him in the event of his procuring a buyer the usual brokerage of one per cent, and this was well known to the defendant before the agreement afterwards made was entered into. An informal agreement was made that was to be followed on a day fixed in the informal agreement by the making of a formal contract At the time and place agreed upon the plaintiffs attended, ready and willing, etc., but the defendant “ failed to attend and refused to take the property or perform the agreement on his part; that the plaintiffs have always been willing to perform on their part.” The complaint alleges that upon the making of the contract the brokerage in the amount of $395 became due from the plaintiffs, and the plaintiffs were obliged to and necessarily did pay the broker. The complaint charges that through the wrongful failure of the defendant to perform said agreement on his part the plaintiffs have been damaged in the amount so paid to the broker, $395.

I do not see in this commission any matter which is attached to the contract, or anything more than the plaintiffs’ disbursements in their business, which they use to be successful. They spent the money to secure a profitable contract. Their want of profit would change the principal, yet, as matter of fact, the performance of the contract is desired by them.

The plaintiffs claim that the commission became a part of the damages from the defendant’s not performing the contract. In general I do not see a connection between the paying of the commission and the breach of the contract of any other kind than would exist between the latter and the expenditure of any money or effort to procure the contract. As soon as the contract is made the plaintiffs become possessed of the thing out of which they expect to reimburse themselves for their expenditures and to make their profits. They do not expect in fact to be losers, and if it occur they cannot expect to have their losses made good that came from voluntarily paying money for their own benefit in the shape of a commission, which had nothing to do .with the obligations of the contract, and from which the defendant received nothing. It is not correct to consider that the plaintiffs, in a legal sense, have lost the value of the contract as it was. Their contract has the value of an action for damages and for specific performance. It is not to be said that they thought they would get the land without difficulty. They knew that all they got was a contract.

I am of opinion that the plaintiffs’ payment of the commission was a disbursement of their business, and that it was used to procure a contract, of which they are and have been in full possession; that the payment was solely personal to the plaintiffs and not within and not touching the contract relations of the parties. It could not have been claimed if the contract had been performed, and the non-performance does not give a right to it. For this reason I think the judgment should be affirmed.

I regret that I am not able to follow the case of Hennig v. Punnett, 4 Daly, 543.

I do not express an opinion as to whether the arrangement that was made was void by the statute of frauds.

Judgment affirmed, with costs.

McAdam, J., concurs.

Freedman, J.

I concur in the conclusions reached by the learned chief judge, but desire to add that if it were necessary to go further I should hold that, upon the facts as they appear, the commission paid was not earned by the broker, for the reason that the broker never procured such a complete meeting of the minds of both vendors and vendee, evidenced by a contract enforceable against the vendee, as he was bound to procure within the principle of the decision rendered in Bennett v. Egan et al., during the present term of the court, ante, 437.

Judgment affirmed, with costs.


author: McAdam, J.

text:
    Clara J. Butler, Resp't, v. The Manhattan Railway Co., App'lt.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    1. Negligence—Damages.
    Where the plaintiff was injured by being negligently struck by the iron gate of an elevated car, which was followed by a miscarriage, a verdict for $5,000 is not excessive.
    2. Same—Evidence—Physicians.
    A party by bringing an action for negligence and putting his physical condition on trial does not waive the privilege of the statute, and render admissible the testimony of physicians who had attended him prior to the accident, but who did not know his physical condition at that time or subsequently.
    3. Same.
    The fact that plaintiff’s prior condition was brought out on cross-examination does not authorize such testimony, as the privilege can only be waived by consent of the patient or some act tantamount thereto, and no> act of defendant can effect such result against the plaintiff’s will.
    4. Same.
    A question to an expert as to the probability of the permanency of the injuries may be based either on an acquaintance with the plaintiff, on a medical examination which he has made, or upon a hypothetical case submitted, based on testimony already in the case.
    Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff, and from order denying motion for a new trial.

      Davies & Rapallo, for app’lt; Gilbert D. Lamb, for resp’t.
   McAdam, J.

The action is to recover damages for personal injuries to the plaintiff.

On October 9, 1889, the plaintiff, a married woman, purchased a ticket for herself and son for transit on defendant’s road. As she was going upon the rear platform of the car, to enter the same, an iron gate was forcibly swung to by defendant’s brakeman, striking her a severe blow on the right side, which was immediately followed by bearing down pains, and ultimately by a miscarriage. The evidence clearly established the defendant’s liability for the wrong, and the jury awarded the plaintiff a verdict for $5,000, which, in view of the consequences of the injuries, is not, in our judgment, excessive. The exceptions taken during the trial have been strenuously urged as reasons why the judgment entered on the verdict should be set aside, and chief among these is the exception taken to the ruling of the court excluding the evidence of Doctors Bird and Burridge, who professionally attended the plaintiff some months prior to the accident, and knew of her physical condition before she met the injury of which she now complains.

The evidence was offered by the defendant, and excluded under the objection of the plaintiff that the questions propounded called for the disclosure of information acquired by the witnesses while attending the patient in a professional capacity, and were consequently contrary to the provisions of § 884 of the Code.

The defendant claims that by bringing the action and putting her physical condition on trial she waived the privilege of the statute, and the testimony thereby became admissible. A number of authorities have been cited in support of this view, but a careful examination of the cases demonstrates their inapplicability. In Treanor v. Manhattan Railway Co., 28 Abb. N. C., 47; 41 St. Rep., 614, the action was for an injury to the plaintiff’s head. The plaintiff testified to the nature and extent of the damage. The defendant thereafter called the physician who attended the plaintiff for the injury complained of, and when interrogated as to the condition in which he found the plaintiff’s head, the evidence was excluded as privileged, and for such exclusion the judgment was reversed. The testimony excluded might have contradicted the plaintiff as to the very injury about which she had testified in her direct examination, was material and relevant to the issue, and on that ground admissible.

So, in Marx v. Manhattan Railway Co., 56 Hun, 575; 31 St. Rep., 914, it was held, that if a party testify to a confidential interview with his physician, his adversary may call the physician to contradict the story of the patient. The court in that case placed its decision upon the ground that “ the evidence offered related to the same interview as to which the plaintiff had testified, and to the occurrence of which he had pretended to give an account,” and “ having himself gone into the privileged domain to get evidence upon his own behalf, he cannot prevent the defendant from assailing such evidence by the only testimony available for that purpose.”

These authorities have no application here, for in those cases the plaintiff by his own act opened the door for the admission of the testimony offered, and in that manner effectually waived the privilege of the statute. In the present instance, the plaintiff had not on her direct examination testified to any fact which made 1 he testimony of Doctors Bird or Burridge relevant or material to the issues on trial.

They had attended the plaintiff prior to the accident complained of at the trial, had no knowledge of her physical condition at that time or subsequently. Upon cross-examination, however, the defendant entered upon a lengthy investigation as to the pi’ior history of the plaintiff, the ailments with which she had been troubled, the names of the phys:cians she had consulted, and ' the troubles for which they prescribed, and upon this cross-examination the defendant bases the entire theory of waiver which it now urges. There was clearly no waiver; the privilege belonged to the patient, could be waived only by her consent or by some act of her’s tantamount thereto. No act of the defendant could effect any such result against the plaintiff's will. The privilege is founded on public policy, and in all cases where it applies the seal of the law must forever remain until it is removed by the act <n- consent of the patient. Cases collated in Westover v. Ins. Co., 99 N. Y., 58. In Hope v. R. R. Co., 40 Hun, 438, it was held, that a patient calling his physician to testify does not thereby waive his right to object to other physicians, who may have treated him. testifying upon the same subject. See, also, Record v. Village, 46 Hun, 448; 12 St. Rep., 395; Mellor v. R. R. Co., 105 Mo., 455; S. C., 16 Southwest Rep., 850.

The ailments for which Doctors Bird and Burridge treated the plaintiff were not of an obvious nature, such as injuries to the leg or skull, but were of an occult character which could be ascertained and treated only by reason of the highest confidence possible to bestow upon professional men, and it would have been a gross breach of privilege to have allowed them to break the seal of secrecy by testifying to any such matters.

In Sloan v. R. R. Co., 45 N.Y., 125, the plaintiff, a female, sued to recover damages for injuries received, and recovered a verdict for $12,000. The defendant at the trial asked Dr. Bice whether the plaintiff had venereal disease while under his care as a physician. The court held that evidence was properly excluded at the trial and affirmed the judgment recovered below.

