text:
    Charles B. Hubbell and George A. Porter, App’lts, v. Daniel Buhler, Elbert Stannard, Daniel W. Richards and Morton Smith, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Partnership—Duration of—When at will.
    When the duration of a partnership is not fixed by the articles, or is not to be implied from thé circumstances, it is a partnership at will.
    2. Same—When not terminated at will.
    The duration of the co-partnership, in a certain case, was not fixed by the contract, but the combination being for one particular adventure, to be carried out in a mode specifically agreed upon, it must necessarily be implied that the understanding was that the partnership or joint adventure was not determinable at the will of any one of the partners, but that it was to continue until the single enterprise undertaken should be concluded. This being so, part of the partners could not terminate the partnership at will by notice or by suit, but could terminate it only for some one of the recognized causes sufficient in law to authorize courts to wind up partnerships.

      Appeal from a judgment entered upon the decision of a special term dismissing the complaint.

      William G. Tracy, for app’lts; A. B. Dyett, for Buhler & Stannard, resp’ts,
   Follett, J.

Two of the defendants, Richards & Smith, admitted all of the material allegations of the complaint, but did not appeal, and are not represented in this court. The parties to this action are identical with the parties to the written contract of October 13, 1883, which they agree was executed with the mutual intent that it should become operative and binding upon the signatories, in case the defendants purchased the interest of Patrick Clancy in the vessels under the written contract of September 19,1883. As between the parties, the contract of October 13, 1883, was a legal contract; and when the defendants became (October 24, 1883), the owners of Clancy’s interest, said written contract became, and now remains, the measure of the interests, rights, powers and duties of the parties, unless they abrogated said contract by an oral agreement, mutually entered into, Monday, October 22,1883, which the trial court found was not done, which finding, we think, is sustained by the evidence.

By the first and second subdivisions of the contract of October 13, 1883, the vessels were to be stripped to the bare hulls, and all materials so obtained sold, and the bare hulls were to be sold by public auction at such time as the parties might agree. Before this action was begun (March 10, 1885), the vessels had been substantially stripped to the bare hulls, the materials so obtained sold,- and the avails divided between the parties, according to their respective interests. About this time the'parties disagreed as to the manner in which the bare hulls should be disposed of. The plaintiffs, and two of the defendants, Richards and Smith, claimed that, by an oral agreement mutually entered into, October 22, 1883 the bare hulls were to be broken up, and the materials sold. The defendants, Buhler and Stannard, denied the existence of such an oral agreement, and claimed that the bare hulls were to be sold by public auction, "as provided by the second subdivision of tlie written contract or October 13, 1883.

As before stated, the trial court found that an oral agreement was not mutually entered into, and that the written agreement controlled the rights of the parties. There being no other question in dispute in this action, this finding is decisive of the rights of the parties involved in this action, unless the mere fact of the existence of a disagreement between the parties entitled the plaintiffs to demand that the co-partnership shall be dissolved before the one particular enterprise which it was formed to carry out has been completed.

It is immaterial whether the combination formed by the parties is a “joint-adventure” ara ‘ ‘ limited co-partnership, ” (not limited in the statutory sense as to liability, but as to scope and duration) as, under our law, both are governed by the same rules. Pollock’s Part. (3d ed.), 4, 5.

When the duration of a partnership is not fixed by the articles, or is not to be implied from the circumstances, it is a partnership at will. Story’s Part., § 84; 1 Lind. Part. (3d Ed.), 229. In this case, the duration of the combination was not fixed.by the contract, but the combination being for one particular adventure, to be carried out in a mode specifically agreed upon, it must necessarily be implied that the understanding was that the partnership or joint-adventure, was not determinable at the will of any one of the partners, but that it was to continue until the single enterprise undertaken should be concluded. This being so, and it having been well found, as a matter of fact, that the contesting defendants, Buhler and Stannard, had not violated the partnership agreement, but were engaged in carrying it out according to its terms, it follows that the plaintiffs can not maintain this action. Henn v. Walsh, 2 Edw. Ch., 129; Goodman v. Whitcomb, 1 J. & W., 589; Story’s Part., §§ 231, 286, 287, 288; Lindley on Part. (3d Ed.), chap. 8.

This being so, the plaintiffs could not terminate the partnership at will, by notice, or by suit; but could terminate it only for some one of the recognized causes sufficient in law to authorize courts to wind up partnerships. (See authorities above cited.) The only cause alleged in the complaint for winding up, and appointing a receiver of this partnership, is the alleged violation by the defendants, Buhler & Stannard, of an alleged provision in the partnership agreement, which provision, the trial court found never existed. The result of the finding of the trial court is, that defendants Buhler & Stannard, have not been guilty of any misconduct, but were, when this action was begun, engaged in conducting the business of an existing partnership in accordance with the articles of partnership, and that the plaintiffs failing to have the business conducted in violation of the articles of partnership, brought this suit to accomplish that purpose.

The cases relied upon by the plaintiffs are not in point. In McElvey v. Lewis (76 N. Y., 373); Skinner v. Tinker (34 Barb., 333); Peacock v. Peacock (16 Vesey 49), and in Featheratonhauh v. Fenwick (17 id., 298), the partnerships were determinable at the will of either partner. In Law v. Ford (2 Paige, 310), either partner had the right to terminate the partnership at any time, and the articles made no provision for winding up. Marten v. Van Schaick, 4 id., 479, is so meagerly reported that it cannot be ascertained with certainty whether the partnership was at wif or for a fixed term, and if for a fixed term, whether the term had expired; but from the facts reported the fair inference is that the partnership was terminable at the will of either party.

It is urged by the plaintiffs that though a sufficient cause for compulsively winding up this partnership through a receiver midway in its existence did not exist when the action was begun, that a sufficient cause was created by the partial burning of the vessels by the accidental fire of August 22, 1885. Whether the hulls were so injured by this fire that they could not be profitably sold as hulls, wa.s a litigated fact which the trial court found against the plaintiffs.

The court found,

Fifth. “ That the said vessels-, notwithstanding such partial burning, may nevertheless be sold at public auction in their present condition.”

The plaintiffs, by their tenth request, asked the court to find that the hulls were so injured by said fire that they could not be profitably disposed of as hulls, but could be more profitably disposed of by being broken up and the material sold; which the court refused to find. This finding and refusal to find we are not disposed to disturb..

None of the exceptions to the rulings rejecting or admitting evidence upon the trial are discussed by the appellants in their brief, and we have discovered none requiring discussion by this court.

The judgment is affirmed, with costs.

■ Hardin, P. J., and Boardman, J., concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Henry J. Baker and Samuel J. Downs, Resp’ts, v. Warren J. Herkimer, App’lt Erastus A. Taylor and Ellen J. Duffy, Resp’ts, v. Same, App’lt George D. Lathrop, Resp’t, v. Same, App’lt Ward I. Phillips, Resp’t, v. Same, App’lt
    (No. 1).
    (No. 2).
    (No. 3).
    (No. 4).

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    Practice—Supplementary Proceedings—Waiver op irregularity in GRANTING ORDER.
    When the affidavit in proceedings supplementary to execution states all the necessary facts to give the judge jurisdiction to grant an order for the judgment debtor’s examination, arid he appears and submits to the examination and to the appointment of a receiver without objection, it is too late to move to vacate the order upon the gfound that the sheriff’s return upon the execution is defective, when it appears by the judgment debtor’s examination that he has not been prejudiced by the defect complained of.
    Appeal from an order of the county judge of Otsego county denying defendant’s motion to vacate an order appointing a receiver in proceedings supplementary to execution, and to vacate an order directing the defendant to be examined.

      LowellS. Henry, forresp’ts; Walter H. Bunn, forapp’lts.
   Follett, J.

The defendant, in his affidavit of July 6, 1886, swears that he was personally served with the orders for his examination and the affidavits upon which they were granted. Each affidavit states that an execution had been issued, and returned wholly unsatisfied. The affidavits stated all of the facts necessary to give the county judge jurisdiction to grant the orders for the examination of the judgment-debtor, who submitted to the examination and to the appointment of a receiver without raising the objection, that the sheriff’s returns upon the executions were insufficient, in fact or form, to justify the granting of the examination orders, or the orders appointing a receiver. It seems that the judgment-debtor did not suspect that he had property wherewith to pay the judgments, or that his rights were being infringed by the proceedings until he was called upon by the receiver to convey his interest in the farm, when he moved to vacate the orders because the sheriff’s returns failed to state that the defendant had not real estate out of which the executions could have been satisfied. These motions were made in the face of the judgment-debtor’s examinations under the orders; wherein he testified that he had no personal property subject to "execution, and no real estate except an undivided half interest in a farm of 300 acres, which he thought would sell for about ten dollars per acre, (his interest for $1,500), which was subject to a mortgage for $1,200 with interest for about a year, and to the four judgments in these cases, amounting to $237.11.

When the affidavit states all the necessary facts to give the judge jurisdiction to grant an order for the judgment-debtor’s examination and he appears and submits to the examination and to the appointment of a receiver without objection, it is too late to move to vacate the orders upon the ground that the sheriff’s return upon the execution is defective, when it appears by the judgment-debtor’s examination, that he has not been prejudiced by the defect complained of.

In Marx v. Spaulding (35 Hun, 478, S. C. 16 Abb., 309, aff’d 99 N. Y., 675), it appeared that the defect complained of was the act of the judgment-creditor, and the motion to vacate the examination order was made promptly, and before the examination was had. The superior court held, on a return precisely like the one considered in the case last cited, that the defect was not sufficient to vacate the order. Forbes v. Spaulding, 20 J. & S., 166; S. C., 8 Civil Pro. R. 135. This case must be regarded as overruled by the affirmance by the court of appeals of the decision of the supreme court in Marx v. Spaulding.

