author: Per Curiam.

text:
    The People, Resp’ts, v. John Hartley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Assault — Proof.
    On the trial of an indictment for assault in .the second degree the evidence tended to show that defendant called on complainant while intoxicated, and on her refusing to accompany him to the theatre stabbed her several times with a penknife in the cheek and neck. The complainant testified that she believed the stabbing to be accidental, and defendant's sister to his good character. Held, that a verdict of guilty would not be disturbed.
    Appeal from a judgment of the court of general sessions of the peace in and for the city and county of New York, entered upon the verdict of a jury finding the defendant guilty of the felony of an assault in the second degree.

      Frank J. Keller, for app’lt; De Lancey Nicoll, dist.-atty. (Henry B. B. Stapler, asst. dist.-atty., of counsel), for resp’ts.
   Per Curiam.

The indictment charged the defendant in the first count with the crime of assault in the first degree, and in the second with the crime of assault in the second degree. Upon the trial, at the conclusion of the testimony, the court withdrew from the consideration of the jury the first count of the indictment, and the jury having found the defendant guilty under the second count, it is from the judgment entered on such verdict that the defendant has appealed to this court.

The facts show that the defendant called at the residence of one Bertha Meyer, who was the complainant, in an intoxicated condition ; and upon her refusal to accompany him to a theater,because of such intoxication, he stabbed the complainant in the cheek and behind the ear, and three or five times in the neck, the marks of which stab wounds were discernible at the time of the trial and exhibited to the jury. The wounds were made with a pearl-handled penknife about four inches long.

It appeared further that prior to this occurrence the complainant and defendant were on friendly terms, the latter visiting her with the approbation of her mother; and, with a forgiving disposition, she endeavored upon the trial, in every way, to shield the defendant, going so far as to testify that she believed the stabbing to have been accidental. The jury before whom the complainant testified, and who were confronted with the fact that not only one, but several, wounds resulting from the stabs received on that occasion appeared on the cheek and ear of the complainant, refused to accept her conclusion that it was accidental, and reached the one which was alone consistent with the evidence, that it was a willful and wrongful assault with an instrument likely to produce grievous bodily harm. The only witnesses for the People upon the trial were the complainant, who stated the circumstances under which she received the wounds, and a person connected with the central office, who arrested the defendant; and, on the part of the defendant, but one witness was examined, his sister, as to character. Then, in a very full and clear charge, the question as to whether the defendant was guilty of assault in the second degree, or of a common assault and battery, now termed “ assault in the third degree,” was presented to the jury by the learned recorder.

Upon the testimony, and the charge of the court, and the conclusion reached by the jury, we might well place this affirmance upon § 542 of the Code of Criminal Procedure, which requires that this court, after hearing the appeal, “must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” We have, however, examined the exceptions as they appear in the record;, and neither those relating to evidence, nor those taken to the charge of the recorder, were based on grounds which would make them technically or legally good. Upon such a record, showing that the evidence justified the verdict of the jury, and that no error prejudicial to the prisoner was committed, it remains but to affirm the judgment.

Judgment affirmed.

Van Brunt, P. J., O'Brien and Follett, JJ., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Henry W. Johnson, Pl’ff, v. Edward G. Williams, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Deed — Description—Omission in.
    An omission in the description in one of the deeds in a chain of title of a portion of the direction of the last course, the distance and point of termination, however, being given, and the statement made that it contains all the land in said b muds, will not make the grantee’s title defective, nor constitute a break in the chain of title.
    Submission of controversy without action.

      Coleridge A. Hart, for pl’ff; William H. Townley, for def’t.
   O’Brien, J.

The facts show that the plaintiff and defendant made a contract, the former to sell and the latter to buy certain premises in what is commonly called the “Annexed District of Hew York City.” The contract called for a proper deed conveying the fee simple of said premises. The correct description of the property intended to be conveyed is contained in the deed delivered to the plaintiff on the 1st day of October, 1872, as follows : “All that other piece or parcel of land lying and being in the town of West Farms, in the county of Westchester, and state of Hew York, bounded and described as follows : Beginning at a point on the southerly side of Washington street, distant two hundred and ninety-five feet easterly from the corner of said street and Union avenue; thence running southerly and parallel, or nearly so, with said Union avenue, about one hundred and eighty-five (Í85) feet to a stone wall, the boundary of lands of William W. Fox, deceased; thence running easterly along the center of said wall by said Fox’s land about one hundred and ninety-seven (197) feet to the corner of land formerly belonging to Mr. Devoe; thence running northerly through the center of a stone fence by land formerly of Mr. Devoe about one hundred and ninety-three feet (193 ft.) six (6) inches to a strip of land at the head of Washington street, owned by Mr. Ashe; thence westerly along said strip of land owned by Mr. Ashe and Washington street about one hundred and twenty-four (124) feet to the point or place of beginning.”

It is conceded that the deed tendered to defendant would include the premises thus described, but the objection to the title arises in an alleged defect in the chain, growing out of an omission of one of the courses in a former deed made by Maria Amos and William Amos, her husband, to one of plaintiff’s predecessors in title, and dated the 2d day of May, 1864. In this last mentioned deed the description is the same as above, except that the words in the fourth course, “thence westerly along said strip of land owned by Mr. Ashe,” are omitted, so that the deed, after describing the two first courses as in the correct description of the premises, reads as follows: “Thence running northerly through the center of a stone fence by land formerly of Mr. Devoe about one hundred and ninety-three (193) feet six (6) inches to a strip of land at the head of Washington street owned by Mr. Ashe, and Washington street about one hundred and twenty-four (124) feet to the point and place of beginning; containing all the land in said bounds.”

It is conceded further that at the time this deed, in 1864, was made the grantee gave back to the grantor purchase money mortgages which contained a correct description of the premises, and that the words omitted from the deed were in the purchase money mortgages. It will also be noticed that the defective deed states that the boundaries given embrace all the land in said bounds. The question thus presented is purely one of construction. As to the true construction, we entirely agree with the plaintiff that the description in the deed claimed to be defective admits of no other interpretation than one which covers and includes the whole of the parcel conveyed to plaintiff in 1872. We fail to see how any doubt can exist, whether resort be had to language or the simplest process of reasoning with a view of reaching a solution upon the question submitted. It would be impossible, by measuring off 124 feet in any other direction, to reach the point of beginning, than by going in a westerly direction to such point. There is nothing omitted from the Amos deed which was essential to a definite location of the fourth course of the premises intended to be, and which were in fact, conveyed. We are of opinion, therefore, that the mere omission from the description of the words “thence westerly, etc.,” makes the plaintiff's title in no way defective, nor is it serious enough to be regarded as a break in the chain of title, or one which would prevent the plaintiff from fulfilling his contract to give a perfect deed conveying the fee simple of the premises in question. Upon the conceded facts, therefore, the question submitted for our consideration, as to whether the deed in which this omission occurs was sufficient to convey the premises contracted to be sold to the defendant, should be answered in the affirmative, and judgment should be entered against defendant directing that he perform his contract, and accept the deed tendered by plaintiff, and in other respects comply with the terms of the agreement.

Judgment accordingly, with costs.

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


author: Van Brunt, P. J.

text:
    Guy Haas, Pl’ff, v. Barbara Kuhn, Individually and as Executrix, Def't.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Vendor and purchaser — Power op lipe tenant to incumber where THERE IS A POWER OP SALE.
    Where real estate is devised to one for life with a power of sale in the executor, the life tenant takes subject to the power of sale, and an agreement amounting to an incumbrance on the land is operative only until such power is exercised, and a deed by the executor will convey a title free from such incumbrance. The mere fact that the executor and life tenant are the same person makes no difference in that respect.
    Submission of controversy upon an agreed state of facts, in an action to compel defendant to take title to real estate.

      F. A. Winslow, for pl'ff; Lorenz Keller, for def't.
   Van Brunt, P. J.

Upon one important branch of this controversy the submission is somewhat uncertain as to the fact admitted, and that is as to the means by which the defendant acquired her life estate in the premises in question. We presume, however, that it was intended to be admitted that she acquired this life estate by the will of her husband, in pursuance of the power of sale contained in which she made the contract with the plaintiff therein mentioned, and we will dispose of the case assuming this to "have been the purport of the admission. The plaintiff seeks to recover $1,000 and interest, and charges for the examination of title herein, because it is claimed that the defendant is unable to give a clear title to certain premises on Essex street which she entered into a contract with the plaintiff to convey. It would appear that by the will of the defendant’s husband, who died in 1877, she was devised this real estate for life, of which will the defendant was executrix, and by which will a discretionary power of sale of all real estate was given to such executrix. In February, 1878, the defendant individually executed an agreement not to erect a wall over or upon certain parts of the premises in question. In October, 1892, the defendant, as executrix, under the power of sale contained in the will, entered into a contract to sell the premises in question free from all incumbrances to the plaintiff. The plaintiff, upon examination of the title, discovered this agreement in regard to building upon the lot in question, and refused to take title, and brought this submission, which was presented to recover the amount paid on account, and the disbursements and charges upon the examination of the title; and the question submitted is whether the premises are incumbered by reason of the party-wall agreement, and the, covenants therein, either during the life of the defendant or for a longer time.