In People v. Murphy, 101 N. Y., 126, it was held that a physician who attended a female after an abortion had been produced was incompetent under the statute to testify as a medical expert that the crime had been committed. Indeed, the courts have invariably held to the doctrine that the protection from disclosure of information acquired in the confidential capacity of physician must be enforced unless the patient either expressly or by some affirmative act of his waives the benefit of the rule.

If the defendant’s purpose in calling Doctors Bird and Burridge as witnesses was not to contradict the facts brought out by it on cross-examination of the plaintiff, then the materiality of the proposed evidence was not obvious and the defendant ought to have indicated to the court in some form why their testimony should be admitted. Trustees v. Ins. Co., 23 How. Pr., 450.

The exceptions taken to the hypothetical questions put to the medical experts whose testimony was received are without merit. The form of the questions are similar to those contained in Filer v. R. R. Co., 49 N. Y., 42, and Brown v. R. R. Co., 32 id., 598; see, also, Keane v. Village, 130 id., 188; 41 St. Rep., 291. The evidence showed that the results anticipated by the experts were reasonably sure to follow from the injury complained of, and this is all the law requires to make the testimony competent Strohm v. R. R. Co., 96 N. Y., 306; Turner v. City, 109 id., 301; 15 St. Rep., 93; Griswold v. R. R. Co., 115 N. Y., 61; 23 St. Rep., 729. Such questions to experts may be based either on an acquaintance with the party whose condition is under investigation, upon a medical examination of him which he has made, or upon a hypothetical case submitted to the witness based on testimony already in the case. See cases collated in Lawson on Expert Ev., 144. These rules were in no instance violated, and the questions put and answers received conform to all legal requirements. The case was carefully tried and submitted to the jury. The exceptions to the charge and the refusals to charge are without merit It follows that the judgment and order appealed from must be affirmed, with costs.

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


text:
    Adolphus E. Kinnear, App'lt, v. Robert S. Powell et al., Resp'ts.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Charter party—Ship brokers.
    Defendants, who were ship brokers, cabled to the owner of a vessel an offer by which the rate to Bombay was fixed at 35, “ sufficient cargo ballasting Calcutta 31 half,” with "the option Bombay-Oalcutta direct or combined,” which was accepted. Defendants then made a charter piarty for a cargo of 90,000 cases to Bombay and Calcutta, or to Bombay or Calcutta direct, which provided that in case two ports were used sufficient cargo should be left on board for ballast from Bombay to Calcutta, rate to be 25 at former port, not less than 25,000 to be landed at said port, and 21 half on balance landed at Calcutta. The charterer discharged 25,000 at Bombay and the balance at Calcutta. Held, that under all the circumstances the contract would bear the construction that at least sufficient cargo should be left to constitute ballast, and that the charter party as made was authorized by the correspondence.
    Appeal by the plaintiff from a judgment entered on the dismissal of his complaint at trial term.

      Geo. A. Black, for app'lt; Wilcox, Adams & Green, for resp't.
   McAdam, J.

The plaintiff, the owner of the ship “Lancing,” does business in London, England, and the defendants are ship brokers in the city of Mew York.

There was some preliminary correspondence between the parties indicating an intention on the part of the owner to send the ship to Mew York to get an oil cargo for the East, with a preference for Calcutta. The defendants, as ship brokers, were expected to make the charter on behalf of the owner. Various cablegrams and letters passed between the parties, culminating in an offer, which the plaintiff accepted, by which the rate to Bombay was fixed at 25, “sufficient cargo ballasting Calcutta 21 half,” with “the option Bombay—Calcutta direct or combined.” On June 12th, the defendants negotiated a charter of the vessel for a voyage from Mew York to Bombay and Calcutta, or' to Bombay or Calcutta direct, at charterers’ option, as ordered upon signing bills of lading, to carry a cargo of 90,000 cases, ten per cent more or less.

The charter provided: “ In case two ports are used in discharging, charterers agree to leave sufficient cargo on board for ballast from Bombay to Calcutta, the rate of freight is to be twenty-five cents per case on all cases landed at the former port; not less than 25,000 cases to be landed, and twenty-one and a half on balance cargo landed at Calcutta; if discharged in Bombay only, twenty-five cents; if discharged in Calcutta only, twenty-one cents.” The total freight earned was $28,125.30. The ship proceeded to Bombay, where the 25,000 cases were discharged, and it thereafter sailed for Calcutta, where the balance of the cargo was unloaded. The question to be determined is whether the charter as made conforms to the authority given to the defendants, and this depends upon the meaning of the terms used in the defendants’ cablegram: “Bombay 25, sufficient cargo ballasting, Calcutta 21, half.” It is undisputed -that 25,000 cases were a sufficient ballast for a voyage from Bombay to Calcutta, and the plaintiff claims that the language employed by the defendants conveyed to him the understanding that all the cargo was to be discharged in Bombay at twenty-five cents, except the 25,000 cases required for ballast, which were to go to Calcutta at twenty-one and a half cents, and that in consequence of the charter not so providing he has sustained damage to the amount of $2,655.?! If the phrase in dispute had been used in letters of instruction from the plaintiff to the defendants, no liability would have attached to the latter on account of the ambiguity of the words used, for where language is ambiguous, and the agent bona fide adopts a permissible construction, the principal cannot, on the ground that such construction was not intended by him, disown and dishonor the act of the agent. Ireland v. Livingston, L. R., 2 Q. B., 99; 5 id., 516; L. R., 5 Eng. & Irish App., 395; Wharton on Agents, §§ 224, 248 ; Benj. on Sales, Perkins ed., § 590. The plaintiff contends that because the ambiguous language wen used by the agent the converse of the rule is applicable, and the phrase is to be interpreted in the sense most beneficial to the plaintiff. Wright v. Williams, 20 Hun, 322; Jones on Const, of Com. Cont., § 228.

The trial-judge held that the cablegram by defendants to plaintiff, “ sufficient cargo ballasting Calcutta,” meant that there would be at least sufficient cargo left at Bombay to constitute ballast for Calcutta, so that the plaintiff would be under no expense to buy ballast. The cablegram also admits of the technical construction applied to it by the plaintiff, that “ sufficient cargo ballasting Calcutta” means enough, adequate to wants, or equal to the end proposed ; not more than required for the trip to Calcutta.

Which construction is to control ? The answer to this query naturally suggests another. Suppose the literal words of tho cablegram had been inserted in the charter, what construction would then be placed upon them, for if the charterers would not in that event have been held to the construction urged against the ship brokers, it is clear the latter are not liable in this action. The rule requiring instruments to be construed “ contra proferentem ” is not always of special value, and is most applicable to cleedspoll. In cases of mutual promises, where neither party is more the undertaker than the other, the rule has no application. 2 Parsons on Cont., 6th ed., 505 to 510.

Testing the liability of the defendants by this rule, considering the situation and relation of the parties at the time, the subject matter of the contract, the option and discretion asked for, and not refused, the combination of the two ports expressly permitted, the absence of controlling expert evidence proving the meaning among shippers of the technical terms used in the cablegram, we are of opinion that the contract legally bears the construction put upon it by the trial judge, and that such construction must, •for the purposes of this case, be adopted as the one controlling. True, the plaintiff as an expert gave his opinion as to the meaning of the technical terms used, and this sustains his construction thereof, but the plaintiff did not ask to go to the jury on that question, but requested the direction of a verdict in his favor.

The defendant, on the other hand, insisted upon the dismissal of the complaint. It is evident, therefore, that both parties treated the question involved as one of law for the court, and not of fact for the jury. The plaintiff was interested in the result, and his evidence' not controlling, Elwood v. Tel. Co., 45 N. Y., 549; Kavanagh v. Wilson, 70 id., 177; Honegger v. Weltstein, 94 id., 252; Canajoharie Nat. Bank v. Diefendorf, 123 id., 191; 33 St. Rep., 389, so that the trial court had the right to dispose of all there was to the contention. Reck v. Ins. Co., 130 N. Y., 160; 41 St. Rep., 250; Page v. Voorhies, 40 id., 696; Reilly v. Lee, 41 id., 559.

The defendants are not charged with breach of instructions nor of fraudulent conduct. All that is claimed against them is that the charter they entered into was not, for the reasons before stated, authorized by the cablegrams and correspondence which passed between the parties, and that they are, in consequence, liable for the damages claimed.