The fact that the examination showed that defendant held the legal title to heavily encumbered real estate, out of which it was improbable that the execution could have been collected in whole, or in part, is no reason for refusing a receiver. Fenton v. Flagg, 24 How., 499; Bailey v. Lane, 15 Abb., 373.

The executions, or returns in actions Nos. 2 and 3 are not contained in the appeal book and there is no evidence that the returns upon them were not, in all respects, sufficient.

The order refusing to vacate the order appointing a receiver, and refusing to vacate the examination order, is affirmed in ea,ch of the cases, but the appeals having been conducted, as one, the affirmance is with ten dollars costs and printing disbursements in Lathrop v. Herkimer, and without costs in the other cases.

Hardin, P. J., and Boardman, J., concur.


text:
    Mary E. Locklin, Resp’t, v. Clinton Beckwith and John V. Quackenbush, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    Damages—Fob injury to property—Liability for.
    Contractors agreed with the company by which they were employed, that they should be responsible for all damage that might he done to person or property or premises through which the line of the road might pass, in consequence of blasting rocks. Held, that they were responsible for damages from pieces of rock thrown upon the plaintiff’s houses by explosions in blasting on the line of the road.
    Appeal from a judgment for $270.30 damages, entered in Herkimer county, upon the report of a referee.

      H. Clay Hall, for app’lt; Henry Link, for resp’t.
   Follett, J.

In 1881, 1882 and 1883 the defendants were co-partners, and were engaged in constructing The New York, West Shore & Buffalo Railroad through the village of Little Falls, under a contract with The North River Construction Company. During this time the plaintiff was the owner of real estate in said village, and adjacent to the land whereon the railroad was being built, upon which were five dwelling houses. In constructing the road at this ■point, rocks were necessarily blasted, pieces of which were thrown by the explosions upon plaintiff’s houses, causing considerable damage, for the recovery of which this action was brought.

In the contract between the Construction Company and the defendants it was provided: The contractor will be held responsible for all damage that may be done to persons or property, or premises through which the line of road may pass, in consequence of blasting rocks. ” May 31, 1881, defendants contracted with Christopher C. Mowel that they would drill the holes for blasting, and “ cover the holes to prevent damage being done by flying rock from the blasts,” and pay Mowel twelve cents per cubic yard for doing the remainder of the work and furnishing the materials for the blasting. The evidence shows that the blasting was done pursuant to this contract, the defendants assuming to prepare the holes and cover the blasts. It is undisputed that pieces of rock were thrown upon and injured plaintiff’s houses by the explosions. For these injuries the defendants are liable. Hay v. The Cohoes Co., 2 N. Y., 159; Tremain v. The Cohoes Co., id., 163; Losee v. Buchanan, 51 id., 476, 479; John St. Peter v. Denison, 58 id., 416; Jutte v. Hughes, 67 id., 267, 273; 1 Thomp. Neg., 113.

These defendants cannot shift the responsibility for these trespasses to the railroad, the Construction Company, or to Mowel, because neither of these parties were in possession, having sole charge of the work, and thereby solely responsible for the injuries. The trespasses were committed by the defendants’ agents and servants. Plaintiff’s admission that negligence on the part of the defendants in the performance of the work was not claimed, is not a defense to the action. (See cases above cited.) The appellant’s brief calls attention to a single exception taken to the admission of evidence, which is found at folio 188. The evidence was not objected to upon the ground that it was not alleged in the complaint that the cisterns were injured; and no error was committed in allowing .the witness to describe the injuries.

The judgment is affirmed, with costs.

Boardman, J., concurs; Hardin, P. J., not voting


author: Hardin, P. J.

text:
    Andrew J. Fargo and ano., App’lts, v. Louisa A. Helmes, Impl’d, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Costs—When right to, is perfected.
    The right to costs is created by statute, and wholly depends upon it, and the right does not become fixed until the termination of the action or special proceeding.

      2. Same—General lien law—Laws 1885, chap. 842, §§ 14, 25—Right to COSTS IN PROCEEDINGS UNDER LAWS REPEALED THEREBY AND PENDING AT THE PASSAGE OP THE ACT.
    The legislature on May 27, 1885, passed, a general lien law (Laws 1885, chap. 342, $ 25), applicable in the several cities and counties of this state, and repealing certain other acts and parts of acts. This act contains a clause providing that it shall not be construed so as to affect, enlarge, invalidate or defeat any lieu or right to a lien now existing, or any proceeding to enforce such lien, now pending by virtue of any of the provisions of the acts thereby repealed. By section 14 costs are left in the discretion of the court. A proceeding to enforce a mechanic's lien was commenced before the passage of this act and was pending at the time of its passage. Held, that a decision having been made in the matter which was silent upon the subject of costs, costs could not be taxed by the party in whose favor the decision was rendered.
    Appeal from an order of the Onondaga special term setting aside a taxation of costs in favor of plaintiffs.
    Plaintiffs were contractors and builders who had hens as mechanics upon the respondent’s premises, and commenced this proceeding April 14, 1885. Answer was served May 9, 1885. Issues of fact were tried at the Onondaga, February, 1886, special term, and findings of fact and a decision handed down June 12, 1886, which is silent upon the question of costs.
    Plaintiffs taxed costs as in an ordinary action, and entered judgment therefor, which taxation was set aside by special term, which held that as costs were not awarded to the plaintiffs by the trial court they could not tax and have costs.

      Edwin S. Butterfield, for app’lts; Knapp, Nottingham and Andrews, for resp’t.
   Hardin, P. J.

May 27, 1885, by chapter 342 of the Laws of 1885, the legislature passed a general lien law applicable ‘‘ in the several cities and counties,” and repealed certain acts and parts of acts.

The “ Onondaga Act ” and “ the City Act ” referred to in our opinion in Ryan v. Klock (36 Hun, 104), were repealed by section 25 of the act of 1885, and the repealing section contains a saving clause which must be examined and construed in determining the question brought to us by the present appeal.

That clause reads, viz: “But this act shall not beso construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien, now pending by virtue of any of the provisions of the acts hereby repealed, nor to revive any other or former acts or parts of acts repealed by the acts hereby repealed.”

Ho question arises here as to “any lien or right to a lien.” The lien and right to a lien have been established fully by the decision of the special term, given in June, 1886. By-section 14 of the act of 1885 it is provided, “costs and disbursements * *. * shall rest in the discretion of the court.”

Appellants contend that the saving clause found in the repealing act should be so construed as to allow costs to be recovered by the plaintiffs without any award thereof, as a matter of discretion by the trial court. While on the other hand the respondent contends that the rule laid down in the act of 1885, is the only one in force at the time of the decision, and that because the court did not award costs to the plaintiffs, they are not entitled to recover them.

Supervisors v. Briggs (3 Denio, 173), is an authority for holding “the right to costs is created by statute, and wholly depends upon it, and the right does not become fixed until the termination of the suit. That rule was again asserted in Garling v. Ladd (27 Hun, 112), and in Balcome v. Terwilliger, fourth department manuscript opinion, November, 1886.

We are asked to hold that the saving clause in the repealing act leaves in force the former statutes as far as they relate to costs.

The words declaring that the repealing act shall “not be so construed as to affect, enlarge, invalidate or defeat ” any proceeding to enforce such lien now pending by virtue of any of the provisions of the acts * * * are relied upon. But we think they do not aid the appellants.

The “proceeding” to enforce any such lien “now pending” referred to in the statue, is quite obviously the prescribed mode of action for carrying into effect a legal right. In Rich v. Husson (1 Duer, 617), we find an interpretation of the word “proceeding,” which we deem apt and appropriate, and pertinent to the question before us. We quote from the opinion of Duer, J., viz.: “The word ‘proceeding/ both in its popular use and in its technical application, has a definite meaning which we cannot enlarge. It means in all cases the performance of an act, and is wholly distinct from any consideration of an abstract right. A proceeding in a civil action is an act necessary to be done in order to attain a given end. * * * The rules by which proceedings are governed are rules of procedure, those by which rights are established and defined rules of law. It is the law which gives the right to costs and fixes the amount. It is procedure which declares where and by whom the costs, to which a party has a previous title, shall be adjusted or taxed, and when and by whose direction a judgment in his favor shall be entered.”

If the trial court had exercised its discretion and awarded costs to the plaintiffs, it would not thereby have affected, enlarged, invalidated or defeated any “proceeding” pending by virtue of any of the provisions of the acts repealed. People v. Herkimer, C. P., 4 Wendell, 210.

The object of the saving clause was to preserve “any lien or a right to a lien ” and any pending proceedings.

The lien has been saved; the “proceedings to enforce such lien” have been preserved.-

It was competent for the legislature to repeal all provisions heretofore existing as to costs, to place the costs to be given in all proceedings then pending or thereafter brought within the discretion of the trial court. Jackett v. Judd, 18 Howard, 385.

Appellant reiers to Dean v. Gridley (11 Wendell, 169), to support his contention.

We think the language of the statute saving pending actions quite unlike that found in the act of 1885. That statute declared “no prosecution * * * pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such provision had not been repealed * * * ”

We are of the opinion that the special term reached the proper conclusion and gave the saving clause in the statute the proper construction.

The question is novel and the order may, therefore, be affirmed properly without costs to either party.