This question seems to be resolved when we consider the nature of the life tenancy of the defendant. The sole title she took under the will was subject to the power of sale therein contained. She undoubtedly could make a contract with reference to building upon this lot during her life which would be binding upon her so long as the power of sale contained in the will was not executed. But as her title during life was subject to the execution of this power of sale, when this power of sale was executed because of the supposed advantage to the estate, such execution related back to the time when the will became operative, and cut off any incumbrances which might be put upon the property by those- persons holding the title subject to the exercise of such power of sale. It would, therefore, seem to be apparent that by the exercise of the power of sale as executrix of the will of her husband the defendant could give a title free and clear from this individual agreement which she made, which was only binding upon her during her life, in case the power of sale was not exercised. It is apparent that this must necessarily have been the result had the life tenant and the executor or executrix of the will been different persons; and the mere fact that the life tenant and the executrix are the same person does not seem to us in any way to restrict powers which might be exercised under the power of sale. We think, therefore, that the deed of the executrix was superior to the agreement of the individual life tenant, and that the plaintiff should be decreed to perform the contract, and pay the costs of this action.

Judgment accordingly.

O’Brien and Follett, JJ., concur.


author: Follett, J.

text:
    Georgianna Webster, Resp’t, v. Mary J. Clark, Ex’rx, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)
    Appeal — Interlocutory judgment.
    Upon appeal from a final judgment neither interlocutory judgments nor intermediate orders can he reviewed unless they are specified in the notice of appeal. The omission to specify them cannot be remedied by amendment, as the court has no power thus to extend the statutory time in which an appeal may be taken.
    Appeal from a judgment in favor of plaintiff, entered upon the decision of the court upon a trial of this action at special term without a jury.

      Ira Shafer, for app’lt; Vanderpoel, Green & Cuming (Robert S. Green and Henry Thompson, of counsel), for resp’t.
   Follett, J.

This action was begun June 5, 1885, to compel defendant’s testator, Lemuel B. Clark, to account for rents received from two houses on Seventy-fourth street, one on Seventy-ninth street, and a tract of land 135 feet wide, bounded on the north by Eighty-sixth street and on the south by Eighty-fifth street, to which property the plaintiff once held the legal title. The defendant’s testator was an attorney at law, and the attorney for the plaintiff in certain litigations concerning the title to this property. January 9, 1874, the plaintiff conveyed the two houses on Seventy-fourth street to Lemuel B. Clark, and January 29, 1874, the property between Eighty-fifth and Eighty-sixth streets to Jeremiah Brown, and February 7, 1874, she conveyed to said Brown .the property on Seventy-ninth street. Brown was a nephew of Clark. The plaintiff alleges that the conveyances were made as security for the charges of Clark as her counsel in the litigations then pending and contemplated, and that he agreed to account for the rents and profits. Previous to these conveyances there had been litigations over the title to the property when held by one Geery, the father of the plaintiff, which suits had been conducted by Clark, who, in his answer, alleges as a defense:

Finally, after many conversations respecting the matter, and the said Geery and wife having no money or property standing-in the name of either of them, and each of them being' wholly insolvent, and it being apparent that the litigation so commenced against them would be long and expensive, and probably would result adversely, it was agreed by the said William Geery and his wife and the plaintiff and this defendant as follows: (1) That the plaintiff, Georgianna F. Webster, should convey thej property on Seventy-fourth street, described in the complaint, to-the defendant absolutely, the same to be his absolutely, in payment for the money due to him from William Geery, as aforesaid, and in part payment for his services and counsel fees and disbursements in or concerning the said suit against the said William Geery and Louisa Geery, his wife; (2) that the said Georgianna F. Webster should convey the said property on Eighty-sixth and Eighty-fifth streets, and Seventy-ninth street and Lexington avenue, described in the complaint, to Jeremiah Brown ; and, if the said William and Louisa Geery were successful in defeating the plaintiffs in the said suit, or in any other suit or proceeding which might be brought to reach the said property, the defendant should have and keep one-half of this Eighty-fifth and Eighty-sixth street property, and its proceeds and all the rents which he might get therefrom, and the amount of all taxed costs, and a fair and reasonable counsel fee besides, and he was also to be allowed and repaid all moneys and interest on same which he might pay out for any purpose deemed necessary by him to aid in keeping said property from the creditors of William Geef v, and also all his disbursements. And the plaintiff assented and agreed to the said agreement, and every part thereof; and thereupon, but after a good deal of delay, the plaintiff, in pursuance of said agreement, by deed dated January 9, 1874, conveyed the Seventy-fourth street property to this defendant, and by deeds dated January 28, and February 7, 1874, she conveved the Eighty-fifth and Eighty-sixth street and Seventy-ninth street and Lexington avenue property to the said Jeremiah Brown, both of which conveyances to him, the said Brown, and all the deeds and conveyances to him were made for the purpose of hindering, delaying and defrauding the creditors of William Geery, and of covering up the said property, it being, in fact, the property of William. Geery, and to enable him to defraud the estate of his brother, the late Isaac Geery, and particularly the said Geery and Scholes, as executors aforesaid, who had recovered the said large judgment against him, the said William Geery, and for the purpose of having this defendant defend said suit against the said William and Louisa Geery, as their attorney and counsel, and any other suit or suits which might be brought to reach said property, and to insure the carrying out of said agreement with this defendant, and for no other or different object or purpose.”

This action was tried at special term, and an interlocutory judgment entered December 28, 1887, which held that Lemuel B. Clark, the defendant, was a trustee for the plaintiff, and liable to account as such. A reference was ordered to take and state the accounts. The defendant preferred requests pursuant to § 1028, some of which were allowed, and others refused ; but no exceptions were filed or served to the refusal of the court to find or decide as requested until November 7, 1890, when the defendant filed so-called “ exceptions ” to the order and final judgment, and to the refusal of the special term to find facts and conclusions of law as requested. January 5, 1888, the defendant served and filed exceptions to all of the findings of fact and conclusions of law. August 25, 1890, the referee reported that there was due from the plaintiff to the defendant $92,808.38. No requests were made to the referee to find fapts. At some time the defendant filed and. served exceptions to the referee’s report. In October, 1890, the case was brought to a hearing at special term, on the interlocutory judgment, the exceptions thereto, and the report of the referee, and a judgment ordered for the plaintiff for the amount reported, with costs. October 19,1890, a final judgment was entered in favor of the plaintiff, for $95,513.28. November 7,1890, the defendant appealed from the order of the special term directing final judgment, and on the same day he appealed from that judgment, but did not refer to the interlocutory judgment in his notice of appeal, which latter judgment has not been appealed from.

We think the facts were well found by the special term, and were sustained by the evidence, but a question about to be stated renders unnecessary a discussion of the conduct of the parties, and especially of the defendant’s testator, which, to say the least, was, according to his verified answer, very unprofessional. “ Where the appeal is from a final judgment, * * * and the appellant intends to bring up for review thereupon an interlocutory judgment, * * * he must, in the notice of appeal, distinctly specify the interlocutory judgment * * * to be reviewed.” ■Code Civ. Pro., § 1301. Under this section it has been repeatedly held that neither “interlocutory judgments” nor “intermediate orders ” can. be reviewed upon an appeal from a final judgment, unless they are specified in the notice of appeal. Lavelle v. Skelly, 24 Hun, 642; 90 N. Y., 546; Piper v. Van Buren, 27 Hun, 384; Richards v. Brice, 15 Daly, 144; 22 St. Rep., 289; Patterson v. McCunn, 38 Hun, 531; Dick v. Livingston, 41 Hun, 455; 4 St. Rep., 202. The cases cited also held that the omission to specify the interlocutory judgment or intermediate order cannot be remedied by an amendment, the court being without power to authorize an amendment, and thus extend the statutory time in which an appeal may be taken. There being no appeal from the interlocutory judgment, this court is without power to reverse or affirm it. The notice of appeal brings up for review the final judgment only, and the question raised on the accounting before the referee. However, the learned counsel for the appellant not only failed to discuss any of the questions raised on the hearing, but, on _ the contrary, expressly asks this court not to consider those questions, as he desires the judgment affirmed or reversed as a whole.

The final judgment should be affirmed, with costs.

Van Brünt, P. J., and O’Brien, J., concur.


text:
    The People, Resp’ts, v. Daniel Kennedy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Homicide — Manslaughter in the first degree.
    Proof that defendant and deceased were engaged in a struggle, that deceased had hold of defendant and was striking him, without having a \ weapon, and that defendant thereupon shot' him, is sufficient to sustain a conviction of manslaughter in the first degree.
    2. Same — Evidence.
    An error in allowing defendant to be questioned as to fights in which he had been engaged with others is cured by the court striking out the evidence because not followed by proof of his indictment and conviction therefor, and instructing the jury to disregard it.
    3. Same — Declarations of deceased.
    Evidence of declarations of deceased that “he could do anyone he wanted to, and that nothing could be done to him, because he was supposed to be crazy,” not said with reference to defendant, is immaterial.
    Appeal from a judgment of the court of oyer and terminer, entered upon the verdict of a jury finding the defendant guilty of manslaughter in the first degree.

      Purdy & McManus (Ambrose H. Purdy, of counsel), for app’lt; De Lancey Nicoll, dist. atty. (Henry B. B. Stapler, asst. dist. atty., of counsel), for resp’ts.
   O’Brien, J.