The fact that the ‘‘ Lancing ” was a water ballast ship was unknown to the defendants until after the plaintiff’s letter dated June 14th, received long after the charter was made, so that this feature has no bearing whatever upon the rights of the parties, in no manner affects the liability sought to be enforced, and throws no light upon the transaction. Though the question involved is close, and the conclusion reached not free from doubt, we think that substantial justice has been done, and that the judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., concurs.


author: Per Curiam.

text:
    Ferdinand T. Hopkins, Ex'r, Resp't, v. Claude L. Gouraud et al., Impl'd, App'lts.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    1, Will—Direction as to payment of mortgage.
    Testatrix, by her will, directed that any mortgage on her Forty-sixth street premises should be paid out of the proceeds of a mortgage hold by her on East Broadway property. The East Broadway mortgage was paid to testatrix before her death, and with the proceeds she paid'one of the mortgages on the Forty-sixth street property, and a part of the balance was used in buying certain bonds. Held, that the proceeds of such bonds should be applied to the payment of the lemaining mortgage.
    8. Same—Trust—Assignment by beneficiary of his interest invalid.
    Certain property was, given to the executor in trust during the life of one son, to pay the net income to two sons, Claude and Manfred, with directions as to its ultimate disposal. Held, that the interest of Claude in the rents and profits was unassignable.
    Appeal by two of the defendants from a judgment of the special term in an action to construe the will of the testatrix, and for instructions to plaintiff as executor and trustee. _
    _ The complaint presented two questions for determination of the court.:

      First. In regard to the payment of a mortgage on the property No. 151 East Forty-sixth street, of which testatrix died seized.

      Second. As to his duty in regard to paying over the income received under a trust as to the property No. 207 Division street, which testatrix devised to plaintiff upon certain trusts.
    The facts, briefly stated, are as follows : At the time of making the will the testatrix was the owner of the premises Ho. 151 Bast Forty-sixth street, which were subject to two mortgages for $10,000 and $3,500 respectively, which had been a lien on the property when she purchased it, and were then long overdue. She was then also the owner of a mortgage for $14,500 upon premises Ho. 246 Bast Broadway. Her will provided as follows :
    “ Sixteenth. I order and direct that any mortgage that may be upon the premises known as number one hundred and fifty-one Bast Forty-sixth street in the city of New York be paid by my said executor out of the proceeds of the mortgage held by me on the premises known as number two hundred and sixty-four Bast Broadway in said city of New York.”
    Shortly after the making of the will, and in August, 1889, the owner of the East Broadway property paid off the mortgage of $14,500 and received a satisfaction thereof. Of the money so received the testatrix applied $3,500 to the payment of the second mortgage on the Forty-sixth street house, but did not pay off the first mortgage, although the same was then long overdue. On the contrary, she invested about $9,700 of the moneys received in bonds of the par value of $10,000 of the Louisville Southern Railroad Company, which were subsequently exchanged by her for other similar bonds issued in the process of reorganization of that company, and these latter she continued to own until the time of her death, and they are still in the hands of plaintiff as her executor.
    As to the Division street property, the fifteenth'paragraph of the will devised that property to the executor in trust to collect and receive the profits thereof, and after paying expenses, to pay the residue of the rents and profits unto the defendants, Manfred and Claude Gouraud, during their natural lives, with provision for the ultimate disposition of the trust property upon the death of Manfred. The defendant, Manfred, has received from his-brother, Claude, a deed purporting to convey the latter’s interest in that property, and the question presented is whether such conveyance was effectual to pass his interest so that the trustee will be protected in paying to Manfred the one-half of the income devised to Claude, or whether the interest of Claude in the rents and profits was not assignable under the provisions of the Revised Statutes, and his attempted assignment consequently void.
    The following is the opinion at special term:
    Dugro, J.—The direction in the 16th subdivision of the will is in the nature of a specific legacy, and would come within the rule as to ademption of legacies. If the proceeds of the mortgage exist in any distinct form, so as to have a separate entity, or if a part of the proceeds so exists, the direction does not fail of force, for such proceeds or part must be applied as directed. In the case presented, I think the proceeds of the Louisville Southern R R Co. bonds should be applied to a reduction of the mortgage. The bonds are traceable to the immediate proceeds of the Bast Broadway mortgage, and are themselves proceeds of the mortgage within the term as used in the will." The interest of Claude L. Grouraud in and to the rents and profits of 207 Division street seem to me unassignable.

      Goldsmith & Doherty, for app’lt, C. L. Grouraud; Thomas Id. Cook (Joseph Fettretch, of counsel), for app’lt, F. T. Hopkins, Jr.; James McGregor Smith, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion rendered by the learned judge below.

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


text:
    Frey C. Leeson, App'lt, v. The Massachusetts Benefit Association, Resp't.

      (New York Superior Court, General Term,

      Filed May 1, 1893.).

    Accord and satisfaction—Insurance (life).
    Defendant refused to pay- a death loss, claiming to have positive evidence that the insured had understated his age, which evidence consisted of a record of enlistment in the army, hut offered to pay a lesser sum, which plaintiff accepted, and for which she executed a release. Held, that there was a disputed liability, and that the payment and acceptance of the money constituted a good accord and satisfaction.
    Appeal from judgment dismissing complaint, entered upon findings and conclusions.
    “ The following is the opinion of the court below :
    McAdam, J.—The defendant issued a $5,000 policy on the life of plaintiff’s husband, who died subsequently. It was in favor of the plaintiff, and payable to her. The defendant refused to adjust the demand, putting its refusal on the ground that the plaintiff’s husband had understated his age, and had thereby defrauded the defendant in respect to the risk and amount cf premium charged. The officers of the defendant told the plaintiff that-they had positive evidence as to the true age, and offered her $4,000 by way of compromise. She accepted the money and executed a release under seal. The present suit is an effort to set aside the release and recover the remaining $1,000, on the ground that the representation that the defendant had “ positive ” proof as to the husband’s age was untrue, as the only thing resembling evidence the defendant had was a record of enlistment in the army, which was not competent to establish the disputed fact. The subject of age was one about which the defendant could have no knowledge superior to that possessed by the plaintiff, and no one can furnish “ positive ” proof of the time of birth except persons present at the occasion, and no one assumed that the defendant had such witnesses. The fact that the defendant overrated the degree or value of the army enlistment record as evidence of the age does not rise to the dignity of fraud adequate to set aside the release. It probably created a doubt which might have led to better proof. It is sufficient, however, as matter of defense, that there was a “ disputed ” liability, which the parties adjusted at $4,000. The payment and acceptance of the money constituted a good accord and satisfaction without any writing. 2 Duer, 802; 96 K. Y, 640.
    And even if the plaintiff had received it under protest, it would not have destroyed this effect. 24 Hun, 78. That the liability was disputed and compromised is recited in the release itself, and this controlling circumstance appears prominently all through the case. The plaintiff has failed to establish any claim to equitable relief, and the complaint must be dismissed.

      A. H. Ammidown, for app’lt; J. K. Hayward, for resp’t.
   Per Curiam.

Judgment affirmed, with costs, upon opinion at special term.

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


author: Freedman, J.