Order of the special term affirmed without costs to either party.

Boarmian, J,, and Follett, J., concur!


text:
    Matter of the Judicial Accounting of Arthur Keef, Adm’r, and Sarah E. Keef, Adm’x, of the Estate of Richard Jerritt, deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Surrogate’s court—Jurisdiction after distribution.
    The jurisdiction of the surrogate’s court is purely statutory. There is no statute conferring jurisdiction upon the surrogate’s court to adjudge that the next of kin, to whom, the personal estate has been distributed, shall pay the debts incurred by the administrators.
    2. Same—Cannot compel next of kin to disgorge money received.
    There is no jurisdiction in the surrogate’s court to settle and readjust the affairs of the next of kin, and compel them, or one of them, to disgorge assets received under a certain agreement as to distributing the estate, and to pay part thereof back to the administrators, or to pay some upon the debts and liabilities found existing against the estate.
    3. Same—Practice—Confirmation of referee’s report—Code Crv. Pro., §§ 2546, 2545.
    Where a reference has been made, under Code of Civil Procedure, section 2546, the safer practice is for the surrogate to make an independent decision, with findings of fact and of law, accepting or rejecting the conclusions of the referee as shall seem just; exceptions can be filed to such finding and to subsequent refusals to find, or findings in settlement of case, as provided in Code of Civil Procedure, section 2545. Whether the surrogate can simply confirm the referee’s report, Quaere. See case for form of decree, etc.
    4. Administrators—Money paid next of kin—When not entitled to credit for.
    Administrators are not entitled to be credited with payments made by way of distribution to the next of kin, until all debts and expenses of administration have been piad.
    Appeal from a decree of a surrogate’s court judicially settling the accounts of administrators.

      M. L. Wright, for adm’rs; W. A. Poucher and C. G. Brown, for Ruth Spencer, app’lt contestant.
   Follett, J.

April 29,1877, Richard Jerritt died intestate, leaving two daughters, Sarah E. Keef (wife of Arthur Keef) and Ruth Spencer (wife of Daniel Spencer) sole heirs at law and next of kin.

May 5, 1877, letters of administration were granted to Arthur and Sarah E. Keef.

May 15,1877, the personal property was inventoried; May 16, 1877,. the daughters, by deeds of conveyance, divided between themselves all of the intestate’s real estate. The personal property of the intestate amounted to about $4,000. In May, or June, 1877, Daniel and Ruth Spencer claimed that certain property included in the inventory belonged to them, and their claim was allowed; and at the same time the sisters divided between themselves all of the property remaining upon the inventory except a pair of horses, four two-year-old heifers and five yearlings, of which it was agreed each should own half.

March 20, 1868, Arthur Keef gave a mortgage to Richard Jerritt to secure the payment of $499 in five years, with annual interest. This mortgage was not on the inventory, and not divided in the division above referred to. Subsequently Daniel and Ruth Spencer each presented a claim against the estate for several hundred dollars, and the administrators made a counter-claim against each for several hundred dollars. Mrs. Keef also brought an individual action in the supreme court against Daniel Spencer.

January 22, 1878, the parties agreed upon .two arbitrators to hear and determine all of their respective claims. March 8, 1878, the parties settled their litigations and entered into the following agreement:

EXHIBIT “A.”

“ In the settlement this daymade between Ruth Spencer, Daniel Spencer and . Arthur Keef, and Sarah E. Keef, individually, and as administrator and administratrix of the estate of Richard Jerritt, deceased, it is understood and agreed that Mrs. Spencer retains the horses, loan of $450, furniture, dairy utensils, vegetables, pork, etc., two cows set off to her in or about June 18, 1877, together with the other articles set off to her in a division of personal property between herself and her.sister, Mrs. Sarali E. Keef, made at that time; and also she is to have one-lialf of a certain mortgage for §800, or thereabouts, principal and interest, given by said Arthur Keef to the said deceased; and said Sarah E. Keef is to have the other half of said mortgage, and also to have the articles set off to her on the division above referred to.

“It is further understood and agreed that there remains undivided of the stock on the farm of the said deceased the following articles, viz: One span of horses, four two-year-old heifers and five yearlings, which, it is understood, shall be divided between the said Sarah E. Keef and Ruth Spencer on or before April 1,1878; and any question of difference as to such division shall be submitted to the friendly arbitration of D. B. Van Burén and Schuyler Barker, Esqs., of New Haven.

“ It is further understood that neither Daniel Spencer nor Arthur Keef shall bring any charge or account against the estate of the said deceased for any matters prior to the death of said deceased, the same having been settled in the settlement this day made between the parties hereto.

“ ARTHUR ICBBF.

“ SARAH E. KEEF (by Arthur Keef),

“DANIEL SPENCER,

“RUTH SPENCER (by Daniel Spencer).’’

March 8, 1878, the administrators gave Daniel Spencer a receipt in full or all demands, and so did Sarah E. Keef. At the same time Mrs. Spencer and Mrs. Keef mutually exchanged receipts, and perhaps the administrators and Mrs. Spencer mutually exchanged receipts, though this does not very clearly appear, nor are the terms of the receipt given.

Between the date of this settlement and the date of this accounting the undivided property mentioned in the agreement was divided between the sisters.

In 1881, the administrators applied for a judicial settlement of their account, and citations were issued. Mrs. Spencer filed objections to the administrators’ account, and the matter was referred, pursuant to section 2546 of the :Code of Civil Procedure.

Upon the coming in of the report, it was referred again to the referee to make a further report. Upon the two reports, the surrogate held that there was

Due Morris L. Wright, an attorney, for services rendered to the administrators................ $504 00

Due Andrew Coe on a judgment for costs recovered by him in an action brought against him by the administrators.................... 844 17

Due the administrators for commissions......... 113 "57

Due the administrators for the amount paid by them to the referee and stenographer on this accounting.................................. 255 92

$1,217 66

The surrogate’s court found that there was no property in the hands of the administrators applicable to the payment of these claims. It was assumed that one-half of the estate, which was in the hands of Sarah E. Reef, one of the admin - istrators was in her hands as next of kin, and not as an administrator, even as against the administrators’ creditors. Upon these facts, so found, it was decreed that Arthur Reef and Sarah E. Reef, pay to Morris L. Wright his claim, and also pay Andrew Coe his claim, and that Wright and Coe have executions for their claims. The.-decree does not provide that Arthur and Sarah E. Keef, shall pay, in their representative capacity, but that they shall pay, and executions shall run against them as individuals.

The decree also provides that Ruth Spencer shall pay unto Arthur and Sarah E. Reef, as individuals, $608.83, one-half of said sum of $1,217.66, and that Arthur and Sarah E. Keef, as individuals have execution therefor.

From this decree Ruth Spencer appeals and asks this court to reverse it, upon two grounds: 1. That the surrogate was without jurisdiction to make the decree, 2. That the decree is contrary to the evidence, because it appears that there were assets in the hands of the administrators.

The jurisdiction of the surrogate’s court is purely statutory. There is no statute conferring jurisdiction upon the surrogate’s court to adjudge that the next of kin to whom the personal estate has been distributed shall pay the debts incurred by the administrators. This decree directs Arthur Reef individually, to whom no part of the estate has been distributed, and Sarah E. Reef individually, to whom one-half of the estate has been distributed, to individually pay the claims.

Nor is there any statute conferring authority upon the surrogate’s court to adjudge that Ruth Spencer pay to Arthur and Sarah E. Keef, as individuals, one-half of said claims. Nor do we think that the court had power to order Ruth Spencer to pay one-half of said claims to Arthur Keef and Sarah E. Keef in their representative capacity.

Administrators are not entitled to be credited for payments made by way of distribution to the next of-kin until all debts and expenses of administration have been paid. The referee and surrogate have disregarded this principle, and have allowed for payments made to or property distributed among the next of kin before all debts or expenses of administration have been paid; and so it is found by the referee that there is nothing remaining in the hands of said administrators to pay outstanding claims against said estate or the expenses in the report afterward mentioned.

Hence, to correct the mistake made by the administrators an unwarranted attempt is made to settle and readjust the affairs of the next of kin and compel them, or one of them, to disgorge assets received under the agreement of 1878, and pay a part thereof back to the administrators, or rather, to pay same upon the debts and liabilities found existing against the estate.

Notwithstanding the reference of the accounts under §2546, of the Code, we are not prepared to say that a simple confirmation of the referee’s report by the surrogate is a sufficient decision to answer the requirements of § 2545. Unless some authority can be found to the contrary, we think the safer practice would be for the surrogate to make an independent decision, with findings of fact and of law, accepting or rejecting the conclusions of the referee, as shall seem just. Exceptions can be filed to such findings and to subsequent refusals to find or findings in settlement of case, as provided in § 2545.

It follows, that the decree of the surrogate must be wholly set aside and the proceedings must be remitted to the surrogate to make a decision with findings of fact and conclusions of law. That in such decision, and in the summary statement to be contained in the decree, the administrators should be charged with the whole amount of assets which has come in their hands. That they would be credited with funeral expenses, expenses of administration, debts and accounts paid, any losses from the inventory from property therein included, which did not belong to the intestate, and which was delivered up by the administrators to the true owner and claimant.

From the balance, as so ascertained, the order or decree, as well as the decision should direct the administrators: 1. To allow and credit to themselves the amount for their commissions to which they are by law entitled, as found and established by the surrogate.

Second. That the administrators pay such debts of the estate and costs and expenses of administration as are found to be properly chargeable against the estate by the decision of the surrogate.