The defendant was tried upon an indictment charging him with the crime of murder in the first degree, committed on the 20th of December, 1891, in the killing of one John Keating, which trial resulted in a verdict of the jury finding the defendant guilty of manslaughter in the first.degree; and from the judgment entered thereon this appeal is taken. Upon the trial it was shown that the deceased, who was a married man, on the night in question, which was a Sunday evening, left his home after supper, and, together with his father-in-law, went to a saloon ón the corner of Seventeenth street and Avenue A, which was reached about eight o’clock. After a quarter of an hour spent in the saloon, the defendant, accompanied by one Kingston, came in,, and the defendant invited the deceased to drink, which invitation was accepted by the deceased. According to the account given by the father-in-law, the drink being taken, the defendant requested the deceased to come out on the sidewalk, saying he wished to see him, and that thereupon the witness, the deceased,, the defendant and Kingston went out of the saloon on the sidewalk, and that within three or four seconds thereafter the defendant drew a revolver, and discharged its contents into the body of the deceased, saying, “ Take that;” that thereupon the deceased walked back into the saloon, followed by the defendant. In addition to this witness, a police officer was examined, who testified that he was on the north side of Seventeenth street, directly opposite the saloon, and noticed four persons; two on the south side of Seventeenth street, in front of the entrance to the house in which the saloon was, and two more standing eight or ten feet west of the door; that he turned his eyes away for half a minute, when he heard a pistol shot, and, turning in the direction of the report, saw three men going in the door, the two wha had been standing there and one of the other two. The deceased was taken to Bellevue Hospital, where it was found that he had been shot in the abdomen, and from the wound thus received he died on the following afternoon. On his person was found a penknife, which was shown to be the only weapon that the deceased had on that night. The defense was justifiable homicide, the defendant claiming that the deceased had for years threatened his life, on two former occasions having stabbed him, and that the ill will between them had a few months prior to the fatal occurrence been accentuated by the belief on the part of the deceased that the defendant was instrumental in procuring the conviction of a brother of the deceased, who was then serving a sentence in state’s prison.

The ground most strongly urged for a reversal of the judgment is that the evidence was susceptible of only one of two conclusions : That, taking the case as made by the People, it was a deliberate, premeditated, cold-blooded murder, for which the defendant should have been convicted of murder in the first degree, or, taking the evidence of the defendant and his witnesses, it presented a perfect defense of justifiable homicide; but that, in any view to be taken of the evidence, it would not justify a conviction of manslaughter in the first degree, which was the verdict rendered in the case. There can be no doubt, upon the evidence, that the deceased was a violent, quarrelsome man, disposed to quarrel upon the slightest pretext; out in this respect he does not seem to have been in character nuch worse than the defendant, who, on his own testimony, was arrested two or three times for assault, and who, with a pistol in his pocket, was not disposed to avoid a quarrel. While it is true that the deceased had made frequent threats against the defendant, covering a period of years, it is still made to appear that frequently during such period the parties. had met, and apparently amicable relations were restored, and that violence or threats of violence directed towards the defendant were usually indulged in by the deceased while under the influence o'f liquor.

Taking the testimony of the father-in law of the deceased, or giving credit to that of the defendant’s witness, Kingston, it is clear that the going out from the saloon to the street was upon the invitation of the defendant, and, as no other reason is assigned for requesting the deceased to leave the saloon, it is susceptible of the conclusion, in view of what occurred, that it was with the predetermination to take the life of the deceased. This man, Kingston, testified that in leaving the saloon the defendant went first, and that he was between the defendant and the deceased ; that in going out the deceased used abusive language, and attempted to stab the defendant with what the witness designated as a large dirk, but which, as was clearly shown; if this witness is to be believed at all, could only have been an ordinary penknife. Assuming, however, that the effort to use this penknife was made by the deceased in going through the hallway, Kingston testified that he had hold of the deceased, and that, while so having hold of him, the door leading into the street was closed, the defendant having reached the street, leaving the deceased and Kingston inside. No effort was made by the defendant to avoid an encounter, but, on the contrary, he waited until the door was opened and the deceased came out, and within a few seconds, not more than sufficient, if some of the witnesses are to be believed, to enable the defendant to draw the revolver from his pocket and fire the fatal shot. We are inclined to agree with appellant’s counsel that much of the evidence was susceptible of the view, and would have justified a verdict, of deliberate murder. There were, however, besides those already referred to, other witnesses, and notably one produced by the defendant, whose version it was in the province of the jury to accept. Section 189 of the Penal Code defines manslaughter in the first degree as homicide committed without design to effect death, either “First, * * *; second, in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.” This witness, White, claimed to have been a witness to a struggle on the sidewalk between the defendant, the deceased and Kingston, and that he saw the deceased striking the defendant, but did not see any knife in the hands of the deceased ; that the deceased had hold of the defendant and was striking him.

This testimony, if believed by the jury, would make out a clear case of manslaughter in the first degree, because showing that the deceased struck defendant without using a weapon, and that the defendant returned these blows by killing the deceased with a deadly weapon. To hold that such evidence established the defense of justifiable homicide would be to upset all well-settled rules and statutes, which point out the duty of one engaged in a quarrel, and the necessity of his avoiding the attack, if in his power, and of not becoming the aggressor unless other means were unavailable, and, at roost, to use only such force as was necessary to prevent injury to himself. Whether there was reasonable ground for the defendant to apprehend a design on the part of the deceased to take his life was a question which, upon the testimony in this case, was peculiarly one for the jury ; ánd they having found against the defendant, upon competent and sufficient evidence, it is not within the province of this court to disturb their verdict. Taking the entire record, we think that the jury indulged in every inference as favorably to the defendant as the evidence warranted, and that with their conclusions he has no cause of complaint.

The verdict being supported by ample evidence, and the defendant being justly convicted of an aggravated crime, one for which we can find neither palliation nor excuse, we are compelled to approach the consideration of the few exceptions appearing in the record by recalling the provisions of the Criminal Code, wliich require this court, after hearing the appeal, to give judgment “ without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." Crim. Code, § 542.

The first error assigned in the admission of evidence has reference to the cross-examination of the defendant, who, under objection and exception, was interrogated as to fights into which, he had entered with several persons whose names were stated t» him. With some of these persons the defendant admitted he had had altercations, and with others that he had not. As shown by the record, the learned trial judge was under the impression that this evidence was to be followed up by other testimony showing trial and conviction for the offenses. This not being forthcoming, the defendant was recalled, and the court thereupon stated that, upon consideration, it would strike out all the testimony as to the defendant’s having been arrested for assaults, and would tell the jury to disregard it. In this disposition the counsel for the prisoner seems to have acquiesced, as shown by what occurred upon the trial. After the statement that the testimony would be stricken out, the court said: “I supposed he [the district attorney] intended to follow it up by statements showing the indictment and subsequent proceedings. But, rather than have it stand, I think it fair to the defendant to strike it out. Mr. Purdy: These are twelve intelligent gentlemen."

In addition to this occurrence, the court was careful in its charge to remind the jury that this evidence had been stricken out, and instructed them to disregard it. We fail to see, in view of what took place, how the defendant could have been injured.

The only other exception urged is one relating to the exclusion of a question asked of a witness, as to whether the deceased had not stated “ that he could do any one that he wanted to, and that-nothing could be done to him, because he was supposed to be crazy.” The court, we think, properly excluded this, upon the ground that it was not said with reference to the defendant, nor had it any relation to him, but was a general remark at some time made by the deceased, and could have no bearing and effect as showing motive or ill will on the part of the deceased towards the defendant which would evidence design upon the defendant’s life.

We might, at greater length, have referred to the testimony, notably that presented by the defendant to establish the defense of justifiable homicide, but no useful purpose would be served thereby; it being sufficient to advert to so much of the evidence-as disposes of the contention that it was only susceptible of a verdict of murder in the first degree, or of justifiable homicide. As shown, there was sufficient upon the testimony adduced by the defendant’s witnesses to justify the verdict of manslaughter in the first degree. Upon examining the record, we can find no good reason for disturbing such verdict, which is amply supported by competent evidence, rendered upon a trial in which every right to which the defendant was entitled was secured by a fair and impartial charge of the trial judge, and by the application of correct principles to rulings upon the admission and rejection of evidence, and to the facts as proved. We are of opinion, therefore, that the judgment of conviction should be affirmed.

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


text:
    In the Matter of the Judicial Settlement of the Accounts of Elizur V. Foote et al., as surviving Executors of Henry Valentine, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Executoks and administbatobs — Accounting.
    In a proceeding to compel surviving executors to account for the balance due a deceased executor and residuary legatee, one of the surviving executors testified that there had been a division of the mortgages belonging to the estate, of which the deceased executor had received his share. Meld, that such testimony did not establish a final accounting a d settlement of the estate, so as to prevent the surviving executors from showing that the deceased had received more than his share of the personal property of the estate.
    Appeal from a decree of the surrogate of the county of New York, settling the accounts of the executors.
    The contestants claimed and endeavored to prove that in September, 1884, during the lifetime of George W. Valentine, a settlement was had between himself and the two other devisees and legatees, in which all the estate which was then capable of division was divided between them after payment of the debts, and that certain real estate at Islip, L. I., afterwards sold for $20,000, and at Greenville, N. J., afterwards sold for $3,175, and a few hundred dollars in bank, were left to be distributed when converted into money. This real estate was not sold until after the death of George W. Valentine, and it was further urged by the appellants that this accounting should begin at the settlement of September, 1884, and should not include any matters of prior date, and, upon this theory, that upwards of $20,000 still remains in the executors’ hands to be accounted for. The question of this settlement is the only point raised on this appeal.
    The only witness to the alleged settlement called on the trial was the executor, Mr. Foote. There was some testimony on the part of two of the contestants in regard to a conversation had between them and Mr. Foote subsequent to the death of George W. Valentine, in which, as they testified, Mr. Foote had made some statement from which it might be inferred that the Islip farm having been sold, there was some money in the possession of the executors, in which the next of kin of George W. Valentine were entitled to share. Mr. Foote was asked by the contestants: “ Question. Did you and Mrs. Stokes and Mr. George W. Valentine come to a settlement in regard to the personal property of Henry S. Valentine before George’s death ? A. Yes.