text:
    William P. Roome et al., App'lts, v. Frederick C. Jennings et al., Resp'ts.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    1. Pleading—Factors—Breach of duty.
    The complaint alleged that defendants, who were employed to sell goods for plaiutiffs, fraudulently represented that they had a purchaser, whose name they did not disclose, and that they were not principals ; that upon inquiry being made for the purpose of delivery, defendants stated that they were the purchasers, and demanded' the goods, which plaintiffs refused to deliver and rescinded the contract; that the price of the goods had declined to plaintiffs’ damage. Held, that the complaint did not stale a cause of action for fraud and deceit, as the damage was not caused by the fraud which induced the making of the contract, but from plaintiffs’ rescission thereof; that they had but a technical cause of action for defendants’ breach of duty, and were entitled to nominal damages only.
    3. Same—Demurrer—Award of damages.
    Upon overruling a demurrer to the complaint, where the damages on the facts stated in the complaint are, as matter of law, merely nominal, the court may proceed to award the damages at once.
    Appeal by plaintiffs from judgment awarding to them the sum of six cents damages, with costs to the defendants.
    The complaint, after alleging the copartnership of the plaintiffs and defendants, set out that, on February 2, 1891, the plaintiffs were the owners of 3,876 half chests of Congo teas, and that on that day, the defendants, who were employed to sell the teas, “for the purpose of getting control and possession of the same, falsely and fraudulently represented and stated to the plaintiffs that they had obtained a purchaser therefor, whose name they did not disclose,” and that they, the defendants, were not interested as principals, meaning thereby as purchasers, in the purchase of said teas, nor in any other manner than as brokers. That the statement was false, and was known to be false by the defendants, and that the plaintiffs relied upon the statement and made an executory contract to sell the teas to “ Mr. Cash ” at 13£ cents per pound. A copy of the contract is attached to the complaint. The complaint further alleges that, on February 17, 1891, the plaintiffs, being ready to deliver the teas, requested of the defendants the names of the purchasers, and that the defendants thereupon notified the plaintiffs that they were the purchasers, and the complaint then proceeds as follows: “ That the plaintiffs, immediately upon learning that the defendants were interested as purchasers in the said contract for the sale of said teas, and that they had not procured a purchaser for the same, and that they had not been duly authorized by any person to enter into said contract for the purchase thereof from the plaintiffs, and to execute said bought and sold notes thereof, refused to be bound by said contract, and rescinded the same, and refused to deliver the said teas to the said defendants.”
    The complaint further alleges that, on the 2d day of February, 1891, the teas were worth 13j- cents per pound on the market, and that thereafter the market value of said teas declined, and the said teas depreciated greatly in value, “and that by reason oí all the premises the plaintiffs have sustained damages in the sum of $7,500.
    To this complaint the defendants interposed a demurrer, upon the ground that it did not state facts sufficient to constitute a cause of action.
    This demurrer the court overruled and ordered final judgment for the plaintiff for six cents damages, and awarded costs to the defendants; upon which decision judgment was entered for the defendants for the balance of the costs, after deducting the six cents damages.

      F. A. Thomson (Jas. J. Allen, of counsel), for app'lts; Jas. L. Bishop, for resp'ts.
   Freedman, J.

The complaidoes not state a cause of action for fraud or deceit, for fraud or deceit without damage is not actionable. The damages sought to be recovered are shown to have resulted, not from the fraud or deceit by means of which the plaintiffs were induced to enter into the executory contract of sale, but from their refusal to carry out the said contract and their rescission of it They were justified in such refusal and rescission. It appears, however, that if they had not so refused and rescinded no damage would have been sustained, for the fall in the market price had then already taken place, and the defendants were ready and willing, and presumably able to pay the contract price. The plaintiffs, by thus making an election which they had an undoubted right to make, brought about their own loss. The learned judge below was, therefore, correct in holding that, upon the facts set out in the complaint, the plaintiffs have but a technical cause of action, which is for the breach of the duty that the defendants, as brokers, owed to the plaintiffs, and that in this action, as it is set forth, the plaintiffs are entitled to nominal damages only.

The demurrer to the complaint having been overruled, and the damages on the facts stated in the complaint being, as matter of law, nominal, the court could proceed at once to award the damages, and the defendants’ right to costs in such a case being statutory under § 3229 of the Code, the judgment was properly entered under §§ 1021 and 1222 of the Code. If the plaintiffs can show a different state of facts and desire so to do, their remedy is by motion for leave to amend their complaint.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., concurs.


text:
    Peter De Lacy, Resp't, v. Albert J. Adams, App'lt.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Injunction—Pendente lite—Action to bestbain unlawful use of premises.
    An action by a landlord to restrain the tenant from an alleged unlawful use of the premises, where the complaint does not allege damage to plaintiff, and the alleged unlawful use consists of receiving and forwarding money to be wagered on horse races and the payment to the depositor of such money as he is entitled to upon the result of each race, the question involving the constitutionality of chap. 479, Laws 1887, is one where the court should not interfere by injunction in advance of the trial.
    Appeal from an order made at special term granting plaintiff an injunction during the pendency of the action.

      Joel M. Marx, for app’lt; Howe & Hummel, for resp't; John M. Bowers, for Coney Island Jockey Club et al.

   Freedman, J.

Thea action is brought by plaintiff to restrain the defendant, as tenant under a lease from the plaintiff, from carrying on a certain business at the demised premises, Mo. 43 West Twenty-ninth street in the city of Mew York. In the complaint and in his accompanying affidavit the plaintiff avers that the lease runs from August 1, 1892, until May 1, 1895. The lease itself shows that it expires May 1, 1894. It is neither recorded nor acknowledged, and it contains no restriction whatever against the carrying on of any kind of business upon the demised premises. The business sought to be restrained is -alleged to be that of receiving money, and making, registering and recording bets or wagers upon horse races run at certain race tracks within the state of Mew York and elsewhere. There is no allegation in the complaint that the carrying on of the business complained of is injurious to the plaintiff or to the demised premises, and for all that appears the plaintiff may have been greatly benefited. So there being no covenant whatever in the lease restricting the use to be made of the premises, the plaintiff simply avers “ that at the time of the letting of said premises the said defendant agreed not to use the same for any business in violation of law,” and “ that the said business so conducted at the said premises is in violation of § 351 of the Penal Code of this state.”

Mow the defendant might have insisted that under well settled rules of law the plaintiff as landlord could not engraft upon the written lease an outside agreement, which, if it was made, may have been by parol, and, independently of that, he might have insisted that the complaint does not state facts sufficient to constitute a cause of action for equitable relief by injunction, in the first place for want of an allegation of damage, and in the second place because upon plaintiff’s own theory the plaintiff has a remedy at law and especially under the criminal law of the state

The defendant, however, urges none of these considerations. On the contrary, he expressly admits that there was an outside agreement that the premises should not he used for any business in violation of law; and while he denies that he carried on, or carries on, an illegal business as averred in the complaint, he admits that during the racing season, as authorized by chapter 479 of the Laws of 1887, he conducted at the said premises the business of receiving money sought to be staked upon the result of the races according to certain schemes circumstantially described in the answer; that for a commission he agreed with the persons so depositing such money to transfer the same to the race tracks, there to he bet and wagered according to the scheme or schemes, selected; and that upon the result of each race bet or wagered upon, he paid to each person who had deposited money with him as aforesaid such sum of money as such person was entitled to-upon the result of the race according to the scheme selected. The defendant finally alleges that he intends to continue to carry on the said business, and that such business is a legal one.

Upon the record thus made by the pleadings and accompanying affidavits, this court has been called upon to determine the legality or illegality of the said business on a mere motion. A full and complete determination of this question involves the constitutionality of chapter 479 of the Laws of 1887, which provides that the Code provisions shall not apply to the grounds of incorporated racing associations during a certain time in each year, and which, according to defendant’s claim, justifies his business. The decisions of Brennan v. Brighton Beach Racing Association, 30 St. Rep., 406, and of People v. Wynn, 35 id., 487; affirmed, 128 N. Y., 599; 38 St. Rep., 1012, favor the contention of the defendant, provided he does, as he claims,'strictly a commission business ; but in neither case was the constitutional question passed upon. That question as now presented is a nice and complicated one, and a court of equity should not assume jurisdiction to determine it upon a mere motion, unless fully satisfied that all the necessary facts are before the court, and that the controversy between the parties is a real one, and of such a character as to-necessitate the interposition of the equitable powers of the court.

Owing to the insufficiency of the complaint, as already pointed out, the case does not call for the interposition of the equitable powers of the court. The accompanying affidavits cannot, and do not, enlarge the cause of action pleaded.

But independently of that consideration the record as a whole does not fully and fairly present all the facts which the court should be put in possession of, and a little reading between the lines suggests a doubt whether the controversy between the parties is of such a character that a court of equity should take cognizance of it. To be entitled to any relief the plaintiff must satisfy the court that the controversy is a real one and that he comes into court with clean hands. All these matters can be more satisfactorily ■ ascertained and determined at the trial of the issues, where the parties may be orally examined and cross-examined. Such trial may be had in a very short time if the parties desire it.

For the present it is sufficient to say that in every aspect which can be properly taken, the case at bar is one in which the court will not interfere by injunction in advance of the trial.

For the reason stated the order should be reversed, with ten dollars costs and disbursements, and plaintiff’s motion for an injunction during the pendency of the action should be denied, with ten dollars costs.