Third. That the administrators pay over the rest, residue and remainder after such payments-aforesaid in equal parts to Sarah E. Keef and Ruth Spencer, the only next of kin of said deceased; but as money or assets in excess of said amounts have already been received by said next of kin under and in pursuance of agreements made between them, or between them or one of them and the administrators, let the decision find, and the decree adjudge that such residue has been fully paid over to said next of kin, and to the extent thereof, the administrators are exonerated and discharged from any further payments thereon.

The costs of tins appeal should be chargeable against the estate in the hands of the administrators under the second subdivision of the decision and findings as above specified.

Hardin, P. J., and Boardman, J., concur.


author: Per Curiam.

text:
    Matter of the Accounting of Stephen S. Otis, as General Guardian, v. Huldah A. Hall, now Carrie Rohr.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    Practice—Surrogate’s court—Exceptions to findings, etc.—Code Civ. Pro., § 2545—Appeal.
    Where no decision in writing, stating separately the facts found and the conclusions of law, has been signed by the surrogate and filed in his office, in a case arising in the surrogate’s court, and no exceptions have been filed in liis office or taken by appellant’s counsel to any finding or ruling, or to any refusal to find or rule, the appeal must be dismissed. See Code Civ. Pro., §2545.
    Appeal from decree of surrogate settling accounts of Otis, as guardian.

      Henry E. Turner, for Otis, guardian; A. E. Kilby, for Huldah A. Hall.
   Per Curiam.

There has been a total disregard of the practice required by section 2545 of the Code of Civil Procedure in respect to decisions, exceptions to findings or refusals to find, and the judgment or decree from which this appeal has been taken. No decision in writing, stating separately the facts found and the conclusions of law, has been signed by the surrogate and filed in his office. No exceptions have been filed in the surrogate’s office or taken by appellant’s counsel to any finding or ruling, or to any refusal to find or rule. These things are required by said section.

The appeal from the decree or order brings up for review each decision to which an exception has been duly taken by the appellant as prescribed in this section.”

It is apparent, therefore, that we are presented with nothing which we can review in the absence of any decision or exception, and the appeal must be dismissed. Benjamin v. Allen, 35 Hun, 115; Enos v. Eigenbrodt, 32 N. Y., 444 ; Code, §§ 992-3-4, 996; Sisson v. Cummings, 35 Hun, 22.

Appeal dismissed, with costs.


text:
    Elias W. Thomas et al., by Guardian, App’lts, v. Jane E. Snyder et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    Will—Construction of—Power to dispose of land by life tenant.
    Testator’s will contained the following language: “First. I give and bequeath to my wife, Electa T. Thomas, the use of the farm on which I now reside, together with one now occupied by William Fairchild, and all the personal property on the said farms, and the income of my bank stock, during her natural life, and the right to dispose of the same by will, except the bank stock. * * * Held, it was competent for the said widow to dispose of the property by will, and having done so. the property passed under the will to the defendants, who were her devisees. Camp-Mi v. Beaumont, 91 N. Y., 464, distinguished.

      Appeal from a judgment entered in Oswego county upon a decision made at special term, dismissing the plaintiffs’ complaint in an action of partition.
    March 5, 1875, Elias Thomas made and published his last will and testament, and died in the town of Yolney, Oswego county, May 10, 1880. Plaintiffs are children of a deceased son of the testatator. The son died before the testator. Defendants are testator’s daughters.
    July 3, 1884, testator’s widow, Electa T. Thomas, died.
    Testator’s will contains the following language:

      “First, I give and bequeath to my wife, Electa T. Thomas, the use of the farm on which I now reside, together with one now occupied by William Fairchild, and all the personal property on the said farms, and the income of my bank stock, during her natural life, and the right to dispose of the same by will, except the bank stock, and if the income from the above mentioned property shall be insufficient for her maintenance, the deficiency shall be made up from the income of the farm now occupied by James Hodge, and known as the Keeler farm.”
    Before her death the widow made her will, wherein she devised the land in question to her daughters, the defendants.
    This is an action of partition. Plaintiffs claim title to one-third of the lands, and defendants claim title to the whole thereof. The trial judge.has decided that plaintiffs have no title in the lands, and dismissed their complaint, with costs, upon the merits.

      Avery & Merry, for app’lts; Rhodes, Coon & Higgins, for resp’ts.
   Hardin, P. J.

From the general tenor and scope of the testator’s will, it is inferable that he did not intend to die intestate as to any portion of his estate.

After enumerations of it in detail as to real estate, and partially so as to the personal estate, he adds a clause lastly to the effect that all the rest, residue and remainder of my personal estate* goods and chattels, of what nature or kind soever, to my said wife Electa T. Thomas.”

A construction which does not leave the testator intestate as to any portion of his estate is preferable and more reasonable of the will in question than a construction which would leave him dying intestate as to two of the several farms of which he was the owner at the time of making and publishing his will, as well as at the time of his death.

The law prefers a construction of a will which will prevent partial intestacy to one which will permit it.” Vernon v. Vernon, 53 N. Y., 361.

While it was within the power of the testator, owning thirteen farms, to so dispose of eleven as to satisfy his intention, and to leave the other two undisposed of, except as to the use thereof during the life of his widow, it does not seem reasonable to impute such an intention to a testator upon doubtful and equivocal language. _

_ The testator limited the gift and devise to his wife “during her natural life.”

The use and devise is clearly unlike that considered in Campbell v. Beaumont, 91 N. Y., 464, which was absolute, and the widow took the whole estate with power, of disposition.

Following the limitation to and “during the widow’s life,” which confessedly applies to the real and personal property given to her, and the words “and the right to dispose of the same by will, except the bank stock,” apparently the intent in the use of the latter words was to make them co-exclusive with the prior words used to give her the use of the property of both classes “during her natural life.”

Besides, the exception of the bank stock and of the before-named personal property, it is suggestive of an intent to include, in “the right to dispose,” the two classes of property entirely save that portion thereof known as the bank stock.

The original will, handed up upon the argument,- gives the language without any use of punctuation or capitals, to indicate an intent to separate the personal from the real in the-application of words “and the right to dispose of the same by will.” Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb., 110.

It was competent for the widow to dispose of the property by will, and, having done so, the property passed under her will to the defendants. Cutting v. Cutting, 86 N. Y., 540; Hutton v. Benkard, 92 N. Y., 295.

It is found that the widow executed a will which, with a codicil, was probated, and that it gave the property in question to the defendants.

The general language of the will was adequate as an execution of the power conferred upon her to dispose of the property in question by will. Mott v. Ackerman, 92 N. Y., 539; Hutton v. Benkard, supra.

It follows that the plaintiff had no title, interest or estate in the lands in question, and that their attempt to partition the same was properly defeated at the trial.

Judgment affirmed with costs.

Boardman, J., and Follett, J., concur.


author: Hardin, P. J. Boardman, J. Hardin, P. J. Follett, J.(dissenting).

text:
    Louis Weiler, Resp’t, v. John A. Isley, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Master and servant—Duty of employer to furnish scaffold.
    An employer is bound to furnish to his employees safe tools, machinery and appliances for their use. This includes a scaffolding built by the employer for his servants to work upon. If such scaffolding is not safe and substantial, by reason whereof an employee without fault suffers injuries, the employer is liable for the damage caused thereby, if the exercise of due care on the part of the employer would have prevented the injury. Follett, J., dissents, on the ground that defendant was not liable for the negligent act of his employee.
    Appeal from a judgment on a verdict in Onondaga county court for $450 for plaintiff, and an order denying motion made on the minutes for a new trial. Action for damages sustained by plaintiff in falling from a scaffold, caused by the alleged negligence of defendant. The injuries were received April 25, 1885.. Plaintiff had been at work for defendant about four weeks; he was told to go upon the scaffold to shingle a house; he had worked about two minutes when the scaffold gave way. Plaintiff was not a carpenter, but was employed as a helper to carry timber and shingles. He testified he did not know anything about scaffolds in this country. Defendant was a contractor residing in the fifth ward of Syracuse, and hired plaintiff, and he testified he did not construct the scaffold; he was present when it fell. He had a foreman by the name of Knobel. He testified he superintended the building of the scaffold, and explained how it was built. That he was superintendent, and that “Mr. Isley sent me to build it with the boy. I superintended the building of this scaffold. Young Isley and I built it. I told him what to do, and he did it. ”
    Defendant moved for a non-suit, and his motion was denied and an exception was taken.

      Hoyt, Beach & Hine, for app’lt; M. E. & O. W. Driscoll, for resp’t.
   Hardin, P. J.

Defendant was under obligations to plaintiff to furnish safe tools, machinery, appliances and structures for his use. To furnish a scaffold that was reasonably safe before directing the plaintiff to occupy it. Marsh v. Chickering, 101 N. Y., 400.

Plaintiff was bound to exercise due and reasonable care in its use.

The burden of showing that the injuries were not, by reason of want of care of plaintiff was upon him, and the jury were told to find he was free from contributory negligence before the plaintiff should recover. The verdict has passed, and we must assume that the jury found the plaintiff received the injuries in question without any fault on his part. Whether or not the scaffold was unsafe and unfit for the use which the defendant directed the plaintiff to make of it, was a question of fact for the jury. Binzing v. Steinway & Sons, 101 N. Y., 552.

Attention is called to Malone v. Hathaway (64 N. Y., 5), but we think it is not decisive of this case. There the negligence was that of a co-employee whose duty it was to inspect and repair, and an omission of that duty caused the death of the plaintiff’s intestate.