      “ Q. When was it? A. I think sometime in September, 1884.
    “Q. Is that the correct date? (Showing paper.) A. September 20th? Yes. We had an accounting to that date down to Mr. Thayer’s office.
    “Q. Did you and Mrs. Stokes and Mr. Valentine have an accounting between yourselves of the personal estate of Henry S. Valentine, down to that date ? A. Yes, sir.
    “Q. Everything was settled between you, a sregards the personal ■estate of Henry S. Valentine, except the Greenville and Islip property ? A. The day we had that settlement ?
    “ Q. Answer my questions. A. On that day we made the settlement, September 20th, we had a settlement of the personal property of Mr. Valentine.
    “Q. tip to that date? A. That was in bonds and mortgages to that date.
    “Q. And you arrived at certain sums, between you? A. Yes.
    “ Q. And you settled with Mr. Valentine on that basis?' A. On that basis; of his share of some bonds and mortgages outstanding.”
    The witness further stated: “ I took my books, and went down to Mr. Thayer’s ; I left them there, and he made up a statement of how things stood; and Mr. Valentine wanted some money to purchase a house on Eightieth street, and he had to have it within a few days; we went there and borrowed some money on a note, and paid him his share down to him, and closed the whole thing up ; that closed up the personal estate, as far as the bonds and mortgages were concerned. ” “ The amount paid upon that ■occasion to Mr. Valentine, as his share of the bonds and mortgages referred to, was $7,666.66.”
    Witness further testified:
    “ Q. I want you to explain your answer to Mr. Malcolm, when he asked you, ‘And you settled with Mr. Valentine on that basis ? ’ and you answered, 1 On that basis ; of his share of some bonds and mortgages.’ A. I settled with Mr. Valentine for his one-third share of the bonds and mortgages that we had in our possession at that time.
    “ Q. State what they were. A. There was a $14,000 mortgage, a $5,000 mortgage, two mortgages of $2,000 each, and I paid Mr. Valentine his one-third of those mortgages; I gave that to Mr. Valentine, more as an accommodation.
    “ Q. You say, in answer to Mr. Malcolm, referring to the date, September 20th, as to the receipt for $7,666, that there was a settlernent between you and Mr. Valentine on that date; a settlement of what ? A. A settlement of those four bonds and mortgages, $14,000, $5,000, and two of $2,000 each, and which made $23,000.
    “ Q. That is all that is included in that settlement? A. Yes, sir.
    “Q. Were any advances made to Mr. Valentine, if any, prior to that included in that settlement? A. No, sir; those advances were not in that $7,666.
    “ Q. Any such advances had nothing to do with that settlement? A. No, sir.
    “ (Witness is shown the answer made by him in the proceedings before the surrogate, put in evidence by Mr. Malcolm at the last hearing.)
    “ Q. What settlement do you refer to in that answer ? A. That settlement refers to the bonds and mortgages which I have just referred to.”
    The testimony of John Valentine and Joseph E. Peck, contestants, as to a conversation between them and Mr. Foote, in which they allege that Mr. Foote informed them after the sale of the Islip property that there was some money in the hands of the executors, “ waiting for the heirs,” is contradicted by Mr. Foote : “Mr. Valentine and Mr. Peck came to 127 Canal street, where I have an office, and asked me about the sale of the Long Island property; 1 told them that it was sold for $20,000, and in the course of the conversation they asked me how my account stood with Mrs. Valentine and the Peck folks; they said they thought they were entitled to something out of Mr. Valentine’s estate, if there was anything; I told them that Mr. Valentine’s account, according to the price of the farm, was overdrawn; that Mr. Valentine’s account had been overdrawn anywhere from $500 up; that I would close up the estate, and if there was anything that they were entitled to, I would see that they were paid ; John Valentine and myself had that same conversation several months before.”
    By Mr. Malcolm: “ Q. What mortgages did you say those were? A. A mortgage for $14,000, a mortgage of $5,000, and two mortgages of $2,000 each.
    “ Q. Were they assigned to you and Mrs. Stokes at the time of this settlement ? A. About that time.
    “ Q. Before or after ? A. After.
    “Q. The $5,000 mortgage was made by Mr. Thayer? A. Yes, sir; originally by Mr. Thayer; I told Mr. Valentine on several occasions, possibly twenty times, that Mr. Valentine had overdrawn his account; Mr. John Valentine ahd Mr. Peck came to me at Canal street one day, and asked me about the sale of the Long Island property just after the property had been sold, and I told them the amount of the sale; that I had the money, some of it, in the trust company, and that I was going to close up Mr. Valentine’s account, and then, if there was any money due them, meaning Mr. Peck and his brothers and sisters and Mrs. Valentine, that they were entitled to iL”

      • Contestants, for the purpose of proving that a settlement had taken place between George W. Valentine and the executors on September 20, 1884, relied principally upon an affidavit made by Mr. Foote in a proceeding in the surrogate’s court, that “ the said personal estate, and every part and parcel thereof, was accordingly, in the lifetime of said George, and shortly after the death of said testator, amicably, and by common consent divided equally among the last three legatees.” It also appeared from that affidavit that the property consisting of the Islip farm had not then been sold ; and for that reason, and others stated in the affidavit, it was claimed that the application then made to compel the executors to account should not be granted. There was no evidence as to what was done with the application, and no order disposing of the application was produced.

      James F. Malcolm (J. B. Lockwood, of counsel), for app’lts; J. Delahunty, for resp’ts.
   Van Brunt, P. J.

We see no reason for interfering with the conclusion arrived at by the learned surrogate in the court below. The testimony upon the part of the appellants, which was relied upon for the purpose of showing that there had been a final settlement between the parties of the accounts of the executors in reference to the personal estate, so that the question as to the appellants’ predecessor having been paid more than his share of such personal estate could not be investigated in this accounting, seems to be entirely inconclusive, and insufficient to deprive the respondents of the right to claim upon this final accounting that such overpayment had been made. It is true that, by taking isolated expressions from the testimony of the executors, such a conclusion might be reached; but when we consider the testimony as a whole, and the acts done, it is apparent that the claim that there was only a division of certain mortgages belonging to the estate, of which the appellants’ predecessor received his one-third share, is well founded.

The testimony of the witnesses Valentine and Peck in no way conflicts with the claim now presented upon the part of the executors. The mere statement that certain real estate had been sold, and the money was in bank, waiting for the heirs, did not in any way assume to represent what the interest of such heirs might be upon the final settlement of the estate. The circumstance that the amount received by the appellants’ predecessor, George W. Valentine, at the time of this alleged settlement, was just one-third of the mortgages in question, is a much stronger circumstance against the idea of a final settlement of the accounts of the executors in respect to the share of the appellants’ predecessor in the property than is the alleged admission of the executors that they were holding the proceeds of the real estate sold by them for the heirs in favor of such settlement. In fact, upon a reading of the whole of the testimony, there does not seem to be any proof whatever that any such final settlement was had. And certainly by what, at most, are only equivocal statements of one of the executors upon the stand, the persons interested in the estate of the testator, other than the representatives of George W. Yalentine, cannot be deprived of their share in this real estate. And when these equivocal statements are explained, upon the attention of the witness being called to them, there seems to be no basis left for the claim made by the appellants.

The decree appealed from should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


author: Follett, J.-

text:
    In the Matter of the Arbitration of Charles F. Beach, Jr., App’lt, v. Simon Sterne, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Arbitration — Award.
    A document delivered by an arbitrator, stating at length his views on the various questions involved in the controversy, written at the special request of one of the parties, without objection by the other, and received by both parties as an opinion, and concluding with the words “ as a result the arbitrator decides that B. has no claim upon 8., and tue amount stipulated as being due should be paid by B. to S.” is not an award within the meaning of the Code, and does not render the arbitrator functus officio and incapable of making a valid award, duly executed as required by law.

      (Flannery v. Sahagian, 134 N. Y., 85; 45 St. Rep., 598, distinguished.)

