text:
    Joseph Loeb et al., Resp’ts, v. Frank R Keyes et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Account stated — What is.
    A balance account, contained in a book oí accounts but never rendered, does not constitute an account stated.
    Appeal from a judgment in favor of plaintiff.

      George F. Lyon, for app’lts; Downs & Smith, for resp’ts.
   Merwin, J.

The plaintiffs were dealers in tobacco in the city of Philadelphia, Pa., and the defendant F. R. Keyes was a dealer in Binghamton. In the month of October, 1892, they “made an .agreement by which plaintiffs were to sell said Keyes tobacco from time to time, for which said Keyes should give promissory notes indorsed by said Oora W. Keyes, and that the plaintiffs should gives him credit from time to time for such notes so given; that in addition to his own notes, the said Keyes was to turn into plaintiffs such customers’ paper (of said Keyes) as might be acceptable to the plaintiffs, and that they should give him credit for such customers’ paper; that as said Keyes’ own notes became due, from time time, if he had sufficient credit with the plaintiffs on account of such customers’ notes so credited to him, that his own notes should be taken up by plaintiffs, and returned to him; that such agreement was to continue during the pleasure of the plaintiffs.” In pursuance of this agreement the parties had a series of transactions extending from the month of October, 1892, to July or August, 1893. On January 12, 1893, the plaintiffs sold Keyes a quantity of tobacco for the price of $4,328.44; and in payment of the same, Keyes gave three notes dated that day, for $1,442.82 each, due, respectively, in four, five, and six months after date, to the order of, and indorsed by, the defendant C. W. Keyes. The last one of these became due July 15, 1893, and is the note in suit. The tobacco was never delivered to Keyes, but by a subsequent arrangement the plaintiffs were to sell the same, and give Keyes credit for the amount they should receive, which they accordingly did. In keeping the account the plaintiffs, at the time of the sale, charged Keyes with the price of the goods, and credited him with the notes given. On the resale of the goods, the plaintiffs credited Keyes with the amount, the note being May 12,1893. "When the first and second notes became due, they were charged. to Keyes, and no question is made about them here. When the note in suit became due, it was notin fact paid; but the defendants claim that there was then a credit to them on the book of the plaintiffs which was applicable to the payment of this note, and that plaintiffs, under their agreement, were bound to pay it. Under the agreement, which, it is, to be observed, was to continue only during the pleasure of the plaintiffs, it was provided that plaintiffs should take up Keyes’ notes when they became due “if he (Keyes) had a sufficient credit with the plaintiffs on account of such customers’ notes so credited to him.” It is not shown that Keyes, at the time the note in suit became due, had sufficient or any credit then from such customers’ notes; and it is found by the referee that at the time “ said Keyes had already been credited by the plaintiffs with the amount received by them on the resale of the tocacco mentioned in the above sixth finding, but that said Keyes did not have to his credit with plaintiffs sufficient customers’ paper, including said last-mentioned credit, to pay and take up the note in suit, or any part thereof.” The evidence justifies this finding. - On the 5th July, 1893, when the last credit-of any kind was made, there was an apparent balance of credit of about $8,900. There were then outstanding notes of Keyes, given by him to plaintiffs, and for which he had received credit, to the amount of about $10,300. These were five in number, and one of them was the note in suit. The other four "amounted to about $8,900, and were given in renewal of notes given on purchase of goods. These renewals formed a part of the aggregate credit to Keyes, and, deducting them, there was practically no credit applicable to the note in suit. One of these renewals was due July 4th, and the others July 18th, August 8th, and 18th.

If there were was not sufficient credit from customers’ notes, then under the agreement, there was no obligation on plaintiffs to take up the notes. The plaintiffs, it may be said, had only in their hands defendants’ promises to pay, and there was on them no legal obligation to use those for the purpose of paying or canceling the note in suit. But the defendants say the plaintiffs have stated an account in which this note is charged off, and so they are bound as' by an account stated. The argument is mainly based on schedule C, which is dated November 14, 1893, is a transcript of the-plaintiffs’ books, and is in form an account of the dealings between plaintiffs and Keyes; the latest date of any entry being August 18, 1893. In this account, which apparently was made up after this suit was commenced, the note in suit is charged to Keyes under date of August 8,1893, and the other four notes above referred to are also charged to Keyes. Each side is footed, and then, below, is entered, “Balance.due J. Loeb & Co., $1,382.48.” This appears to be the balance of the two columns. It does not appear that this account was ever rendered to Keyes. It was not therefore a stated account. Allen v. Culver, 3 Denio, 284. The only account in fact rendered was dated J uly 5, 1893. That is- headed “ Statement,” and in it the note in suit was not charged to Keyes, and it does not appear whether the plaintiffs then held it. There was, however, a memorandum of this and the four other notes above referred to, and they are added to the charges against Keyes, the amount of credits is deducted, and a balance is shown due plaintiffs of $1,879.78. On July 11, 1898, the plaintiffs wrote Keyes, “ You will please send us settlement for balance due us, as per statement left with you by our Mr. E. Loeb, at once.” Kej'es did not respofid, and this suit was brought on August 12, 1893. We fail to see here any account stated which bound the plaintiffs to treat the note in suit as paid. We are of the opinion that the referee did not err in holding that the defense of payment was not made out. The defendants cannot complain of the amount of the recovery, as it is only for the amount conceded to be due from Keyes. The judgment should be affirmed.