Sedgwick, Oh. J., concurs.


text:
    Charles S. Hine, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Railboad—Elevated—Stipulations.
    On obtaining a stay pending an appeal the defendants stipulated that they would not institute condemnation proceedings, and that if plaintiff would deliver to the clerk of the court a deed of the easements they would not file or serve any supplemental answer, or any answer embracing any supplemental matter, or prove or offer to prove upon any future trial or proceeding any transfer of interest of plaintiff, and that if plaintiff should convey the premises or any part thereof, the purchaser might be joined with or substituted for the plaintiff. The original order requiring a stipulation contained the words “ pending said appeal,” but said words were stricken out on re-settlement. Held, that the stipulation could not be construed as binding only during the pendency of the appeal, and that plaintiff having complied on his part and conveyed in reliance on said stipulation, and defendants having waited until a year after reversal to move, it would be inequitable to relieve them and they should be held to the stipulation.-
    ' Appeal from an order denying defendants’ motion to be relieved from certain stipulations.

      Davies & Rapallo (Edward C. James and A. S. Lyman, of counsel), for app’lts; William H. Arnoux, for resp’t.
   Freedman, J.

This action was brought to restrain the operation and maintenance of defendants’ elevated railroad in front of plaintiff’s premises and for past damages. The appeal is from an order denying defendants’ motion to vacate certain portions of orders' made in this action granting to defendants a stay during the pendency of their appeals, and to relieve defendants from certain stipulations made in pursuance of the said orders.

In the Matter of the Metropolitan Elevated Railway Co., reported in the N. Y. Law Journal of February 1, 1893; 49 St Rep., 648, a stipulation given by the defendants in compliance with the terms of an order staying the operation of the injunction awarded by the judgment during an appeal to be taken, whereby they bound themselves not to institute or prosecute condemnation proceedings pending the stay granted and to contest the plaintiff’s rights only in the said action, was construed by the court of appeals as binding upon the defendants only during the pendency of the stay. The court simply construed the stipulation and, in doing so, held that the phrase “ pending the stay granted by the order ” was to be applied to the whole agreement.

In the present case the stipulation exacted and given, not to institute or prosecute condemnation proceedings, cannot be so construed, because the words “ pending said appeal," (meaning the appeal to the court of appeals) were stricken from the order on a re-settlement thereof, and the stipulation was given in conformity with the order as re-settled.

On obtaining a stay during their appeal to the general term, the defendants stipulated, in obedience to an order made for that purpose, among other things as follows, viz :

2. That if the plaintiff would deliver to the clerk of the court his deed in escrow of the easements of light, air and access, the defendants would not file or serve, or apply for leave to file or serve, any supplemental answer, or any answer embracing any supplemental matter, or prove, or offer to prove, upon any future trial in the action, or upon any proceeding to enforce judgment thereon, any transfer of interest of the plaintiff to the premises.

3. That if the plaintiff should convey the premises or any pai t thereof, the purchaser might be joined with or substituted for the plaintiff, with the like force and effect as if he had originally been plaintiff in the action.

This stipulation cannot be construed as binding upon the defendants during the pendency of the stay only, for it covered matters relating to a possible future trial which could only be had after a determination of the appeal in defendants’ favor. The stipulation was exacted because in answer to defendants’ motion for a stay the plaintiff set up that he desired to convey the premises to one Stemme. Upon the stipulation having been given, the plaintiff did convey to Mr. Stemme, and the plaintiff and Mr. Stemme thereupon joined in the execution of a deed to the defendants which was delivered in escrow to the clerk of this court May 14, 1890, and is still so held by him.

The court having had the power to exact these stipulations, it was the duty of the defendants, if they felt aggrieved by the orders exacting them, to appeal from the said orders or to promptly move to set them aside. They took no such steps, but took the benefit which accrued to them from a compliance with the orders. The judgment entered in February, 1890, was finally reversed by the court of appeals, second division, upon a single question of evidence, and the order on the remittitur was entered May 6,1892. The cause was then placed on the calendar for a new trial, and it was not until March 30, 1893, that the defendants moved to be relieved from these stipulations in order to be enabled to institute condemnation proceedings.

Upon all the facts as they appear and the principle of the decisions of Townsend v. Masterson Co., 15 N. Y., 587; People v. Stephens, 52 id., 306; Matter of N. Y., L. & W. R. R. Co., 98 id., 447, and Hong Kong & Shanghai Banking Corporation v. Cooper, 114 id., 388; 23 St. Rep., 787, the defendants should be held to their stipulations. At this late day it would clearly be inequitable to relieve them. The commencement of the action in December, 1888, was notice to them that the plaintiff made a claim for substantial compensation. From that time up to the time they elected to stipulate not to institute condemnation proceedings they were at liberty to institute such proceedings, and had ample time to prosecute them to a close, but they saw fit to do nothing in that direction and to confine themselves to the use of their resources in obstructing plaintiff’s progress towards the enforcement of his rights. Moreover the plaintiff has conveyed upon the faith of one of the stipulations.

If the defendants were now relieved as they request, they would in all probability at once turn around and endeavor to so shape the controversy as to be able to claim that the plaintiff has no longer an equitable cause of action, that he should be turned out of court in the present suit and compelled to bring an action at law for damages, and that the purchaser has no standing unless he brought a new action, and if successful in such efforts no condemnation proceedings would, perhaps, be brought until towards the close of the controversy with the purchaser. A court of equity which already has complete jurisdiction over the whole controversy should not lend its aid to a prolongation of the litigation in the manner pointed out.

On the other hand, the conclusion reached involves no hardship to the defendants, for their rights, inclusive of every possible right arising out of the conveyance of the property by the plaintiff, can-and will be fully protected by this court in the final determination of the present litigation.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., concurs.


author: Fitzsimons, J.

text:
    Joseph Goldstein, Resp't, v. Jacob Silberstein, App'lt.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Verdict—Grounds for setting aside.
    A. verdict should not be disturbed unless it shows passion, prejudice, mistake, corruption, or shocks the judgment of man, or is without evidence or so decidedly against the evidence as to show partiality or gross ignorance.
    Appeal from judgment in favor of plaintiff.

      Herman Joseph, for resp’t; Blumenstiel & Hirsch, for app’lt.
   Fitzsimons, J.

The appellant’s main contention is that the verdict is against the weight of evidence, and contrary to the law.

A verdict should not be disturbed unless it shows passion, prejudice, mistake, corruption, or shocks the judgment of man, or is without evidence or so decidedly, against the evidence as to show partiality or gross ignorance.

We have carefully examined the evidence in this case for the purpose of determining whether or not the rule of law above stated applies herein against plaintiff.

We find that the evidence fully justifies the verdict. It also appears that the note in question was purchased in good faith and for full value, and certainly no charge of fraud or corruption applies to its transfer.

The judgment must be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.


author: Newburger, J.

text:
    Annie Grace, Resp't, v. Bella Curtiss, App'lt.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Supplementary proceedings—Receiver.
    An order appointing a receiver in supplementary proceedings without notice to the judgment debtor is void, unless the judge is satisfied that the debtor cannot, with reasonable diligence, be found within the state. A statement that such notice cannot with due diligence be given is not sufficient.
    Appeal from order denying motion to vacate orders appointing a receiver of defendant’s property and directing the payment of certain trust funds to the receiver.

      M. E. Duffy, for resp’t; William H. Sage, for app’lt.
   Newburger, J.

On the 13th day of February, 1898, an order was made herein for the appointment of a receiver of defendant’s property.

It appears that judgment was entered against the defendant, and thereafter an order for the examination of a third person was issued herein.

That the examination under said order disclosed that the defendant was the beneficiary of a trust created for her and her children by her husband, from whom she was separated.

Upon such testimony the order for the receiver was made without notice to the defendant.

On the 15th day of February, 1893, an order was made ex parte, requiring the trustee to pay over to the receiver the funds in his hands.

Subsequently a motion was made to vacate the order appointing a receiver and the order directing the payment of the trust funds to the receiver.

The motion to vacate said orders was denied, and this appeal is now taken from such denial.

The order appointing the receiver was made without notice to the defendant, and is, therefore, void.

Section 2464 of the Code provides that at least two days notice of the application for an order appointing a receiver must be given personally to the judgment debtor, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the state.

It does not appear that the defendant could not be found within the state.

The order simply states that notice to the judgment debtor cannot, with due diligence, be given. This is not sufficient. Morgan v. Von Kohnstamm, 9 Daly, 355.

For these reasons the orders appealed from must be reversed, with costs.

Ehrlich, Oh. J., concurs.


text:
    Thomas Crane, App'lt, v. Patrick J. Cranitch et al., Resp'ts.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Execution—Omission of indorsement as to defendant not served.
    An omission to indorse on an execution against partners the name of the partner not served does not make the execution void, but it may be amended by an order of the court.
    Appeal from order setting aside an execution as void.