      2. Same — Estoppel.
    The party requesting the arbitrator to give his views on the question involved is estopped from claiming that the opinion so rendered is an award.
    Appeal from an order of special term confirming an award of an arbitrator and ordering judgment for the respondent against the appellant, and from the judgment entered in pursuance of said order.
    May 27, 1892, the parties entered into an arbitration, pursuant to title 8 of chapter 17 of the Code of Civil Procedure. The arbitrator took the evidence and heard the arguments offered in behalf of the litigants. Afterwards, and on the 19th of July, 1892, he wrote the attorneys for the parties, suggesting “ that it might be ad visible to decide it, the controversy, in favor of one party, as against the other, without giving any reasons, findings or indulging in any comments. * * * if both parties insist upon it, I shall give my views, in wilting, upon the various issues.” The attorney for Mr. Sterne replied, “I shall be entirely satisfied to have the case of Beach v, Sterne decided without opinion.” The counsel for Mr. Beach wrote “ I cannot feel that it would be just to my client, whether the decision is in his favor, or against him, if he does not receive from you a full statement of your view of the case, your conclusions as to the facts, and the reasons which have led to your final determination.” August 3d, the arbitrator wrote the attorney for Mr. Beach that he had been out of the city for three or four days, and also stated: “ Prior to my departure, I dictated an opinion in the Matter of Beach v. Sterne, deciding adversely to your client.” On the same day Mr. Beach’s attorney replied, stating, among other things: “ I have just received your note of to-day. * * * At the same time, I cannot help feeling that Mr. Beach is entitled to the opinion which I felt it my duty to ask you to give. Will you kindly have your stenographer make a copy of it and inclose it to him, Beach, at his office in the Mills building?'”
    On the same day the arbitrator delivered a document to the appellant, which he acknowledged under the date of August 8th, as follows: “I have received copy of your opinion, dated August 3, 1892, in the above entitled matter. Mr. Turner, who went away on his vacation before the opinion reached us, and who will be absent until about the first of September, asked me to write you, for him, when the opinion came to hand, acknowledging its receipt, and requesting you to do him the favor to reserve until his return opr right to ask for a reargumeut. We shall, if Mr. Turner, upon consideration, determines that it is proper, make such a motion as soon after he gets back as it is possible to prepare the papers.” The document concludes as follows: “As a result, the arbitrator decides that Mr. Beach has no claim upon Mr. Sterne, and that the amount stipulated as being due should be paid by Mr. Beach to Mr. Sterne. ” This document was signed by the arbitrator, but not acknowledged. September 3, 1892, the arbitrator signed, sealed, and duly acknowledged an award, as required by § 2372 of the Code. Afterwards the attorneys for Mr. Sterne moved, on notice, at special term, for an order confirming the award. Mr. Beach, upon an affidavit made by himself, setting forth substantially the foregoing facts, opposed the confirmation, upon the ground that the powers of the arbitrator ceased upon the delivery of the document dated August 3, 1892. The award was confirmed at special term, and a judgment ordered.

      Herbert B. Turner, for app’lt; E. Ellery Anderson, for resp’t.
   Follett, J.-

The rule is well settled that when an arbitrator has delivered his award his power is at an end. Flannery v. Sahagian, 134 N. Y., 85; 45 St. Rep., 598. The document of August 3d, signed by the arbitrator, discusses the question of fact involved in the litigation upon the decision of which the rights of the parties turned. It is, in matter and form, an opinion, and differs as widely from an award as a judicial opinion does from a formal decision, which is the basis of the judgment to be entered ; and it is apparent from the correspondence between the arbitrator, the attorneys for the parties and Mr. Beach, that all of them understood that it was intended as an opinion. They all speak of it as such, and it was at the request of _Mr. Beach and his attorney that a written opinion on the merits was delivered.

The opinion was not authenticated in the mode required by § 2372 of the Code so that a judgment as provided for in the submission could be entered upon it. The arbitrator, at the request of the appellant, delayed further action until after the first of September, when his attorney would return to the city; and under such circumstances he should not be heard to say that the opinion was a formal award, and that the arbitrator was without power to make one in accordance with the statute. Had the document of August 3 been intended by the arbitrator to be a final award, and delivered to the parties or their attorneys, and accepted by them as such, the position oE the appellant would be tenable. But it was not so intended by the arbitrator, or so understood by counsel ; and the judgment entered pursuant to the order of the special term should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    James V. S. Woolley, App’lt, v. Marie Friedlander, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Vendor and purchaser — Construction op contract.
    A contract for the sale of land contained no reference to incumbrances, and provided that the vendor should erect a house on the land. It also provided that the purchaser should have the privilege of altering any trimmings or fixtures, “provided such alterations do not increase cost of said house, excepting where increase of cost shall be borne by purchaser.” By reason of certain proposed alterations the house was not completed at the time specified. Held, that the words “increaseof cost ” of the house did not include interest on a prior mortgage accruing after the date fixed for such completion, which the vendor was compelled to pay, nor taxes which should have been levied before, but which, by accident, were not imposed until after said date.
    Appeal from a judgment entered upon an order dismissing the complaint in an action upon contract.

      Richards & Brown (J. Tredwell Richards, of counsel), for app’lt; Cardozo Bros. (B. N. Cardozo, of counsel), for resp’t.
   Van Brunt, P. J.

The plaintiff in this action, being the owner of a certain lot of land in the city of New York, entered into a contract with the defendant for the sale to her of said lot of land with a building to be erected thereon in accordance with certain plans and specifications. The house was to be completed, and payment for it to be made, and the deed delivered, on September 1, 1887. This contract contained the following clause :

“ It is further agreed that the purchaser shall have the privilege of altering any of the trimmings or fixtures of said house, provided such alterations do not increase cost of said house, excepting where increase of cost shall be borne by purchaser.’’

Certain alterations were suggested by the defendant, in consequence of which it was impossible to finish the house by the first of September, as provided by the contract, and the title was passed on the 20th of October. The plaintiff claimed that by reason of the delay caused by the alterations the taxes for the year 1887 on the property became due, and the plaintiff was obliged to pay them under the contract; also, Croton water rent; and, also, cer-. tain interest had accrued upon a mortgage of $20,000, which interest had not accrued on the first September, when the time for the completion of the work had arrived. It is claimed that these, under the clause of the contract in question, were items of increase in the cost of the house. It seems to us perfectly apparent that no such items were in contemplation of the parties at the time of the entering into of this agreement. The increase of the cost of the house did not apply to taxes and the interest upon incumbrances, which were assessed against the land and not against the house, because the house was not in existence at the time the assessment was fixed.

And it is further apparent that, as far as the taxes were concerned, they were not in contemplation of the parties as liable to become liens upon the land after the 1st of September, because, under the law, if the public officials connected with the levying of the tax had performed their duties in the time prescribed by statute, such tax would become a lien on or before the first Monday of September in the year in question, as the statute requires that on or before said day in each year the board of aldermen shall deliver the assessment rolls to the receiver of taxes, together with their warrant directing and requiring him to collect from the several persons named in such rolls the sums set opposite their respective names. The fact that by accident during this year the delivery of the assessment roll to the receiver of taxes was delayed by the board of aldermen cannot increase the claim of the plaintiff under the terms of the agreement, which contemplated no such contingency. And, in view of the agreement itself, which contains no references to incumbrances upon the property, it may very well be claimed that the plaintiff had become liable, because of his ownership of the property, to the payment of these taxes long before the 1st day of September named in the agreement, under the principles laid down in Rundell v. Lakey, 40 N.Y., 513, and approved in Matter of Babcock, 115 N. Y., 450; 26 St. Rep., 382. We think that the items sought to be recovered in this action cannot, in any sense, be deemed an increase in the cost of the house, but, as already suggested, if they applied to anything, they applied to the land. There seems to be no reason for disturbing the judgment, and the same should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    Frederic N. Blanc, App’lt, v. Elizabeth L. Blanc, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Divorce — Supplemental answer — Adulteries committed pending action.
    In an action for divorce adulteries comitted by the plaintiff after suit brought may be pleaded, by leave of court, both as a counterclaim and as a defense.
    Appeal from an order granting a motion of the defendant for leave to interpose and serve a supplemental answer to the amended complaint of the plaintiff, in an action for divorce.
    This action, for a divorce on the ground of adultery, was begun May 3, 1892, by the service of a summons and complaint. June 27th an amended complaint was served, which was answered July 23, 1892, three defenses being interposed : (1) A general denial; (2) condonation: (3) adulteries on the part of plaintiff, which were set up as a defense and as a counterclaim, affirmative relief being demanded. July 29th issue was joined by the service of a reply, in which the allegations of adultery in the answer were denied. In October both parties noticed the cause for trial at a special term, and it was placed on the calendar. November 16th the defendant moved for an order permitting her to plead, by a supplemental answer, as a defense and as a counterclaim, adulteries alleged to have been committed by the plaintiff, since this action was begun, with women other than those mentioned in the original answer.

      A. J. Dittenhoefer, for app’lt; William P. Burr, for resp't.
   Follett, J.

Before the Codes, material facts occurring after issue joined could be interposed by way of defense, mere matter of resistance to the plaintiff’s cause of action, in an action at law, by a plea puis darien continuance, Grab. Pr., 296, or, in a suit in equity, by a supplemental answer or by a cross bill. 2 Barb. Ch. Pr., 255 ; Story Eq. PI, § 903. Section 544 of the Code of Civil Procedure provides that the court may permit a party “ to make a supplemental complaint, answer, or reply alleging material facts of which he was ignorant when it, his original pleading, was made.” The power of the court to permit the defendant to plead as a defense acts of adultery committed by the plaintiff since the action was begun cannot be doubted. Can such acts be pleaded as a counterclaim ? It will be observed that the section of the Code above referred to does not limit the use of facts interposed by a supplemental answer to the establishment of a defense to the plaintiff’s alleged cause of action. In an action for a divorce the defendant may plead the adultery of the plaintiff as a defense and as a counterclaim ; and if proved, the defendant being innocent, a divorce may be denied the former, and granted the latter. Code Civil Proc., § 1770.