Judgment affirmed, with costs.

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


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of James Stevenson et al., as Executors of Betsey Everts, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Executors — Accounting.
    Upon an accounting, the burden of impeaching the payment of a claim by the executor is on the contestant.
    2. Same — Services.
    In such case, where a daughter makes a claim against the estate of her deceased mother, for services rendered to the decedent, who lived with her, it cannot be presumed, as matter of law that there was no agreement that she should be paid for such services.
    3. Same — Individual claim.
    The executor, upon such accounting, is bound to establish his claim by legal evidence.
    4. Same.
    The evidence, in this case, was held insufficient to support a claim by a daughter against the estate of her deceased mother for services rendered to the decedent.
    Appeal from an order, settling the accounts of the executors.

      A. C. Phillips and F. A. Lyman, for app’lt; John E. Smith, for resp’ts.
   Merwin, J.

Betsey Everts died on the 16th September, September, 1891, leaving a will bearing date November 4, 1889, in which, after providing for the payment of debts and expenses, and devising to her son Henry, and his wife a farm for life, with remainder over to their daughter, and giving to her daughter A. Favilla Everts the sum of $1,600, which is stated to have been already advanced to her, she then gave to her daughters Mary E. Blair and Olarisse M. Harrison each the sum of $1,600. The residuary legatees were the four children above named of the testatrix. The personal estate, according to the account of the executors, amounted to about the sum of $3,500, and after the payment of debts and expenses there was, according to the decree appealed from, the sum of $3,022.16 applicable towards the payment of the legacies to Mrs. Blair and Mrs. Harrison, and one-half thereof was distributed to each. Upon the accounting Mrs. Harrison claimed that, in addition to the amount charged in the account, the executors should be charged with a note of $1,000 made by Mrs. Jackson, and a United States bond for $500. She also objected to the allowance to the executors of an item in the account of $100 paid to A. F. Everts for care of her mother, and to the allowance of an individual claim of the executrix, Mrs. Blair, of $124 for care and attendance upon her mother for 124 days, from May 15 to September 16, 1891. The surrogate declined to charge the executors with either of the additional items of assets, and allowed each of the claims for care. The correctness- of the decision of the surrogate as to each of these four items is challenged upon the appeal. It was shown, that at some time before her death the testatrix owned a $1,000 note made by Mrs. J aclcson and a $500 bond, It is not shown that either of these ever came into the possession of the executors, or that they were in the possession of the testatrix at the time of her death. There is evidence tending to show that the testatrix a short time before her death made a gift of the note to Mrs. Jackson, who is the daughter of Mrs. Blair, and that the bond was given by the testatrix to" her daughter Flavilla. Upon an accounting, the affirmative of establishing more assets than are acknowledged by the inventory and account is with the party objecting, and it should be established with reasonable certainty, and not left to mere conjecture or suspicion. Marre v. Ginochio, 2 Bradf. Sur. 165; Bainbridge v. McCullough, 3 Thomp. & C. 487 ; Redf. Law & Pr. Sur. Cts. (5th ed.) 797. No inventory had in the present case been filed previous to the accounting, but the appellant, about a year after the death, had á list of the property as claimed by the executors, and knew that the note and bond in question were not in it, but were claimed by the donees above referred to. No steps were taken to compel an inventory to be made. We are not prepared to say that the surrogate erred in holding, in substance, that a case was not made for charging the executors personally with the amount of the note and bond. No request was made for a directing to the executors to take legal proceedings to recover those items. Such a direction might have been given, according to the view taken of the power of the surrogate in Re Underhill, 117 N. Y. 471; 27 St. Rep. 720. The burden was on the contestant of impeaching the payment of the claim of A. Flavilla Everts. Boughton v. Flint, 74 N. Y. 477; Metzgar v. Metzgar, 1 Bradf. Sur. 265; In re Frazer, 92 N. Y. 239; It was shown that the deceased lived with her daughter Flavilla, but we have no right, according to the case of Ulrich v. Ulrich, 136 N. Y. 120; 49 St. Rep. 33, to presume as matter of law that- there was no agreement that Flavilla should be paid for her services. The burden of proof being on the appellant, we find no good reason for disturbing the conclusion ,of the surrogate that the claim had not be shown to be invalid.