      Moses Herrman, for app’lt; William Allen, for resp’ts.
   Newburger, J.

This is an appeal by the plaintiff from an order herein setting aside as void an execution issued to the sheriff of the city and county of Kew York, on a judgment entered on March 6, 1898.

This action was commenced by the service of a summons on the defendant, Patrick J. Cranitch, on the 1st day of March, 1893.

Judgment was entered against Patrick J. Cranitch and Jeremiah A. Cranitch, composing the firm of Cranitch Brothers, Jeremiah A. Cranitch not summoned.

Execution was thereupon directed to the sheriff to collect the said judgment out of the personal property of the defendants, and no reference was made in the said execution to the fact that one of the defendants had not been served.

It appears, however, that subsequently plaintiff’s attorney-served on the sheriff a notice directing him to levy only out of the individual property of the judgment debtor, Patrick J„ Cranitch.

A motion was subsequently made to vacate the execution, which motion was granted and this appeal taken.

The learned judge below in granting the motion held that the execution did not comply with § 1934 of the Code, and hence the same was void. With this contention we cannot agree.

It is true that the section referred to provides that the attorney must indorse upon the execution a direction to the sheriff containing the name of each defendant who is not summoned, and restricting the enforcement of the execution, yet in the next section provision is made that while the sheriff shall not enforce the judgment against the person not summoned, he is directed to collect it out of the property held jointly with the other defendants served.

In this case it appears that the defendants were co-partners, and the fact that the attorney failed to indorse upon the execution the name of the one partner not summoned did not make the execution void, but it could be amended as requested by the plaintiff’s attorney by an order of this court.

In Produce Bank v. Morton, 67 N. Y., 202, it was held that on an application to set aside an execution for a similar defect, that it would have been perfectly competent to have directed an amendment of the judgment and docket, and allow the execution to stand.

The defect was one of form merely, and all the requirements of the statute had been substantially complied with.

The order appealed from must, therefore, be reversed, with costs.

Ehrlich, Ch. J., concurs.


author: Ehrlich, Ch. J.

text:
    Charles H. Ludeke et al., Resp'ts, v. Frank Coursen, App'lt.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Contempt—Supplementary proceedings—Amount of fine.
    Where no actual loss or injury is produced by the disobedience of an order in supplementary proceedings, the fine imposed cannot exceed $250 and costs; if actual loss or injury is produced, the amount thereof must be based upon legal proof of the damage actually sustained.
    Appeal from order made in supplementary proceedings adjudging the defendant in contempt, and fining him $326.58 and thirty dollars costs.

      Hayman & Rosenthal, for app’lt; Robert Godson, for resp’ts.
   Ehrlich, Ch. J.

Where no actual loss or injury is produced by the disobedience to an order in supplementary proceedings, the fine imposed cannot exceed $250 and costs. Code, § 2284.

If actual loss or injury is produced, the amount thereof must be based upon legal proof of the damage actually sustained. Moffat v. Herman, 116 N. Y., 135; 26 St. Rep., 328; Sudlow v. Knox, 7 Abb., N. S., 411; DeJonge v. Brenneman, 23 Hun, 332; Clark v. Bininger, 75 N. Y., 344; King v. Flynn, 37 Hun, 329; Gallagher v. O'Neil, 21 St. Rep., 163.

27o such assessment of damages appear by the appeal book, and the order appealed from must, therefore, be modified by reducing the fine to the statutory limit, $250 and thirty dollars costs, and, as modified, the order appealed from will be affirmed, without costs. See DeJonge v. Brenneman, supra; Erie R. Co. v. Ramsey 45 N. Y., 637.

JSTewbübger, J., concurs.


text:
    John Claflin et al., App'lts, v. The New York Standard Watch Co., Resp't.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Trial—Counsel may refer to pleadings.
    Counsel has a right to refer to the pleadings during the progress of the trial, as they are always before the court and jury.
    Appeal by plaintiffs from judgment entered on verdict in favor of defendant.

      Charles W. Gould (Jno. L. Wilkie, of counsel), for app’lts; Jno. H. Weed (Lloyd McK. Garrison, of counsel), for resp’t.
   Ehrlich, Ch. J.

The case seems to have been carefully tried, and the result arrived at warranted by the evidence

The counsel had the right to refer to the pleadings during the progress of th„e trial, as they are always before the court and jury. Rowe v. Comley, 1 City Ct., 466; 2 Civ. Pro., 424, 427.

We have examined, the numerous exceptions and find them without merit.

On the facts as found by the jury, the verdict rendered by them is right, and the judgment entered thereon and the order denying the motion for a new trial must be affirmed, with costs.

Fitzsimons and Newburger, JJ., concur.


author: Bookstaver, J.

text:
    Winthrop Otis Sargent, Pl'ff, v. The Sargent Granite Company, Def't. Frank T. Sargent, Pl'ff, v. The Sargent Granite Company, Def't.

      (New York Common Pleas, Special Term,

      Filed April 19, 1893.)

    1. Corporations—Officer’s right to compensation for special services.
    While an officer of a corporation is not, in the absence of an agreement securing it, entitled to receive compensation for his services performed in the legitimate discharge of the duties of his office, yet if other services are performed by him in another and distinct capacity, at the corporation's request and ■with an express or implied promise to pay therefor, he may recover compensation as if he held no office.
    3. Bar—Pendency of action—Attachment.
    It is a valid defense that another action is pending in another state for the same cause of action, in which the plaintiff has procured an attachment.
    Demurrer to answer in two separate actions.

      George Comstock, for pl'ff, Winthrop Otis Sargent; George F. Bentley, for pl'ff, Frank T. Sargent; Harriman & Fessenden, for def't.
   Bookstaver, J.

The first action was brought by the plaintiff to recover of the defendant the sum of $6,500 for services performed as superintendent of certain quarries, and also the further sum of $571.55 for moneys paid out for the use of the defendant in and about its business, the complaint alleging that this was done at the special instance and request of the defendant. The second action is brought to recover the sum of $10,000 for work and services performed for the defendant at its special instance and request, “the same being wholty unconnected with any services performed for said defendant as an officer thereof.” The answers in eacli action were substantially the same, consisting first of a general denial, and then setting up two separate defenses, the first being that at the time mentioned in the complaint the plaintiff was a trustee and officer of defendant, and the second being that another action for the same cause was then pending in the state of Maine, in which the plaintiff had attached the property of the defendant in that state. The demurrer is interposed as to each of these defenses on the ground that the same are insufficient in law and do not state facts sufficient to constitute a defense to the cause of action set forth in the several complaints.

As to the first defense, we think the demurrer is well taken. The rule has become well settled in this state that- an officer of a corporation is not entitled to receive compensation, in the absence of an agreement securing it, for his services performed in the le-, gitimate discharge of the duties of his office, while, if other services are performed by the officer acting in another and distinct capacity than that of an officer, and it appears that the rate of compensation is conceded, he may recover compensation for those services the same as though he held no office whatever under the corporation, Barrill v. Calendar Insulating Co., 19 St. Rep., 877; Jackson v. N. Y. C. R. R. Co., 2 N. Y. Sup. Ct., 653; Pew v. Gloucester N. Bank, 130 Mass., 391; Talcott v. Olcott Mfg. Co., 11 W. Dig., 141; Kilpatrick v. Penrose Ferry Bridge Co., 49 Penn., 118; Loan Assoc. v. Stonemetz, 29 id., 534; Hodges v. Rutland R. R. Co., 29 Vt., 220; Maux Ferry Gravel Co. v. Branegan, 40 Ind., 361; Illinois Linen Co. v. Hough, 91 Ill., 63, and I think it is set forth with sufficient clearness in each of the complaints that the services for which recovery is sought were not those usually performed by a trustee, and that the plaintiff was specially requested by the corporation to perform the services with an expressed or implied promise to pay for the same.

The demurrer to the first separate defense should, therefore, be sustained, and plaintiff have judgment thereon, with leave, however, to the defendant to amend within ten days if so advised. I come to this conclusion the more willingly as I think, under the general denial, the fact that the plaintiff was a trustee and performed the services alleged in the complaint as a trustee can be proved upon the trial if such is the fact.