In Crispin v. Babbitt (81 .N Y., 516), it was the personal unauthorized and careless act of a co-employee which caused the injuries complained of, and that negligent act was held not to be the act of the defendant, but of a co-employee, and hence no liability upon the part of the defendant. In the case before us, upon evidence legitimately bearing upon the question, the jury have found that the defendant did not exercise proper care and prudence in regard to the scaffold before he directed the plaintiff to enter upon its use. Hence, defendant’s liability. ' Pantzer v. Tilly Foster Iron Co., 99 N. Y., 368; Probst y. Delamater, 100 N. Y., 266.

The jury upon the evidence before them may have found that the defendant omitted to use proper care and prudence, in regard to the scaffold, before he gave the direction to the plaintiff to go upon and use it.

If the defendant like a prudent, cautious builder, had himself gone over the scaffold, and made a suitable and careful inspection of it, he might have, and probably would have discovered the defect in its construction, seen the dangerous condition in which his foreman had left it, and made such additions and changes as would have rendered Jit safe and secure.

Plaintiff was young in experience, immature and under the direction of the defendant, who had better experience and judgment, entered upon the weak and insecure, as well as inadequate structure and received injuries. The verdict finds the plaintiff was not guilty of negligence, and that the defendant omitted to do his full duty in the premises, and we think the verdict should stand.

Judgment and order of the county court of Onondaga county affirmed, with costs.

Boardman, J., concurs; Follett, J., dissents.

Boardman, J.

I concur in Mr. Justice Follett’s opm_on which he is disposed to abandon. I do not see any reason why his reasoning is not right and his conclusions just.

The general principle which controls this case is this: An employer is bound to furnish to his employees safe tools,, machinery and appliances for their use; that includes a scaffolding built by the employer for his servants to work upon. If such scaffolding is not safe and substantial, by reason whereof an employee without fault suffers injuries, the employer is hable for the damages caused thereby, if the exercise of due care on the part of the employer would have prevented the injury.

This scaffold was built by the defendant for the use of the plaintiff and other servants. It matters not whether it was built by Knobel and defendant’s son or by the son alone, provided it was badly built, and the exercise of due care by defendant would have discovered and prevented the defects.

Such I understand to be the rule in case of railroad companies, and I know of no other reason why a different rule should apply in a case of individuals.

I think the judgment should be affirmed, with costs.

Hardin, P. J.

In Marsh v. Chickering (101 N. Y., 400) it is assumed to be the law that it is the duty of the master: “Is required to furnish such appliances or structures as are reasonably safe and suitable—such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.”Whether the scaffold was unsafe and unfit for use was a question of fact, and the jury have settled that favorably to the plaintiff, and he is entitled to hold his verdict. Benzing v. Steinway & Sons, 101 N. Y., 552.

Brother Boardman’s views of the case seem to be right and should prevail.

Follett, J.(dissenting).

Appeal from a judgment of the county court entered on a verdict for $450 damages, and from an order denying a motion for a new trial, made on the minutes.

April 25, 1884, a shingling scaffold on which plaintiff and one, Eisner, were at work gave way and the plaintiff fell to the ground and was injured. This action was brought to recover the damages caused by the injury.

At this time, defendant, a builder was engaged in constructing houses, and employed at least four persons, Knobel, his foreman, John A. Isley, his son, Fred Eisner and this plaintiff.

During the forenoon of the day of the accident defendant • directed Knobel and defendant’s son to build this shingling scaffold. Knobel was an experienced carpenter, and defendant’s foreman. Defendant’s son was but sixteen years old, and without experience in such matters. The scaffold was built aoout teii o’clock in the foremoon, after which defendant’s son shingled from it for about half an hour. The scaffold was not again used until four o’clock of the same day, when the plaintiff went upon it to complete the shingling, by defendant’s direction, when it fell.

The plaintiff testifies that defendant’s son alone built the scaffold. Knobel and the son testify that they together built it. Whether it was built by both, or by the boy alone, was a question of fact. The fact that the scaffold fell within six hours after it was built, it having been previously used for half an hour, and while being used in the ordinary way for the purpose for which designed, is some evidence of defective construction.

This fact, and a description of the mode in which the scaffold was built, was before the jury, and they must have found that it was negligently constructed. Whether this finding is against the evidence, cannot be determined from the appeal book because it is impossible to tell how the scaffold was constructed. The witnesses testified from drawings of the building and scaffold, and in describing, they are reported as testifying, it was nailed “here,” it rested “here,” a piece of scantling on “this, illustrating,” ‘ ‘indicating, ” etc. While this was unintelligible to an appellate court, which cannot, from such a record, form acorrect idea of the objects described, or of their relations to other objects, if Knobel entrusted the construction of this scaffold to the inexperienced boy of sixteen, the jury was justified in finding him negligent, and on the other hand, if he and the boy united in building the scaffold, a finding that Knobel negligently constructed it is sustained by the evidence. The important question is whether the defendant is liable for the negligence of Knobel.

It is settled in this state that it is the master’s duty to exercise due care, to furnish safe appliances and structures for the use of his servants; and it is also settled in this state that when the master delegates the power to the servant, no matter how low in rank, to furnish or provide appliances or structures, as a co-servant, higher, or lower, in rank, is without contributory negligence, injured while using such appliances or structures, the master is liable for the injury. Mann v. D. and H. C. Co., 91 N. Y., 495, 500; Fuller v. Jewett, 80 N. Y., 46.

A master who exercises due care in the selection of his servants, is not liable for the negligent injury of one servant by another, unless the negligent servant was authorized to perform, and was performing master’s duties. Malone v. Hathaway, 64 N. Y., 5; Crispin v. Babbitt, 81 id., 516; Kelley v. Norcross, 121 Mass., 508; Colton v. Richards, 23, 123, id., 484; Feltham v. England, L. R, 2 Q. B., 33; N. Y. L. E. and W. R. R. Co. v. Bell, 8 East. Rep., 124; Wood’s Master and Servant (2d ed.), 447, 448, 449; Smith’s Master and Servant, 257. The authority of Malone v. Hathaway (supra), has never been questioned in this state, nor has it been distinguished or explained.. The case at bar seems to have been determined at the trial upon the authority of Green v. Banta (16 J. & S., 156; aff’d 97 N. Y., 627), whichis not well reported as will be seen by an examination of the record in the court of appeals. In that case, the foreman who directed that the scaffold should be built, stood by and superintended its construction, was authorized to and did employ the workmen, and had control of the construction of the building. The master did not see the scaffold before the accident. Appeal Book, pages 20 and 57. In Green v. Banto (supra), there was a complete delegation of authority upon the negligent servant to perform the master’s dúties; while in the case at bar there-was no delegation of the master’s duties upon Knobel, who was not authorized to control the work, or any particular branch of it, or the defendant’s workmen; but, on the contrary, the defendant was in personal control of the work, personally directed Knobel (an experienced carpenter), to build this scaffold, and personally directed the plaintiff to shingle from this scaffold. There is no case decided by the court of appeals which authorizes the holding, under such a state of facts, that the defendant is liable for the negligent act of Knobel. There are cases which, upon a cursory examination, may seem to hold a contrary doctrine, but they are cases against corporations, who must perform master’s duties by servants, and in which cases it appears, though not expressly stated, that the servants were performing master’s duties.

This case was not tried úpon the theory that the defendant was negligent in the selection of his servants or materials, that he negligently performed any act, or that, he performed or omitted to perform any act or duty.

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


author: Boardman, J.

text:
    People of the State of New York, Resp’t, v. Eucebia Fitzgerald, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887)

      1. Coroner — Jurisdiction — Exhuming buried bodies — Code Grim. Pro., §773.
    The coroner has no jurisdiction to act except in the manner provided by law. He can proceed only by the aid of a jury. Code Crim. Pro., § 773 He has no right on his own motion, or at the request of any one, tó take up a dead body and have portions removed for analysis. In failing to comply with the law, he loses all jurisdiction, and his acts are not those of an officer, but of an individual.
    2. Same—When third party responsible for act of— Penal Code, §§ 29, 311.
    A certain coroner, at the request of defendant, without calling a jury, had, a dead body taken up and portions thereof removed for analysis, There-was evidence tending to show malice on rhe part of defendant. Held, that under Penal Code, sections 29 and 811, this was ail that was necessary to make defendant responsible therefor, as if done by herself
    Appeal from a judgment convicting defendant of violating sepulture and the remains of the dead.

      John B. Stanchfielcl (district attorney), for People; Jacob Schivartz, for app’lt.
   Boardman, J.

The coroner has no jurisdiction to act except in the maimer provided by law. Code, Grim. Pro. § 773. He had no right on his own motion or at the request of the defendant to take up a dead body and have portions removed for analysis. No one can suppose that a coroner is possessed of such an irresponsible authority to be exercised upon suspicion upon the buried bodies in our cemeteries. He can proceed only by the aid of a jury. The statute was not complied with in this case. No jury was summoned. The act done was without authority of law. In failing to comply with the law he lost all jurisdiction and the act was not the act of an officer, but of an individual. He was a trespasser, a wrong doer, and his official character could not be invoked to protect others.