The individual claim of the executrix stands on a different basis. She is bound to establish her claim by legal evidence. Code, §2731; Kyle v. Kyle, 67 N. Y. 408. The testatrix lived with her daughter Flavilla, and Mrs. Blair lived near them. The testatrix was an old lady, and on 15th May, 1891, she fell and broke her hip, and died on the 16th September, 1891. Mrs. Blair claims that she sat up with her mother every night from the time of her injury to her death, being 124 days. She testified that her mother was confined to her bed and unable to help herself, and required the services of a nurse night and day; that her sister Flavilla “ generally took care of her during the day, and I generally took care of her during the nights. I set up with her one hundred and twenty-four nights. It was worth one dollar per night. I was obliged to leave my home to take care of her nights.” There was evidence that the wife of the son Henry helped take care of the mother; was there when she could be, and some of the time stayed nights; also that Mrs. Harrison visited her mother during.the summer as often as she could; there several times, and sat up nights; and also that the grand-daughter Mrs. Jackson was at her mother’s eleven weeks during that summer, and came over frequently to Flavilla's and helped. There is also evidence that at the time the mother came to live with her daughter Flavilla, Mrs. Blair repeatedly, stated that she wanted her mother to live near her, so that if she was sick she could help take care of her, and repay her for what the mother had done for her; that after her mother’s death Mrs. Blair stated that her mother said she wanted her property equally divided between her children. These statements Mrs. Blair does not seem to deny. It was also shown that the mother told her son Henry repeatedly that she wanted her property equally divided between her children. The gift to Mrs. Jackson of the $1,000 note was claimed to have been made during the sickness of the testatrix. There is no evidence of any agreement between Mrs. Blair and her mother that Mrs. Blair should be paid for her service, or that there was any mutual understanding to that effect. The mere fact that one person labors for another is ordinarily sufficient to sustain the finding of an implied contract to pay therefor. But this rule does not apply when the services are rendered between members of the same family. In Williams v. Hutchinson, 3 N. Y. 312, 318, it is said:

“We find other motives than the desire of gain which may prompt the exchange of mutual benefits between them, and hence no right of action will accrue to either party, although the services or benefits may be very valuable. And this does not so much depend upon an implied contract that the services are to be gratuitous, as upon the absence of any contract or promise that a reward should be paid.”

The general rule is not disputed by the counsel for the respondents, but the claim is that it is not applicable here, because Mrs. Blair went from her own home to attend upon her mother, and therefore should not be deemed to be a member of the same family, within the rule. Reference is made to the case of Moore v. Moore, 21 How. Pr. 211, where a son, who did not live with testatrix, made a claim for professional services as a physician, and at page 223 it is said:

“ He places his right to recover on showing that he rendered meritorious and valuable services, which were accepted by the testator. Ordinarily, from the fact of rendition and acceptance of services, beneficent in their nature, the law will imply a promise to pay what the services are reasonably worth. This implication may not be repelled wholly by the fact that the service is rendered to a parent by a son of full age; -but the legal presumption of an obligation to pay is less strong when the relation of parent and child, exists than in the case of dealings between persons not bound to each other. If to the relationship be added other circumstances tending to show, as a matter of fact, that the services were gratuitously rendered, and without any expectation at the time on either side that payment was to be made, the law will not imply a contract for compensation.”

In Markey v. Brewster, 10 Hun, 16, there was a promise to pay. In Re Wells, 4 St. Rep. 878, a granddaughter, at the express request of the testator, left her own home, and performed services for the testator. The other cases cited do not seem to reach the present case.

In Wood, Mast. & S., § 73, the rule is stated to be that “in all cases where compensation is claimed for services rendered for near relatives, as a father, brother, grandfather, etc., the law will not imply a promise, and no recovery can be had unless an express contract or circumstances equivalent thereto is shown.” In 2 Pars. Cont. (8th ed.) 46, it is said:

“In general, whenever service is rendered, a contradi of hiring or an obligation to pay will be presumed.. But it is said not to be so where the service is rendered to the parent or uncle, or other near relative of the party, on the ground that the law regards such services as acts of gratuitious kindness and affection.”

In Burgess v. Burgess, 109 Pa. St. 316, it is said :

“ The law is well settled that between parent and child there can be no recovery for services or maintenance, unless upon proof of an express contract to pay therefor, and to establish such a contract requires the production of direct, clear, and positive evidence.”