As to the demurrer to the second defense of another action pending in a different state, in which the plaintiff has procured an attachment, I think a different result follows. The cases cited by the plaintiff in support of the demurrer to this defense are either not in point or in favor of the defendant. Oneida Co. Bank v. Bonney, 101 N. Y., 173, merely decides that another action in a different state is no defense. The same is true of Burrows v. Miller, 5 How. Pr., 51, although the following appears in the opinion in that case: “In all the cases in this state where the foreign attachment was allowed to be valid, it appeared that the debtor’s property had actually been seized under it,” as is alleged in the defense under consideration. Bowne v. Joy, 9 Johns., 221, merely decides a plea of an action pending in another state is not a good defense; while Hecker v. Mitchell, 5 Abb. Pr., 453, was decided principally upon the ground that one of the pleas in the answer was frivolous, although it is true that there is in that case an obiter dictum of the learned judge who decided the case that an attachment upon property sufficient to satisfy the debt was not a defense to the action. But, upon full consideration of this question, in Embree v. Hanna, 5 Johns., 101, it was held that such a plea was a good defense in abatement of the action.

In the course of the opinion, Chancellor Kent said: “ Nothing can be more clearly just than that a person who has been compelled by a competent jurisdiction to pay a debt once should not be compelled to pay it over again. It has accordingly been a settled and acknowledged principle in the English courts, that where a debt has been recovered of the debtor under this process of foreign attachment in any English colony, or in these United States, the recovery is a protection in England to a garnishee against his original creditor, and he may plead it in bar (citing many cases). * * * If, then, the defendant would have been protected under a recovery had by virtue of the attachment, and could have pleaded such recovery in bar, the same principle will support a plea in abatement of an attachment pending and commenced prior to the present suit. The attachment of the debt in the hands "of the defendant fixed it there in favor of the attaching creditors ; the defendant could not afterwards lawfully pay it over to the plaintiff. The attaching creditors acquired a lien upon the debt binding upon the defendant; and which the courts of all other governments, if they recognize such proceedings at all, cannot fail to regard. Qui prior est tempore potior est jure. * * * If we were to disallow a plea in abatement of the pending attachment, the defendant would be left without protection and be obliged to pay the money twice; for we may reasonably presume that if the priority of the attachment in Maryland be ascertained, the courts in that state would not suffer that proceeding to be defeated by the'subsequent act of the defendant going abroad and subjecting himself to a suit and recovery here.” See, also, Wheeler v. Raymond, 8 Cow., 311, note a; Douglas v. Phenix Ins. Co., 63 Hun, 393; 44 St. Rep., 237. Indeed, if this were not so, it would follow that a plaintiff might harass his debtor by obtaining attachments in every state in the Union, provided the debtor had property in them, and this would result in great hardship and oppression.

The demurrer to the second defense should, therefore, be overruled, with leave to the plaintiff to reply to the same within ten days.

Inasmuch as the plaintiff is successful as to one of his grounds of demurrer and unsuccessful as to the other, there should be no costs to either party on these demurrers. In Hollingshead v. Woodward, 35 Hun, 410, at p. 413, it was said : “ Strictly speaking, separate demurrers should have been interposed to each defense. In this case the ground of demurrer is that neither of the alleged defenses state facts sufficient to constitute a defense to this action, and the demurrer being to both the second and third defenses, and one of them being held good, it cannot be said to be true that neither answer states facts sufficient to constitute a defense. But under the present system, in which pleadings are to be construed liberally with a view to ascertain the intention of the pleader, this rule may be regarded as too technical in its application. We think, therefore, the judgment in respect to the third answer should be reversed and judgment ordered for the plaintiff. As both parties are successful on appeal, neither should have costs against the other; and so of the trial of the demurrer below, neither should have costs against the other; or if costs be awarded below, they should be offset against each other.’’


text:
    Henry H. Meyer, Resp't, v. Adolphe Dreyspring, App'lt.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    1. Contempt—Supplementary proceedings.
    The violation of the injunction complained of was the parting with the sum of $60. Held, that the fine should not exceed that sum.
    2. Same—Prior transfers.
    A provision in an order .adjudging a debtor in contempt in such a case which requires him to obtain a reassignment of certain rights transferred prior to the judgment is unauthorized; such transfer can only be attacked by a creditor’s bill.
    Appeal by defendant from order adjudging him guilty of contempt of an order made in supplementary proceedings.

      J. Edward Weld, for appl’t; Harold Nathan, for resp’t.
   Ehrlich, Ch. J.

The defendant- having parted with sixty dollars in violation of the injunction order was subject to a fine for this amount. But beyond this the order made below was unauthorized.

The defendant did not have a family depending on him for support within the meaning of the statutory provision exempting earnings of a judgment debtor, and that feature of the case requires no serious consideration.

There was nothing in the case warranting a higher fine than the sixty dollars, wrongfully parted with to the prejudice of the judgment creditor.

The provision requiring the debtor to obtain a re-assignment of the rights transferred to his son was unauthorized.

The transfer had been made prior to the recovery of the judgment, and could be attacked by a creditor’s bill only.

It follows, that the order appealed from must be modified by reducing the fine to sixty dollars, and by eliminating the part in respect to the re-assignment, and as modified the order must be affirmed, without costs. See opinion, in Luedeke v. Coarsen, ante, 516.

Newburger, J., concurs.


text:
    Washington Seligman, App'lt, v. Edmund P. Schmidt, Resp't.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Pleading—Amendment.
    The court has power, on striking out portions of an answer as defective and ordering judgment on the balance, to allow the defendant to correct the errors and'deficiencies by amendment.
    Appeal from part of order allowing defendant to serve an amended answer.

      E. Seligman, for app’lt; Allan Lee Schmidt, for resp’t.
   Ehrlich, Ch. J.

The court below held tiie answer to be defective, struck out certain portions and ordered judgment on the balance, with permission to the defendant to correct the errors and deficiencies by amendment.

The plaintiff appeals from the part of the order granting, this privilege to the defendant.

The court below had authority to grant the defendant the liberty to amend; it is the power frequently exercised, the discretion was not abused in this instance, and the part of the order appealed from should, therefore, be affirmed, with costs.

Newburger, J., concurs.


text:
    Conrad Witezl, Resp't, v. The Third Avenue Railroad Co., App'lt.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Negligence—Street railroads.
    Plaintiff, who was driving a heavy truck, after looking both ways for a car, and seeing none, started to cross the avenue. After crossing one track and when his horses were on the other lie saw a car sixty feet away, to which he signalled, but the driver of the car did not or would not see-him, and the car struck the hick of the truck throwing plaintiff out and injuring him. Held, that the questions of negligence were for the jury and that a verdict for plaintiff was sustained by the evidence.
    Appeal from judgment in favor of plaintiff entered on verdict.
    Iioadly, Lauterbach & Johnson, for app’lt; Forster, Hotaling & Klenke, for resp’t.
   Fitzsimons, J.

The plaintiff, at the time he was injured, was the driver of a beer wagon. The team of horses were fairly heavy horses, weighing about 1,300 pounds each. The wagon and its contents weighed over two tons. Therefore, it is a self-evident fact that, because of their own weight and the weight of the wagon and contents, the horses were not capable of good speed.

The plaintiff was serving a customer on the westerly side of Third avenue and Seventy-eighth street. After doing so, he drove across Third avenue, having previously looked up and down for a car and saw none.

He crossed safely the south bound track and his horses had crossed to the north bound track, and were upon the same, when upon looking southward he saw a car coming up and distant about sixty or eighty feet away.

He signalled to its driver, who apparently would not or did not see him, whipped up his horses and had crossed said northbound track except the extreme rear part of his wagon, when his rear wheels were struck by the car, he was thrown out and severely injured.

The jury rendered a verdict in his favor for $500.

The testimony shows that plaintiff’s horses were actually upon the north bound track when defendant’s car was sixty or eighty feet away to the southward.

The plaintiff was not bound to wait until defendant’s car passed him; if, as a prudent, careful driver, lie deemed it safe to cross the track in question, he had a right to do so.

The car companies have not exclusive right to the public highways along which their tracks run.

They are, through their drivers, required to exercise ordinary care and diligence in the management of their cars.

The question whether or not the plaintiff exercised his right to cross defendant’s tracks in a careful or careless manner was a question for the jury to determine.

They evidently believed that he was not careless, and the testimony is more than sufficient to justify that finding.

Concerning defendant’s negligence, that is also clearly established, for the testimony shows that the plaintiff’s horses were actually upon the north track when defendant’s car was quite a long distance away.