The right being given to the defendant to plead and prove the adultery of the plaintiff, though committed subsequent to the commencement of the action, it is difficult to see any good reason for denying the defendant affirmative relief. The defendant having been found innocent, and the plaintiff guilty, of the matrimonial offense, why should the judicially established facts be available only as a defense, when, by granting complete relief, justice is done in one action, and the delay, expense and scandal of a second suit is avoided? Public policy, the interests of society and of the litigants alike demand that the rights of the parties should be determined in a single action, unless by so doing some statute or rule of procedure settled by reported cases is violated. Ho statute has been cited, nor have we been able to find one, which prohibits the granting of such relief. The precise question involved in the case at bar could not have arisen in this state before the Code of 1848, because our court of chancery never assumed the power to grant the innocent defendant a divorce for the adultery of the plaintiff, no matter whether it was committed before or after suit brought. Such relief was only attainable by an original or by a cross bill. In Milner v. Milner, 2 Edw. Ch., 114, the application of the plaintiff for leave to file a supplemental bill alleging acts ‘ of adultery by the defendant after the filing of the original bill was denied. This case was followed in Morange v. Morange, 2 N. Y. Law Bul., 30. In Smith v. Smith, 4 Paige, 432, it was . held that, in case a plaintiff committed adultery after suit brought for a divorce, leave should be granted the defendant to set up the fact as a defense by a supplemental answer or by a cross bill. This case was followed in Strong v. Strong, 3 Rob., 669; 28 How. Pr., 432. When the last case was decided it was a disputed question whether, under the old Code, affirmative relief could be granted in such an action to a defendant, J. W. B. v. F. D. B., 11 N. Y. Leg. Obs., 350; Anon., 17 Abb. Pr., 48; Leslie v. Leslie, 11 Abb. Pr., N. S., 311; Fullmer v. Fullmer, 6 N. Y. W. Dig. 22, 42; R. F. H. v. S. H. 40 Barb., 9, and the report of the case does not show whether the fact was allowed as a counterclaim as well as a defense. In Cornwall v. Cornwall, 30 Hun, 573, which was an action for a limited divorce, the plaintiff was granted leave to file a supplemental complaint alleging acts of cruelty committed after the commencement of the action, but it was intimated that the subsequent acts were proper in characterization of the earlier acts. This case is in harmony with the decisions in some of the states which hold that acts of adultery, committed after suit brought by the defendant with the person charged in the original pleading as a jjarticeps criminis, may be pleaded and proved for the purpose of characterizing their previous relations. Browne Div. & Alim., 53. See also, Borham v. Borham, L. R., 2 Prob. & Div., 193.

The question now before the court was not decided in any of the cases cited, nor were the questions discussed in them nearly related to the point involved in the case at bar, but they are the only decisions found in the reports of this state which throw light on this controversy ; and there being no statute or decision in the way, we are of the opinion that, under the Code of Procedure-adulteries committed by a plaintiff after suit brought may bo pleaded, by leave of the court, both as a counterclaim and as a defense. The ecclesiastical courts of England gave affirmative relief to defendants. 2 Bish. Mar., Div. & Sep., § 559, and when acts of adultery were committed by either party subsequent to the commencement of the action, they could be alleged by a supplemental bill or answer, and if proved were given the same force as though alleged in the original pleading, Barrett v. Barrett, 1 Hagg. Ecc., 22; Webb v. Webb, id., 349; Middleton v. Middleton, 2 Hagg. Ecc., Supp., 134 Brisco v. Brisco, 2 Addams Ecc., 259. In New Hampshire a supplemental complaint may be filed alleging acts of adultery committed after suit brought, which, if established, are a ground for a divorce. Adams v. Adams, 20 N. H., 299. In Kentucky, grounds for a divorce a mensa et thoro, and for alimony, not existing when the original bill was filed, may be alleged in a supplemental bill, and if proved will support a decree. Butler v. Butler, 4 Litt. (Ky.), 202; Logan v. Logan, 2 B. Mon., 142-148; McCrocklin v. McCrocklin, id., 370. Without attempting to reconcile Wheelock v. Lee, 74 N. Y., 495, and Mackellar v. Rogers, 109 id., 468; 16 St. Rep., 406, or to distinguish them from the case at bar, we think that the fact that both parties noticed the action for trial at a special term did not deprive the court of power to permit a supplemental answer to be served. All of the issues involved in the action, including those joined by the original and supplemental pleadings, must be tried before a jury, unless both parties waive such a trial. Part of the issues should not be tried before the court without a jury, and the remainder before the court with a jury. There is nothing in the-record which would justify this court in holding contrary to the decision of the special term, that the motion was not made in bad faith and for the purpose of delay. When the order was granted the case had been pending but six months, and it does not appear that the defendant was negligent in not moving at an earlier date. The order should be affirmed, with ten dollars costs and printing disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    The People ex rel. Frederick S. Heiser, Ex’r, App’lt, v. Edward Gilon et al., Assessors, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Certiorari — Return—Change of grade of street — Laws 1872, chap. 729.
    Upon certiorari to review the action of commissioners in determining-the damages sustained by property owners by a change of grade, pursuant to chap. 729, Laws 1872, the board should not be required to state the items composing the aggregate award, or the methods by which they arrived at their conclusion.
    Appeal from an order amending a writ of certiorari by striking out all the particulars in reference to which a return was directed to be made.
    In the year 1857, Mrs. Christina E. Smith, of whose will relator is the executor, became, by purchase,-the owner of certain lots between and on Ninety-first and Ninety-second streets, in the city of New York. A portion of the property purchased, comprising eight lots, extended the whole length of the block between Ninety-first and Ninety-second streets, on Eighth avenue; and at the corner of Ninety-second street, standing upon a portion of two lots, Mrs. Smith, in the year 1861, built a dwelling house. There were, from time to time, up to the year 1875, changes of the grade of Eighth avenue authorized, of which authorized changes two were physically worked. The last of these changes in the grade of Eighth avenue was authorized by chapter 593 of the Laws of 1870 ; the grade, under the provisions of this last act, being considerably lowered. While the work of regrading Eighth avenue under the act of 1870 was still in course of completion, the legislature passed a law, chapter 720 of the laws of 1872, which has. been, and now is, the authority under which the assessors have acted, and the appellants litigated their claim for damage through our courts, back and forth, for nearly twenty years.
    The act referred to is, in terms, as follows: “ Section 1. The board of assessors of the city of New York are hereby authorized and directed to assess upon the property intended to be benefited by the regulating, grading and improving Eighth avenue, between Fifty-ninth street and One Hundred and Twenty-second street,, the amount of damage or injury which each owner of a building or buildings erected on land fronting on said avenue or street has or will sustain or suffer by reason of such changes of grades and plan of improvement of said avenue heretofore authorized or directed to be- made by the legislature, or any officer or board in the city of New York, and shall make and file in the finance department of said city a just and equitable statement and award of the amount of such damage, loss or injury to the owner or owners of such building or buildings on lands fronting on such street or avenue, and opposite thereto, and affected by such change of grade; and the amount of such award shall be included in the 'expense of regulating, grading and improving said avenue, and, with such expense for regulating, grading and improving said avenue, shall Be assessed, as provided in and by the one hundred and seventy-fifth section of the act of April nine, one thousand eight hundred and thirteen, entitled ‘An act to reduce the several laws relating to the city of New York into one act.’ Sec. 2. The comptroller of the city of New York is hereby authorized and directed to issue assessment bonds of said city to pay the amount of such loss or damage so assessed by said board of assessors, together with such an amount as may be necessary to pay the expenses or costs that have been, or may hereafter be, necessary for the regulating, grading and improving said avenue.” Under the provisions of this act the former board of assessors made an award, afterwards set aside by the court of appeals; and under that decision the present board of assessors proceeded to take proof of damage alleged to have been suffered by the appellant, and make an award therefor.
    At the first hearing before the board of assessors, a stipulation was made that the transcript of the stenographer’s minutes of the evidence taken should be sworn to by the witnesses on the part of the claimant and on the part of the city, at the close of the hearing, and before submission to the board of assessors. This stipulation was observed. Sessions extended over a period intervening between June 29, 1891, and December 23d of the same year. The award itself was not made until May 6, 1892. The award being unsatisfactory to the claimant, he applied, ex parte, for a writ of certiorari to review the action of the board of assessors. A writ was granted by Mr. Justice Lawrence on the 21st day of July, 1892. Upon application made in behalf of the assessors, Justice Andrews granted an order to show cause why the writ granted by Mi; Justice Lawrence should not be amended by striking therefrom so much of it as required the assessors “ fully and specifically to state and certify whether, in making the statement and award filed by them with the said comptroller, they allowed, or declined to allow, as proper elements of damage, and, if they did so allow, in what sum, and in what manner, the following several items of damage, loss or injury suffered or sustained by the said relator, and whether or not, and how much, if any, they have awarded for each thereof, to wit: (1) The damage to the house by the different changes of grade; (2) the expense of reducing the surface of the land to the grade of the avenue ; (3) the expense of protecting the land by a wall, and of building steps; (4) the amounts paid, for assessments for grading, as evidence of the amount of damage to that extent, and as part of the damages ; (5) the difference in the value of the property at the reduced grade and at its original grade; (6) the injury caused by the disorder of the avenue while the diEerent grades were being executed; and, also, (7) whether or not, in making such statement and award, they considered the benefits to said property arising by said changes of grade, and, if so, in what manner and amount, and to what extent; (8) whether or not, in making said statement and award, they considered the damage to the property as a plot of ground bounded by Eighth avenue, Ninety-first and Ninety-second streets, as in the claim set forth, or only part thereof, and what part; (9) whether or not they considered the damage to the land appurtenant to the house as one messuage, or to the two lots on which' the house stood, or to the house alone; (10) in making said statement and award, from what elevation to what depression, in feet and inches, the said board considered the grade of said avenue had been reduced, and what diEerent changes of grade in said avenue they so considered; (11) whether or not, in making said statement and award, they considered the evidence produced by the municipality as to the damage caused by changes of grade; (12) whether or not, in making said statement and award, they estimated the- change of grade from its natural elevation, or from the grade established by any law, and, if the latter, what law or grade; (IS) whether or not they considered that the elimination of view had from said premises, caused by the change of the grade, was a damage, and, if so, how much they awarded the relator therefor.” The motion came on to be heard at a special term, before Mr. Justice Beach, upon whose decision an order was entered, amending the writ by striking out all of the matter, complained of. From this order of Mr. Justice Beach, the claimant appeals.