He acted at the instigation of the defendant alone. No one else had any mbtive to act or desired action. And who was the defendant, and what was her motive? Was it in the interest of a just administration of the criminal law? She knew in California directly after the death of General Irvine in 1882 from Dr. Wooster, exactly what she makes, use of in 1885 in New York to accomplish her purpose here, as appears by the evidence of her son Horace N. Wooley. She claimed to be a relative by adoption to General Irvine from his youth. By reason thereof and for other reasons, she claims an interest in his affairs and the ownership of his property. Both claims are successfully controverted. She sends a hired detective or servant to shadow the family and get some evidence in her interest. In the midst of the California litigation over the title and ownership of Irvine’s property there, she leaves San Francisco and follows her detective to Elmira, where she attempts to get a favorable adjustment of -her claims against the property of the deceased. Threats are made use of. Suggestions of criminal agency on the part of the family of the deceased producing his death are made. All these means failing more active measures are instituted, and she proposes and urges the disinterment of the body and the examination of some of the organs for poison.

To carry out this purpose she has procured for use two written instruments, affidavits or bogus affidavits, exceedingly informal, uncertified by any officer to make them evidence in this state and produces them to the coroner to induce action. This is the only evidence, known to her in 1882 as well as it was in 1885, on which is founded the suggestion that Irvine was murdered by his wife and daughter. It is used to incite action by the coroner and he undertakes to act. The defendant’s motive is further illustrated by her search for a will in the coffin. She requests the coroner and Nealson to search for a will of deceased in the coffin and they do so, cutting open the pillow for that search. She came to Elmira to have the body taken up and the stomach examined, and she proposed to stay until that was done. She was the guiding, animating spirit for her own malicious and selfish motives in securing this disinterment. Mr. Reilly, the coroner, ceased to be coroner, and as her agent and at her request searches the coffin for a will. Was there anything in the relations of the defendant and General Irvine, as shown by the evidence, wffiich could justify her action? Was there any evidence that the deceased came to his death by criminal agency? The jury has answered both questions in the negative. It has also found that the defendant was actuated by malicious motives; that she was attempting to extort money or property from the family of the deceased, and that failing in pursuasions or threats, she resorted to more violent proceedings to bring the family to terms or to blacken their reputation with suspicions of criminal agency in the death of the husband and father. The jury has found that what was done was so done at her request, by her instigation, for her purposes and with malice. Of course it is not intended to say that the jury made such express findings. What we do say is, that the evidence would justify such findings, which, being found, would sustain this conviction. Penal Code, § 29. This section, with section 311 of the Penal Code, are all that are necessary in a proper case to connect the defendant with the act done by others and make her responsible therefor as if done by herself.

Let us review the exceptions taken upon the trial and see whether error was there committed. The district attorney was allowed to prove that General Irvine came to his death from natural causes. This evidence tended to show that the conduct of the defendant in charging a violent death was false, without any reasonable foundation, and instigated by malice. The motives of defendant were properly in issue.

The ruling at folio 127 was proper. The defendant, on cross-examination, had no right to the conversation further than was limited by the court, viz.: “Such portions of the conversation as relate to matters called out by Mr. Stachfield.”

The rulings at folios 142, etc., are explained at pages 126, etc., and as so explained the exceptions are not valicl. It is possible, however, that whatever was said or done on that occasion was a part of the res gestee, showing, among other things, that no coroner’s jury was called and that Reilly had not contemplated calling one. Besides, if Reilly was acting for and at the request of the defendant, his declarations in connection with his acts and tending to characterize them were proper. We see no valid exception to the evidence allowed to be read from the first commission.

The declarations of the defendant to Mrs. Merkle in 1882 in Elmira as to her relations with Gen. Irvine were properly admitted in evidence, and were the proper subject for contradiction. For the same purpose witnesses were properly called to show that Irvine never lived in Kentucky, and could not have been adopted by defendant’s father as and when she claimed, thus overthrowing the pretended youthful intimacy between defendant and deceased upon which the defendant based their later friendship.

We do not see any error in the cross-examination of Charles A. Collin. The latitude allowed on cross-examinatian is reasonably broad. The defendant had proved the advice which Collin had given to her, and this cross-examination related to what was said in connection with the advice given, and tended greatly to qualify, if not destroy it, so far as it was to be used as a justification for her action.

Numerous other objections and exceptions are cited upon appellant’s points without any comment or authority showing the rulings of the court to have been erroneous. The reading of the case and of such objections as there occurred during the progress of the trial does not show any errors. In fact the case appears to have been tried in a pains-taking and careful way, and we are convinced that the rights of the defendant were carefully guarded by the learned judge.

Inasmuch as this conviction can be sustained upon other grounds, it has not been deemed necessary to consider the question of the jurisdiction of a coroner of Chemung county after interment of a dead body in such county where the death occurred in the state of California. This opinion assumes that the coroner, so long as he follows the statute, has such jurisdiction, but without so deciding.

We think the judgment should be affirmed.

Follett, J., concurs; Hardin, J., dissents.


author: Per Curiam. Martin, J.

text:
    Elisha G. Gay, App’lt, v. Austin Lathrop, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Submission of differences—General covenant for is void.
    A general covenant to submit any differences that may arise in the performance of a contract or under an executory agreement is a nullity.
    3. Contract — When composed of independent agreements some of WHICH ARE VOID AND SOME VALID, THE LATTER ARE ENFORCEABLE.
    Where a contract contains some provisions which are void, but embraces other independent agreements which are valid, the latter may he enforced.
    8. Same—Contract to adopt estimate of a party as basis of compensation is valid.
    Where by the terms of a contract for the performance of work at a rate of compensation therein agreed upon, the parties expressly agreed to adopt the estimate of another as the basis for determining the .amount of the final payment. Held, that such a contract fairly entered into was binding upon the parties to it.
    4. Same—Procurement of estimate agreed upon is condition precedent to action for compensation unless omission is excused.

      Held, that in the absence of fraud, even conceding the necessity of notice to the party performing the work on the making of the estimate in order to make it binding upon him, it was necessary in an action for compensation for the work to procure the estimate which was provided for by the terms of the contract or to show such demand and refusal to make a proper estimate as would excuse the omission.
    5. Same—What is not considered as sufficent to justify substitution OF OTHER EVIDENCE FOR THE ESTIMATE.

      Held, that want of notice in making the estimate was not sufficient to justify a recovery on other evidence of the work done.

      Forbes, Brown & Tracy, for pl’ff; A. S. Kendall, for def’t.
   Per Curiam.

Order affirmed, with costs, upon opinion of Martin, J., at special term.

The following is the opinion of Martin, J., in which the facts sufficiently appear:

Martin, J.

This was a motion for a new trial made by the defendant on case and exceptions. So far as the questions involved are concerned, the action was to recover the contract price for the excavation of a quantity of solid rock. The services in question were performed under a written contract between the parties for the construction of a portion of a railroad. By the terms of the contract the plain was to receive ninety cents per cubic yard for the excavation of solid rock. That the plaintiff excavated 15,429 yards is not disputed. That he has been paid for only 12,580 yards is admitted. It was for the difference, 2,849 yards, that the plaintiff sought to recover.

On the trial it was claimed by the defendant that the solid rock in dispute was excavated from a point back of the line laid out by the chief engineer of the railway company, and contrary to his instructions. That the excavation of such rock was not only unnecessary and of no benefit to the company, but was an injury to the work. The plaintiff, however, insisted that he excavated only to, or substantially to, such line, and that he substantially complied with the instructions of the engineer. This question was submitted to the jury, who found for the plaintiff.

The contract between the parties contained the following provisions: “ Now, therefore, in consideration of the premises, this agreement further witnesseth, that the said party of the first part hereby agrees with the said E. G-. Gay, party of the second part, that they will pay, or cause to be paid, in lawful money, to the party of the second part, * * * for all materials furnished and delivered, and for all work done under this contract, the prices named in the annexed proposal, signed by the party of the second part, and forming a part of this contract, to be made in the following manner; that is to say: On or about the 10th of each and every month, during the progress of the work, an estimate will be made of all materials delivered and of work done during the preceding calendar month, with its amounts, at the prices named in the annexed proposal, with any extra work done, estimated as hereinbefore provided for, ninety per cent, of which monthly estimate shall be paid to the party of the second part within ten days thereafter. * * * When the work under this contract is completed to the satisfaction of the party of the first part, and the acceptance of the chief engineer of the said railway, there shall be a final estimate made of all materials delivered, and .all the work done agreeably to the terms of this agreement, to be made up from the estimates of said chief engineer as to quantities on the sections included in this contract, to which are to be fixed the prices named in the annexed proposal, to ascertain the amount due on the final estimate, less the sum paid on the monthly estimates, when the balance appearing to be due to said party of the second part shall be paid to said E. G. Gay, * * * And it is further agreed that the decision of the chief engineer of the said railway shall be final and conclusive in any difference or disputes which may arise between the parties to this agreement, relative to, or touching the same, and each and every of said parties do hereby waive any right of action, suit, or suits, or other remedy in law, or otherwise, by virtue of said covenants, so that the decision of, shall, in the nature of the award, be final and conclusive on the rights and claims of the said parties.”

Here were two separate and independent provisions; one providing the manner of payment as the work progressed, and also the manner of determining the sum the plaintiff was to_ receive on the completion of his work; the other, providing that the decision of the chief engineer as to any difference between the parties should be final.

That the last provision is void must be admitted, as it is well settled in this state that a general covenant to submit any differences that may arise in the performance of a contract, or under an executory agreement, is a nullity. Haggard v. Morgan, 5 N. Y., 422; Hurst v. Litchfield, 39 id., 377; Hart v. Lauman, 29 Barb., 410; D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y., 250.