He, under such circumstances, had a right to go ahead, and it became defendant's duty to stop its car until plaintiff had passed over its said tracks.

Its failure to stop its car was negligence, unless it was impossible to do so. The question whether or not defendant was negligent was also submitted to the jury, who determined it affirmatively, and that conclusion is also justified by the evidence herein.

The judgment rendered was certainly a reasonable one in amount.

Finding no error, judgment is affirmed, with costs.

Newburger, J.—I concur in the result.


text:
    George A. Chamberlain, App'lt, v. George W. Almy, Resp't.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    1. Interpleader—Brokers.
    The mere fact that a person claims a share of the original brokerage under some arrangement with the plaintiff, without proof of any employment of such person by defendant, is not sufficient to show such a claim to the “ same debt ” as the Code requires to authorize an order of inter-pleader.

      2. Same—Affidavits.
    On motion for interpleader, the justice has the right in his discretion to receive affidavits of either party prior to making a decision.
    Appeal from order allowing interpleader and from order refusing to strike out affidavit filed after argument of motion,

      Joseph G. Gay, for app’lt; Phillips & Avery, for resp’t.
   Ehrlich, Ch. J.

The plaintiff’s claim was for $165 brokerage, on which the defendant paid one-half, leaving $82.50 due. The action was for this balance.

Upon application of the defendant, and on proof that one Fan-ton claimed one-half of the original brokerage, to wit: $82.50, under some arrangement with Chamberlain, the plaintiff, the court made an order that the defendant be discharged from liability and that Fanton be substituted as defendant in his place.

There was no such claim to the “ same debt ” as the Code contemplates.

The defendant was not warranted in assuming that, under some arrangement with Chamberlain, Fanton became jointly interested in the brokerage, or entitled to one-half thereof, nor authorized in acting on the assumption by paying Chamberlain one-half of the $165, and then compelling him to litigate with Fanton as to the other half.

There could be no such division or separation of the original debt made by the act of the defendant alone.

There was no claim that Fanton was employed by the defendant, and no proof that he was under any liability to him whatever.

It would seem from the record that Chamberlain was entitled to the entire commission, and that whatever claim Fanton had was against Chamberlain after he had received the whole. Wemple v. McManus, 59 N. Y. Superior Ct., 418; 15 N. Y. Supp., 86; 39 St. Rep., 141.

The justice who heard the motion had the right to receive affidavits from either party prior to making a decision of the motion, and it was discretionary with him whether he would receive Fan-ton’s affidavit or not.

Such matters are very much within the control of the judge who heard the original application.

The order denying the motion to remove Fanton’s affidavit from the record will, therefore, be affirmed, with costs; but the order directing the interpleader must, for the reasons before stated, be reversed, with costs.

FTewburger, J., concurs.


text:
    Celeota E. Stevenson, Resp't, v. Ballard S. Dunn et al., App'lts.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Pleading—Frivolous answer.
    An answer in an action for money loaned which admits the loan, and alleges the giving of a note therefor, but does not allege that the note is not due, is clearly frivolous. The taking of a debtor’s note does not extinguish the original debt, but only extends the time of payment, and if it is not paid when due, the creditor may sue on the original demand, and bring the note into court to be given up on the trial.
    Appeal from order granting judgment for plaintiff on the pleadings.

      A. H. H. Dawson, for app'lts; Ernest H. Ball, for resp't.
   Fitzsimons, J.

The plaintiff loaned money to defendants who gave their note therefor. Plaintiff sued upon the original debt.

Defendants answered admitting the loan and stated the giving of the note. A motion was made to declare the defense pleaded a sham, which was granted.

The rest of the answer not declared sham is clearly frivolous. That part, pleading the giving of the note, is without legal merit

The taking of a debtor’s note does not extinguish the original debt : it is a promise to pay put in writing, and only extends the time of payment of the debt itself until the note is due.

If it is not then paid, the creditor may sue upon the original-demand, and bring the note into court to be given up on the trial. Jagger Iron Co. v. Walker, 43 N. Y. Supr. Ct., 275; 76 N. Y., 524.

The answer served does not show that the note when the action was commenced was not due.

We must assume that it was and, therefore, order appealed from must be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.


text:
    Sara Riordan, Resp't, v. The First Presbyterian Church of Tremont, App'lt.

      (City Court of New York, General Term,

      Filed May 9, 1893.)

    Promise—To pay for services rendered to another.
    Defendant, in consideration of a conveyance of real estate, agreed in writing to “ pay and discharge any and all charges and expenses for necessary attendance in case of the illness ” of the grantor. Meld, that such agreement enured to the benefit of one who 'performed such services; that in case defendant did not furnish or offer to furnish such attendance said grantor had a right to engage any person for that purpose, and defendant became liable to such employee for the reasonable value of the services rendered if the same were necessary.
    Appeal from judgment in favor of plaintiff.

      S. A. & D. J. Noyes (Ernest Hall, of counsel), for app'lt; Edgar J. Nathan, for resp’t.
   Fitzsimons, J.

On February 21, 1887, the defendant made an agreement with one Ann Wilson, therein reciting the conveyance by her to it of certain real estate, and in consideration of such transfer, among other things, agreed “ to pay and discharge any and all charges and expenses for necessary attendance in case of the illness of said Ann Wilson.”

At the time she was eighty-seven years old, was sick and continued to be so'until the time of her death, August 11, 1891.

During that time plaintiff attended her, and in this action seeks to recover the value of such services from defendant, by virtue of the agreement aforesaid. The jury rendered a verdict for the-plaintiff for $810.

It was a question of fact for the jury to decide, whether or not. Ann Wilson was ill from February 22, 1887, to August 11,1891, and whether the services rendered by plaintiff were necessary and the charges therefor reasonable.

They decided that issue in plaintiff's favor, and there is abundant evidence to sustain that finding.

The agreement mentioned enured to the benefit of plaintiff, in fact it was made for the express purpose (among other things) of protecting any person rendering Ann Wilson necessary attendance-in case of her illness.

It is not contended that defendant furnished or offered to furnish such attendance to her, and, upon its failure to do so, she had a right to engage any person for that purpose, and defendant be•came liable to such employe for the value of the services rendered within the limitation above stated.

It is the settled law of this state, that an agreement made on a valid consideration by one with another to pay money to a third can be enforced by the third person in his own name; the fact that the liability assumed is not in existence at the time of the making .of such agreement, or that the person to be benefited is not then known or privy to the agreement, does not affect this rule. Coster v. Mayor, 43 N. Y., 399.

This case falls within that ruling, so plaintiff had a right to commence and maintain the same.

Finding no error, the judgment is affirmed, with costs to respondent.

Ehrlich, Ch. X, and Mewberger, X, concur.


author: Barnard, P. J.

text:
    Edward Everett, App'lt, v. Georgie Lillian Morrison, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Mabbiage—Validity.
    A ceremonial marriage, performed by a clergyman in Rhode Island, and followed by cohabitation in Massachusetts, is valid everywhere.
    2. Same—Consent.
    A woman cannot silently withhold her consent to a formal marriage and treat it as a good marriage subsequently, and annul the marriage because it was not real and binding upon her.
    Motion for reargument.
    This was an appeal from an order vacating a judgment annulling the marriage between the parties hereto, and allowing the defendant to interpose her defense. This court reversed the order. See 50 St. Rep., 33.

      Ayres & Walker, for motion; George Zabriskie, opposed.
   Barnard, P. J.

— The law of Massachusetts cited the defendant has no relevancy. The defendant was married to Morrison by a ceremonial marriage performed by the Rev. Dr. Taylor in Rhode Island. The marriage was followed by cohabitation •as husband and wife in Massachusetts. Such a marriage is good everywhere. If the ceremony had been performed in Massachusetts, and been followed by cohabitation in that state, there is no law of Massachusetts which would treat the marriage as void. The case must be treated as if such was the fact. The formal marriage in Providence was binding in that state, and if good where it was performed, it was good elsewhere. The pretense that the defendant did not consent to the marriage in Rhode Island has no weight. It is not pretended that such fact was •communicated to the clergyman who performed the ceremony. Morrison did not so understand it, for he demanded his wife .of her parents by force of it; and the fact that Mrs. Morrison yielded to the demand concludes her. It cannot be accepted by the courts that a woman may silently withhold her assent to a formal marriage and treat it as a good marriage subsequently, and annul the marriage because it was not real and binding on her.

The motion should be denied.

Pratt and Dykman, JJ., concur.