      H. M. Whitehead, for app’lt; Wm. H. Clark (James M. Ward and Terence Farley, of counsel), for resp’ts.
   Per Curiam.

We do not think that the board of assessors should be required to give a bill of particulars of the items composing the aggregate award, or to state the methods by which they have arrived at their conclusion.

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

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


text:
    In the Matter of The Metropolitan Elevated Railway Co., Resp’t. In re Jones et al.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Condemnation proceedings — Appeal.
    An appeal from an order confirming the report of commissioners to appraise damages for land taken by a railroad does not bring up for review any errors committed before the commissioners; to raise these questions the award must be appealed from.
    Appeal from order confirming report of commissioners awarding nominal damages to the property owners.

      Morrison & Kennedy, for app’lts; Davies, Short & Townsend (Edward C. James, Julien T. Davies and Sidney Smith, of counsel), for resp’t.
   Per Curiam.

This proceeding was begun October 21, 1889, and is not affected by chapter 23 of the Code of Civil Procedure, which' went into effect May 1, 1890. The appeal from the order of confirmation does not bring before this court for review any errors committed before the commissioners who were appointed to assess the damages. In order to raise these questions, the-award must be appealed from as prescribed by § 18, chapter 140 of the Laws of 1850. We think, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., OBrien and' Follett, JJ., concur.


text:
    William O. Hart, App’lt, v. Augustus Bernau, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Attachment — Affidavit.
    An affidavit for an attachment which states that "giving to defendant all proper credits, the said sum is justly due and owing and has not been paid," is insufficient to show the non-existence of counterclaims,as a counterclaim may arise out of other or independent contracts.

      2. Same.
    The grounds for an attachment are not strengthened in such case by an affidavit of plaintiff’s attorney, stating that there are no counterclaims to-the knowledge of plaintiff or deponent, where it appears that his only-knowledge on the subject is derived from the plaintiff’s affidavit.
    Appeal from an order vacating and setting aside an attachment

      W. T. Houston, for app’lt; A. Edward Woodruff (Henry P. Butler, of counsel), for resp’t.
   Per Curiam.

This action was brought to recover the balance-due on an open account. The parties reside in the state of Louisiana. The attachment was granted on the summons and affidavit verified by the plaintiff October 10, 1892, an affidavit verified by his attorney October 14, 1892, and the usual undertaking.- The-complaint was verified by the attorney October 31, 1892, some days subsequent to the date of the warrant of attachment The motion to vacate the warrant was made on the papers on which it was granted. The first subdivision of § 636 of the Code of Civil' Procedure provides : “ To entitle plaintiff to such a -warrant (of attachment), he must show by affidavit to the satisfaction of the-judge granting the same, as follows: * * * If the action is to recover damages for bread i of a contract, the affidavit must show that the plaintiff is entitled to recover a sum,-stated therein, over and above all counterclaims known to him.”

A cause of action in favor of a defendant arising out of (1) the contract or transaction set forth in the complaint, or (2) out of another or independent contract, is a counterclaim, within the meaning of the Code of Civil Procedure. Section 501. The affidavit of the plaintiff contains the following statement: “ That, giving to him (defendant) all proper credits, the said sum of $8,528.87 is justly due and owing, and has not been paid, notwithstanding amicable demand.”

Even if this statement negatives the existence of a counterclaim of the first sort, arising out of the contract or transaction on which the suit is brought, it is wholly insufficient to show the nonexistence of the second sort of counterclaim, arising out of other or independent contracts.

The affidavit of the attorney states:

“ Second. That on information and belief August Bernau, the said defendant, is justly and truly indebted to the plaintiff in the full sum of $8,523.87, with interest at the rate of five per cent per annum from the 1st day of October, 1892, upon the following facts, to wit: That the said plaintiff lent moneys to the said defendant, and paid out moneys for him and at his request, and rendered him services at his request, at various times within the last three years, as per schedule hereto annexed, and made part hereof. That there is no counterclaim whatsoever existing in favor of the said defendant and against the plaintiff, known to the plaintiff, or known to the deponent * * * Sixth. That the grounds of deponent’s belief and the sources of his knowledge are the schedule hereto annexed, containing twelve pages, each page bearing the signatures 'W. 0. Hart,’ and 'M. 0. Soniat, Commissioner for New York,’ and the affidavit of W. 0. Hart, hereto annexed, made at New Orleans, Louisiana, the 10th day of October, 1892, before M. 0. Soniat, commissioner of deeds of the state of New York, and residing at New Orleans, Louisiana.”

The attorney does not assert that he has any knowledge of the claims of the plaintiff, except as it is derived from the affidavit of the plaintiff, and the attorney’s affidavit in no'wise strengthens the plaintiff’s grounds for an attachment. That the plaintiff’s affidavit is insufficient to sustain the warrant has been many times held, and it is unnecessary to cite more than a single authority. Thorington v. Merrick, 101 N. Y., 5. The order appealed from should be affirmed, with ten dollars costs and printing disbursements.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


text:
    In the Matter of the Voluntary Dissolution of The David Jones Co.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Corporations — Election.
    A corporation may hold an election where there is no by-law regulating the same, by giving the statutory notice.

      Appeal by certain stockholders of the David Jones Company from an order dismissing proceedings instituted by them for the voluntary dissolution of the corporation, and vacating an order to show cause, obtained by them ex parte.

      Charles F. MacLean (C.F. Wells, of counsel), for app’lts; Dittenhoefer, Gerber & James (David Gerber and Charles F. James, of counsel), for resp’ts.
   Van Brunt, P. J.

The David Jones Company was organized in 1884. It is alleged upon the part of the appellants that a resolution was duly passed at a meeting of the board of trustees on the 28th of May, 1892, directing the secretary to take the steps necessary to procure a dissolution of the company, and in pursuance of that direction the petitioners, two of the three trustees, on the 3d of June, 1892, obtained the order to show cause which was vacated and set aside by the order appealed from. On the 4th of August, 1892, two months after the making of the order to show cause, the remaining trustee and holder of the majority of the stock of the corporation transferred 600 shares of the capital stock to his attorneys, and thereupon a special meeting of- the stockholders was called by the said trustees, and on the 29th of August, 1892, the said trustee and the persons to whom the said stock was transferred were elected trustees, and such trustees passed, on the 8th of September, 1892, resolutions opposing the proceedings already taken for the vol untary dissolution of the company, and thereupon the motion was made to vacate the order to show cause above referred to, and for a dismissal of the present proceedings. This motion was granted, and from that order this appeal is taken.

It is urged upon the part of the appellants that the transfer of stock to the attorneys of the third and dissenting trustee was illegal, and did not in fact confer upon them, the transferees, the powers of legal stockholders, and that the call for the special meeting of stockholders was insufficient, because, although the call for the special meeting was issued under the provisions of the bylaws regulating elections, and the meeting purported to be held in conformity with the same, the by-laws were absolutely void by statute. The ground upon which it is urged that the transferees of the-stock of the third trustee did not become legal stockholders is because of the provisions of a by-law of the company restricting the transfer of original certificates of stock. The by-law provides that: “Whenever the holder or holders of one dr more of such first or original certificates of stock shall be desirous of transferring all or any of the shares of stock represented by such certifiate or certificates, he or they shall give notice thereof in writing to the secretary. It shall be the duty of the secretary, upon receiving any such notice, forthwith to give written notice thereof to the board of trustees and to the holders of all other first or original certificates of stock as they appear upon the books of the company. The holder or holders of such first or original shares of stock who are desirous of purchasing the shares offered for transfer may bid for or propose to purchase all or any of the shares offered for transfer at a price specified in the resolution to be passed at the first meeting in the months of July and January, respectively, fixing the optional price for the half year next succeding such meeting.”

The by-law further provides that: “In case all bids or proposals made are for less than the apparent real value of the stock, the board of trustees shall cause a certificate to be made that the holder or holders desiring to transfer the stock have complied with article seven of the by-laws, and such holder or holders shall be at liberty to have such stock transferred to any one who will take the same.”

It appears that on the 6th of April, 1889, the said third trustee gave the notice required by the by-law, and such proceedings were thereupon had that a certificate was given on the 13th of May, 1889, by the secretary of the corporation that such trustee had complied with the provisions of the by-laws, and was at liberty to have his stock transferred to any one who would take the same; and thereupon, on the 1st of July, 1889, a new certificate of stock was issued to said trustee, which contained no restrictions whatever upon its transfer. Under these circumstances it is clear, even if such by-law could be enforced, that there had been a compliance with its terms; and that the transferees of said trustee became stockholders, the stock being relieved from the restriction of the by-law. But it is not to be considered that the court in any way expresses an opinion upon the validity of a by-law thus restricting the transfer of stock.