But, as these provisions are separate and independent, the invalidity of the latter does not affect the validity or force to be given to the former. Where a contract contains some provisions which are void, but embraces other independent agreements which are valid, the latter may be enforced. Jarvis v. Peck, 10. Paige, 119; Leavitt v. Blatchford, 5 Barb., 10; Leavitt v. Palmer, 3 N. Y., 19; Curtis v. Leavitt, 15 id., 123; Senderson v. Goodrich, 46 Barb., 617; Arnot v. P. & E. Coal Co., 2 Hun 591-S. C. 68 N. Y., 558.

This leads us to consider the rights of the parties under the provision of the contract first above set forth. So far as the question involved is concerned, it provides that when the work shall be completed and accepted, a final estimate shall be made of all the materials delivered and work performed agreeably to the terms of the contract, to he made up from the estimates of the chief engineer as to quantities, to which the prices named in the plaintiff’s proposals were to be fixed, to ascertain the amount due upon the completion of the work. Thus the parties expressly agreed to adopt the estimate of the chief engineer as the basis for determining the amount of the final payment to the plaintiff. Such is the effect of the contract, and such was doubtless the intent of the parties. The situation and relation of the parties, the circumstances and the nature of the transaction all tend to show that such was the intent. The defendant was a contractor with the railroad company for the construction of several miles of its railway. The plaintiff made a sub-contract with the defendant to perform only a small portion of such work. The defendant could only recover from the company for such quantities of labor and material as were included in the final estimate of its chief engineer. Hence it was, that in making this contract, the defendant required the plaintiff to adopt the same basis for the determination of the quantities of his work and material that the defendant by his contract with the railroad company was required to adopt.

That such a contract when fairly entered into is valid .and binding upon the parties to it is well established. In McMahon v. N. Y. and E. R. R. Co. (20 N. Y., 467), where the amount of the work was to be determined by the engineer of the defendant, it was held that such a provision was free from any legal objection, and obligatory upon the parties. In Wangler v. Swift (90 N. Y., 38), where the defendant agreed to pay such sum as should appear due for work and materials under a certificate from the engineer in charge of said work, it was held that the agreement was valid. See also Smith v. Briggs, 3 Den., 73; Smith v. Brady, 17 N. Y., 173, 176; Wyckoff v. Meyers, 44 id., 145; Hoffman v. Gallaher, 6 Daly, 42; D. and H. Canal Co. v. Pa. Coal Co., supra; Gibbs v. Continental Ins. Co., 13 Hun, 611, 614; Whiteman v. Mayor of New York, 21 id., 117, 120.

Assuming, then, that there was a valid contract between the parties whereby the defendant agreed to pay the plaintiff only for such quantities of work and material as were included in the estimates of the chief engineer, and it must, I think, be held to preclude the plaintiff’s recovery for any other or additional amount, unless there was fraud or bad faith in making such estimates, or unless the plaintiff was entitled to notice and an opportunity to be present when such estimates or measurements for them were made, and the omission of such notice gave such right.

The estimates and measurement of the work in question were made in the first instance by the assistant engineer in charge of the work. He made the quantity as claimed by the plaintiff. The nfext assistant above him, however, upon receiving such measurements and estimates, made the deduction complained of. This deduction was made upon the ground that the quantity deducted was unnecessarily and improperly taken out back of the line as the same was established by the engineer; that it was not taken out in accordance with the requirements of the engineer, but contrary to his directions; and was, therefore, not only of no value, but an actual injury to the work. That such grounds in fact éxisted was proved by the defendant, but contradicted by the plaintiff. The chief engineer adopted the deduction made by his subordinate, and his final estimate was made accordingly.

It may be that the evidence was sufficient to have justified the submission to the juiy of the question whether the engineer was guilty of fraud, or acted in bad faith, in making such deduction. That question was not, however, submitted to them. The court, when requested, declined to do so. If there was evidence tending to establish bad faith, it presented a question of fact for the jury, and not a question of law for the court; and hence the court erred in not submitting the question to them. The recovery- in this case cannot, therefore, be sustained on the ground that the chief engineer was guilty of fraud or bad faith ill making up his estimates.

This leads us to inquire whether the plaintiff was entitled to notice and to an opportunity to be present when the measurements for the estimate were made, and if so, as to the effect of the omission to give such notice.

In the McMahon case (supra), where under a contract for the construction of a railroad by which the measurements were to be made and the amount of labor determined by the employer’s engineer, whose decision was to be final, it was held that the contractor was entitled to notice, and was not concluded by measurements made ex parte. See, also, Collins v. Vanderbilt, 8 Bosw., 313, 320; Dustan v. McAndrew, 10 id., 130; S. C., 44 N. Y., 72.

' On the trial, I was of the opinion that the decision in the McMahon case was an authority which justified me in holding that the plaintiff could recover upon other evidence than the estimate of the chief engineer, because such estimate was made in the plaintiff’s absence, and without notice or an opportunity to be present when the measurements therefor were made.

It now seems to me that that case is clearly distinguishable from the case at bar, and that it establishes a doctrine which is fatal to the plaintiff’s right of recovery when based on the sole ground of want of notice.

If it were to be conceded that notice was necessary to make such estimate binding upon the plaintiff (which I do not decide), still, as the estimate of the chief engineer is made by the contract the basis for determining the quantities of labor performed under it, the procurement of a proper estimate was a condition precedent to the plaintiff’s right of recovery, and he cannot recover without such estimate until he has established some sufficient excuse for not having procured it.

In the McMahon case, the employer was requested to have another measurement made, or to have those already made reviewed, which was refused, and the court held that although a final estimate by the engineer was a condition precedent to the payment, yet the employer having refused to remeasure the work, or review the estimates, the plaintiff might recover upon other evidence of the amount of the work.

In discussing that branch of the case, the court says: “This conclusion alone (that an ex parte estimate would not bind the plaintiff) without some excuse on the part of the plaintiff for not having procured a proper final estimate to be made would not support the decision of the referee. But such an excuse is afforded by the latter part of the paragraph in the statement of facts already cited, which states that the defendants were requested to have estimates, measurements, etc., made, and that they refused. It is 'to he inferred, undoubtedly, from this statement that the request was made by the plaintiff or his assignor, the original contractor. This was all, I think, that it was incumbent upon the contractor to do.. The engineer was entirely under the control of the company, subject to its order, and moved by its will, and after the company had absolutely refused to direct him to make an estimate or revise what he had already made, it would have been useless for the contractor-to apply to him, and I think he was under no obligation to do so.”

The recovery in that case was sustained only upon the ground of the defendant’s refusal to permit its chief engineer to remeasure the work or review his' estimates. That was held to be a sufficient excuse for not procuring a proper estimate.

In the case at bar there was no such demand and refusal. The plaintiff asked that the chief engineer review his estimates, and he did so.

It seems to me that within the principle of the case cited it must be held that the procurement of a proper estimate was a condition precedent to the plaintiff’s right of recovery; that there was in this case no such demand and refusal to make a proper estimate as was requisite to excuse the plaintiff’s omission to procure it, and that no other sufficient excuse for not having procured it was established.

I am, therefore, of the opinion that the court erred in holding that the proof of want of notice to the plaintiff was alone sufficient to justify a recovery in this action •upon other evidence than the estimate of the chief engineer, and that upon the evidence in the case the court should have non-suited the plaintiff, or directed a verdict for the defendant, unless the evidence was sufficient to have authorized the submission to the jury of the question whether the chief engineer was guilty of bad faith in making his estimates, and if so, then the court erred in not submitting that question to the jury. For this error, a new trial should be granted, with costs to abide the event.


author: Brady, J.

text:
    Henry Colton, etc., App’lt, v. Zachariah E. Simmons et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887)

      ' Gambling—Lottery business—Action for profits.
    The court will not lend its process or jurisdiction in aid of a controversy in which a party seeks to recover profits resulting from an illegal business. This is also the common law rule. The inhibition extends to all lotteries not authorized by the laws of this state.

      Appeal from an order setting aside a judgment.

      S. H. Randall, for app’lt; Franklin Bartlett, for resp’ts.
   Brady, J.

It is not necessary to consider in this case the alleged irregularities which apparently affect the validity of the judgment, for the reason that it distinctly appears to be a controversy in which the plaintiff seeks to recover profits resulting from an illegal business, to aid in which this court has several - times, and in accordance with the rules of the common law, declared it would not lend its process or jurisdiction. Indeed it would be quite justified, so emphatically has this determination been announced to simply direct the affirmance of the order appealed from with costs, but in order that the views entertained may neither be misunderstood nor misconstrued a brief expression will be given.

In March, 1818, in the case of Simmons v. Wood, decided in this department, a similar transaction was declared to be one prohibited by law, and an order made on a motion in which the decision was predicated of the illegality of the cause of action affirmed. In the case of Colton v. Remsen, Daily Register, April 1, 1885, general term and Daily Register, September 1, 1886, a similar enunciation was made, and it was held that this court would not interfere for or against either of the parties engaged in a prohibited business, one against the policy and laws of the state.

And this is the rule to be applied even if the lotteries to which the business carried on in this state relates, are authorized by other states. The inhibition extends to all lotteries not authorized by the laws of this state. See also Thacher v. Morris (11 N. Y., 437); Wilkinson v. Gill (10 Hun, 156); Grover v. Morris (73 N. Y. 476); Hart v. The People (26 Hun, 396). The legislature, by enactment, and the constitution, by proper phrase, have condemned lotteries, and thus, by statute law, by the doctrine of the common law against gambling, and by the fundamental law of the state, the plaintiff is confronted, and it becomes the duty of the court when the true character of the action has been fully and clearly developed, and the power thereto has been invoked to say to the plaintiff, you shall proceed no farther, to allow you to do so would be to violate these laws to abuse the powers invested in us and to outrage the dignity of the people whose will has been expressed.