The next point presented is, that the special meeting was irregular, although called in pursuance of the by law, because the bylaw had never been published pursuant to the requirements of the statute. Subdivision 5, § 11, of the general corporation law, chapter 687, Laws 1892, which is substantially the re-enactment of an old statute which has been in force since prior to the Bevised Statutes, 1 Bev. St., 603, § 6, provides that no by-law regulating the election of directors or officers shall be valid unless published for at least two weeks in a newspaper in the county where the election is to be held, and at least thirty days before such election. And the question is presented whether the corporation can hold an election for trustees where there is no by-law regulating the same. Upon an examination of §§ 23, 24, chap. 687, Laws 1892, it will appear that the omission to frame a by-law regulating the holding of elections in no way impairs the right or obligation upon the part of the directors or members of a corporation to provide for such election.

Section 23 provides that, if the directors shall not be elected on the day designated in the by-laws (the law under which the corporation was organized determines how often the directors shall be elected), the corporation shall not, for that reason, be dissolved, but every director shall continue to hold his office and discharge his duties until his successor has been appointed; and by § 24 it is provided that, if the election has not been held on the day so designated, the directors shall forthwith call a meeting of the members of the corporation for the purpose of electing directors, of which meeting notice shall be given in the same manner as of the annual meeting for the election of directors; and if such meeting shall not be called within one month after the failure to elect directors, any member of the corporation may call a meeting for the purpose of electing directors, by publishing notice of the time and place of holding such meeting, at least once in each week for two successive weeks immediately preceding the election, in a newspaper published in the county where the election is to be held, and in such manner as may be prescribed by the bylaws for the publication of notice of the annual meeting, and by serving upon each member, either personally or by mail, a copy of such notice, at least two weeks before the meeting. These requirements of the statute were complied with. The notice was published for two weeks, and the other stockholders were personally served with notice of the election. There being no bylaws, as claimed upon the part of the appellants,, of course there were no provisions of the by-laws to comply with ; and certainly it cannot be claimed that, where a majority of the board of directors refuse to pass a by-law regulating the time and place of an election, they never can be deposed from office, and thus the statute requiring an annual election of the trustees of such a corporation is rendered entirely nugatory. We see no reason for interfering with the order appealed from. The new directors had the same right to stop the proceedings for the dissolution of the corporation that the old directors had to initiate them.

The order should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


author: Daly, Ch. J.

text:
    In the Matter of the Application of John A. Stafford, General Guardian of Edward Mahon, an Infant, for leave to lease Real Estate.

      (New York Common Pleas, General Term,

      Filed March 14, 1893.)

    1. Infants — Proceeding to lease real estate — Parties.
    There is no impropriety in making any relative of the infant a party when the proceeding to lease its real estate is instituted by guardian.
    2. Same — Appeal.
    An order requiring that notice be given to such relative of the hearing before the referee confers upon him the right to appear, to except to the report and to appeal.
    3. Same — Lease—Avoidance.
    A lease given by a general guardian is voidable by his successor.
    4. Same.
    Though the general guardian may avoid such lease by instituting a proceeding to authorize the giving of a new lease, he may reinstate it by acquiescing in the judicial decision that it is not.avoided.
    5. Same — Sale of liquor.
    The court will not direct the guardian, against his objection, to make a lease for saloon purposes in order to obtain a higher rent. As such lease would involve him in personal responsibility under the civil damage act, the guardian must be left to the exercise of his discretion as to the tenants.
    6. Same.
    Where it appears that the old lease reserved a rental less than the present rental value of the premises, and that the assignee of the lease had agreed with his assignor to pay the present rental value,, the final order should allow the guardian to make a new lease with the assignee at the increased rental.
    Appeal by Edward J. Gfonoude from an order of the special term confirming the report of the referee.

      Guggenheimer & Untermyer (M. Weinman, of counsel), for app’lt; Matthew Daly, for Patrick O’Brien, lessee, resp’t.
   Daly, Ch. J.

The order confirming the report of the referee, in which he finds that the lease executed by the former general guardian of the infant is in force and that no sufficient reason exists for ordering a new lease to be made, has been acquiesced in by the present general guardian who instituted these proceedings, and the only appeal therefrom is taken by a person who is said to be an uncle of the infant, but who - has no interest whatever in the matter except such as may be assumed from the family relation, and would seem to be sufficiently protected by the general guardian.

Question is made as to the right of a relative of the infant to be made a party to a proceeding taken by the guardian to lease the infant’s real estate, and to his right to question by appeal the discretion of the guardian, or the court, in making disposition of the proceeding; but I apprehend that no harm can result from admitting such a person as a party to the proceeding; that on-the contrary it affords the court additional means of information by which to arrive at a proper conclusion. The proceeding for the leasing of an infant’s real estate could be instituted by “ any relation ” of the infant, Code Civ. Pro., § 2349, and so there is no impropriety in making any relation a party when it is instituted by guardian.

In this case the appellant Gfonoude was in effect made a party to the proceeding by the special order, not appealed from, requiring that notice be given to him of the hearing before the referee .and that he be heard. This unquestionably conferred the right to appear, to except to the report and to appeal, or it would be ineffectual.

Assuming, then, the right of the appellant, in the interest of the infant, to assail the cor,rrectness of the referee’s decision, and the order confirming it, we are to inquire if they injuriously affect the interests of the infant ? The sole question is whether the general guardian shall take the premises from one party who has hired them for a liquor store and is willing to pay $1,400 per annum, and give them to another party to use for the same business at .$1,800 per annum. At the outset it must be premised that the general guardian is dealing with a lease made by his predecessor, the mother of the infant, who was his general guardian, and is now deceased, and who executed to one Cunningham, on November 10,1891, a lease to commence May 4, 1891, for five years, at $1,200 per annum, with a covenant for a five years renewal at $1,400. This lease was subsequently assigned by Cunningham to one Keane, who assigned it to O’Brien, and the latter swears that he has agreed to pay $1,400 per annum for the first term, and $1,500 for the renewal term; an increase of the rent originally reserved. When this lease was executed there was an outstanding lease of the premises executed by the father of the infant, the then owner of the premises, at the rental of $100 per month, which lease did not expire until March 30, 1892.

The present general guardian had the power to disaffirm the lease made by the preceding guardian and to make a new lease ; for a guardian may lease for a time as long as he continues guardian, or for any number of years within the minority of the infant, subject to being defeated by another guardian being appointed pursuant to the statute. Such lease is voidable by the new guardian. Emerson v. Spicer, 46 N. Y., 594.

It is claimed by appellant that the court was bound to make an order for a new lease because the present guardian has avoided the prior lease by the institution of these proceedings. The referee holds otherwise, and the general guardian acquiesces in that determination. This acquiesence leaves the tenants under the old lease in possession, and the question whether there has been a disaffirmance or not is of no consequence.

Though the general guardian may avoid the lease by instituting the proceeding, he may reinstate it by acquiescing in the judicial decision that it is not avoided ; a decision which binds all parties. If this were not so, any decision of the court upon such a proceeding as the present, except a decision for a new lease, would be wholly nugatory, and to institute the proceeding would require the court, as matter of course, to grant it. But the statute intended, when it provided for an application to the court by the guardian or other party interested, a submission of the questions involved to the sound discretion of the court; otherwise the proceeding would be an idle form. Equitable Life Ins. Soc. v. Stevens, 63 N Y., 341.

As the confirmation of the report that the last lease is in full force and effect binds the guardian during its continuance, the question is whether the rights of the infant have been prejudiced thereby. It is undoubtedly the fact that responsible parties offered $1,800, a larger rent for the premises than the lessees are required to pay. These parties desired to carry on the business of selling liquor. Ho higher rent than $1,400 can be obtained for the property for any other business, so far as appears. Must the court then direct a guardian to make a lease to the parties offering the greater rent for the purpose named ? It is clear that the court is not bound to do so, and further, that the court could not force the guardian to do so by any order it might make. To lease the premises for the sale of liquor involves the guardian in personal responsibility under the civil damage act, and this responsibility cannot be forced upon him by any order of the court. As he is personally liable, he must be left to the exercise of his discretion as to the tenants to whom he will entrust the premises. If, upon his accounting, there should be evidence of bad faith, resulting in loss of rental, he will be answerable; but the court ' will not direct in advance, against his objection, the making of a lease for saloon purposes in order to obtain a higher rent from the premises.

There is, however, a matter which is left in a doubtful shape by the order as it stands. The lease which is declared to be in force reserves only $1,200 annual rent for the term, and $1,400 per annum for the renewal. The referee has found that $1,400 per annum is now the fair rental value of the premises, and the assignee of the lease admitted on the reference that he had agreed with his assignor to pay that amount annually for the term and $1,500 per annum for the renewal term; but no agreement to that effect was produced, and the confirmation of the report as it stands seems to approve of the lease as originally made, although it is for a less rental than is found to be reasonable.

The lease as approved by the referee and the court was not a lease for the rental originally reserved, but was in effect a new agreement for a larger rental. This was, therefore, a new lease, and was what the petitioner asked to be allowed to make, and the final order of the court should have granted his petition and allowed him to make a new lease with the assignee of the outstanding one at the increased rental which the referee found to be reasonable, and which the assignee was willing to pay.

The final order appealed from should be modified by insertin'* a direction as above suggested.

No costs of this appeal to either party.

Bisohoff and Pryor, JJ., concur.