Order appealed from affirmed with ten dollars costs and disbursements.

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


author: Van Brunt, P. J.

text:
    John E. Calrow, Resp’t, v. Henri C. Watson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March, 1887.)

    1. Counter-claim—Former judgment when a bar.
    A judgment recorded in an action growing out of the relations between the parties, is a bar to a counter-claim founded upon these relations as to which the former recovery was had.

      2. ' Accounting—Construction of agreement.
    On an accounting, if the defendent choses to allow an agreement to be construed upon the basis of a contract of employment, it cannot after-wards be claimed by him that the contract was one of partnership.
    Appeal from judgment upon a trial before the court without a jury.

      Mr. D. J. Newlancl, of counsel for def’ts and app’lt; Mr, Walter S. Logan, of counsel for pl’ff and resp’t.
   Van Brunt, P. J.

The only question which it is necessary to consider upon this appeal, is as to the correctness of the ruling of the learned judge who tried the cause excluding the evidence of the alleged counter-claim of the defendant.

The action was brought upon a judgment rendered in favor of the plaintiff against the defendant on the 29th day of June, 1876, in the superior-court of the state of Massachusetts. The defendant set up as a counter-claim a contract entered into in the year 1873 between the plaintiff and defendant, whereby he remained in the plaintiff’s employment upon certain terms and conditions, and for certain compensation alleged; that on the 1st of February, 1875, without any fault on his part, the plaintiff terminated his relations with the defendant, and did not pay the defendant the promised compensation.

To this counter-claim a reply was put in.

Upon the trial the plaintiff offered in evidence the judgment roll upon which the action was brought.

This judgment roll showed that the action was brought for the balance found due to the plaintiff - from the defendant upon the statement of account between them on the 1st day of March, 1875, and in which account the defendant was allowed for commissions and services up to February 1, 1875, the date of his discharge, from the business of the plaintiff.

It is difficult to see why this judgment is nota bar to any claim which the defendant might have had against the plaintiff, based upon the relations existing between them prior to the 1st day of February, 1875. ■

The allegation in the declaration is that the balance due was the result of an accounting between plaintiff and defendant, and the account shows that the relations existing prior to March 1, 1875, were the subject matter of the accounting, and that a balance was struck as between the parties as of that date.

Under this state of facts the defendant cannot now, in the face of that judgment,‘be heard to say that a greater amount was due him prior to March 1, 1875, because of the relations, theretofore, existing between him and the plaintiff.

The rights of the defendant, if any, arose out of the agreement which the account shows was one of the subject matters of the accounting, and the amount due thereunder to the defendant was therein fixed and defined.

It is immaterial whether the agreement is construed as a partnership or a mere contract of employment. Upon the accounting the defendant chose to allow the agreement to be construed upon the basis of a contract of employment; and it is too late now to claim that the contract was one of partnership.

The learned judge below was, therefore, right in excluding the evidence offered to support the counter-claim alleged.

As to the calculation of interest, no question was raised on the trial, and no error requiring correction was committed.

The judgment appealed from must be affirmed, with costs.

Daniels and Bartlett, JJ., concur.


author: Daniels, J.

text:
    George M. Birdsall, App’lt, v. James B. Davenport, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    1. Conversion—Property loaned to a partnership and appropriated TO HIS OWN USE BY ONE OE THE PARTNERS.
    When a loan is made to a firm to be used by that firm temporarily, and one of the partners without authority appropriates the same to his own use, which use is outside of and beyond the object for which the loan was made, it is a conversion. The misappropriation or unlawful use of another’s is a conversion.
    2. Same—Assignee’s right op action.
    Where the title to property already loaned is transferred to another, although after the conversion has taken place and though the transfer be made without specifically assigning the right of action, yet the assignment itself carries with it the right of action for the unlawful conversion.
    Appeal from a judgment recovered at the circuit, on the dismissal of the plaintiff’s complaint.

      Arthur O. Brown, for app’lt; Putney and Bishop, for resp’t.
   Daniels, J.

The action was to recover the value of two bonds, for the sum of $1,000 each, loaned by Thomas Davenport, as the executor of the estate of B. L. Johnson, to the firm of Davenport, Johnson & Company. The bonds were loaned under a receipt, or agreement, subscribed by the firm, in the following form:

“New York, 21st July, 1882.
“Received from Thomas Davenport, executor of the estate of B. L. Johnson, one bond for $1,000, No. 4,408, of the C. & N. W. R. R. Co., and one bond, same amount, No. 4,764, of the Grand Rapids & Ind. R. R. Co., which bonds we agree to return to him when called for, as they are loaned to us to use temporarily—coupons, 1st August and February, and 1st October and April.
“DAVENPORT, JOHNSON & CO.”

And they were delivered under this receipt to the defendant, but they were not used by the firm of Davenport, Johnson & Go.; but it was admitted on the trial that James B. Davenport, the defendant, had given his individual note to Wells, Fargo & Company for $1,250, and deposited these bonds with them as collateral security for the payment of that note, on the day of-the date of the receipt. And this deposit was relied upon by the plaintiff as the assignee of Thomas Davenport, executor, as establishing a conversion of the bonds by the defendant.

No authority was given to the defendant in the receipt, or agreement, permitting him to use these bonds as security for his own indebtedness or upon a loan of money to himself, but they were loaned to the firm to be used by that firm temporarily. They do not appear, however, to have been passed over to the firm by the defendant, but he took the bonds and appropriated them to his own use, and as this was done wholly without authority, and outside of, and beyond, the object for which the bonds were delivered to him, it was, under the authorities, a conversion. For any misappropriation or unlawful use of another’s property is a conversion. McMorris v. Simson (21 Wend., 610), where it was held that an entire departure from the authority given for the disposition of the property would be a conversion of it. Id., 615. And this principle was followed in Scott v. Rogers (31 N. Y., 676), and in Bank of Rochester v. Jones (4 Com., 497, 503-4).

This use of the bonds was made before the assignment executed by Thomas Davenport, as executor, and delivered to the plaintiff. That was made on the 6th of November, 1884, and it sold and transferred the bonds to the plaintiff without specifically assigning to him this right of action for their conversion. But that was not necessary to enable the plaintiff to take advantage of this unlawful hypothecation of the bonds, for the assignment of the bonds themselves carried with it the right of action against the defendant for this unauthorized and unlawful appropriation of them. Sherman v. Elder, 24 N. Y., 381, 384; Oneida Bank v. Ontario Bank, 21 id., 490, 497-9; “ McKeage v. Hanover Fire Ins. Co., 81 id., 38, 42.”

And the rule in this manner acted upon in no way conflicts with anything that was said in Hall v. Bobinson (2 Com., 293). And these cases are entitled to be accepted as authority, although they may differ in the application of the law from those cited in support of the ruling at the trial. The judgment should be reversed and a new trial ordered, with costs to abide the event.

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


text:
    Frederick W. Pasthoff, Assignee, App’lt, v. Henry Banendahl et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    Trespass—Parties—Recovery of damages.
    It is a well-settled rule that where there are joint trespasses, the party injured may proceed against one, several- or all for the recovery of his damages, and that he may recover his whole damages against any one, and that he may bring separate actions against each trespasser; but that the satisfaction of a judgment obtained against any one of the trespassers is a bar to any further procedure in any of the other actions. The wrong is joint and several.
    Appeal by plaintiff from judgment entered upon verdict of a jury.

      W B Putney, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Van Brunt, P. J.

It is admitted in this case that the total value of the goods illegally seized amounted to over $25,000, and the jury have found that the plaintiff was the owner thereof, and that the goods were seized by the sheriff at one time, and that the defendants gave the first bond of indemnity, and that the defendants’ claim amounted to over $18,000. At the time of the levy the sheriff held one other bond of indemnity, and subsequently other bonds were given.

Evidence as to the bonds of indemnity other than that given by defendants, was objected to by the plaintiffs’ counsel, but his objection was overruled and an exception taken.

The learned judge limited the recovery of the plaintiff in this action to the proportions which the defendants’ bond of indemnity bore to the whole number of bonds held by the sheriff.

In this we think the learned court erred.

It is a well settled rule that where there are joint trespasses, the party injured may proceed against one, several or all for the recovery of his damages, and that he may recover his whole damages against any one; and that he may bring separate actions against each trespasser, but the satisfaction of a judgment obtained against any one of the trespassers is a bar to any further procedure in any of the other actions. Wehle v. Butter (61 N. Y., 245).

In the case of a trespass by several persons, the wrong is joint and several. Therefore the satisfaction of the judgments in the case under consideration would be a bar to any action against any of the other trespassers.

Each party to the trespass being liable for the whole damage, the plaintiffs in this action had the right to recover their whole damage against the defendants.

The learned court, it is claimed based his ruling upon the case of O'Donohue v. Simmons (31 Hun, 267).

Even if it be true that the sheriff can only recover pro . rata of indemnitors, which is all that is culminated in that case, which can be claimed to be pertinent to this appeal, such a rule has no application to the case at bar.

This was not an action upon the bond of indemnity. The bond was only evidence that the defendants aided and abetted the sheriff in the trespass, and was proof of the same character as evidence of the presence of the defendants with the sheriff at the time of the trespass, would have been.

The plaintiff having the right to recover against any one or two or three of the trespassers his whole damage, was entitled to recover his whole damage in this action.

It is not necessary to pass upon any other question raised upon the argument of this appeal.

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

Bartlett, J., concurs.