In Zimmerman v. Zimmerman, 129 Pa. St. 229, the same doctrine was applied, even though at the time of rendering the service the son was not a member of his father’s family; and it was held that to support a claim for nursing or other services, such as filial duty or common humanity requires a son to render, there must be better proof than loose declarations of gratitude, and of an intention to compensate made bv a father in his last sickness. It is at least doubtful whether, under the circumstances of this case, Mrs. Blair, as to her claim, is in a better position than a member of'the family would be. The performance of a filial duty should not be placed on a pecuniary basis. Nor should it be said that a child* though living away from homfd, if he performed a service for his sick parent, should be entitled as matter of law to compensation as upon the obligation of a contract. But, at most, there was only the presumption of a promise to pay, and the question, then, is whether, upon the circumstances here shown, including the absence of any promise, the presumption is overthrown. Williams v. Finch, 2 Barb. 208. All of the children seemed to have aided in the caring for the mother. The mother expected that her property would be equally divided among her children. Still she had given her daughter Flavilla, with whom she had lived, and who had the main burden of her sickness, an additional $500. She gave the daughter of Mrs. Blair a thousand dollars, and this gift Mrs. Blair was active in having consummated during the sickness of her mother. This was indirectly for Mrs. Blair’s benefit, and was a large portion of the estate. It is not probable that the mother expected to. further compensate Mrs. Blair for her services. If she had, it would naturally have been so distinctly understood. The case is here upon the facts (Code, § 2586), and we are of the opinion that the evidence does not justify the allowance of the claim of Mrs. Blair. It follows that the decree should be modified by disallowing the claim of Mrs. Blair, and striking the amount thereof from the allowances made to the executors, so that the sum to be distributed to the legatees Mary E. Blair and Clarisse M. Harrison will be the sum of $3,146.16, instead of the sum of $3,022.16, and giving to each on her legacy the sum of $1,573.08; and, as modified, the decree should be affirmed, without costs of this appeal to either party.

Decree modified as stated in the opinion, and, as modified,' affirmed, without costs of this appeal to either party.

All concur.


text:
    Peter J. Doherty, Resp’t, v. John Shields, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Pleading — Common counts.
    The use of the common count is a sufficient compliance with the requirement of the Code that the complaint must state the facts constituting the cause of action.
    2. Same.
    The complaint in an action for the value of goods wrongfully converted, need not allege the facts which give the right to treat the conversion as a sale.
    3. Assumpsit — Conversion.
    The conversion may be waived and assumpsit brought, though the goods are still in the possession of the wrongdoer.
    4. Same — Bailment.
    Such right to sue is not affected by the fact that the goods came into the wrongdoer’s possession by means of a bailment, where he refuses to return them on demand.
    Appeal, from a judgment in favor of plaintiff.
    Babcock, Baxter & Gibson, for app’lt; S. S. Taylor, for resp’t.
   Merwin, J.

In the complaint in this case it is alleged that between the first day of January, 1891, and the 1st day of June, 1892, the defendant" became indebted to the plaintiff in the sum of $5,542.16, the same being for goods, wares, merchandise, stone and materials sold and delivered by the plaintiff to the defendant, and for goods, wares, merchandise, stone and materials belonging to and owned by plaintiff, and received by defendant, and for which the defendant promised and agreed to pay, and also for work, labor, and services performed by the plaintiff for the defendant, and for which the defendant promised and agreed to pay; that such goods, wares and merchandise, stone and materials, work, labor and services were reasonably worth the sum of $5,542.16, and that defendant had paid on account thereof the sum of $4,075.75, and no part of the balance had been paid. Then followed an itemized account of the claim in the form of a bill of particulars. Judgment was demanded for the balance, being the sum of $1,466.41. In the answer the defendant admits that he has paid the plaintiff the sum of $4,075.75, as alleged in the complaint, and denies all the other allegations. Payment in full is set up, and a counterclaim for damages for the failure by plaintiff to perform his agreement with defendant to build the necessary masonry on eight miles of railroad on the Lehigh Valley extension near Van Ettenville, and furnish the material therefor. The plaintiff, in his reply, admitted the making of the agreement substantially as alleged, but denied its breach, and alleged that the defendant released and discharged him from all obligations thereunder.

It appears that the defendant had a contract with the Lehigh Valley Railroad Company to do the grading and mason work on eight miles of railroad situate near Van Ettenville, N. Y., and made a subcontract with plaintiff to build the necessary mason work, and furnish material therefor at certain prices. ■ The plaintiff entered upon the performance of his contract in April, 1891, and continued at work until the last of July of that year. There was some dissatisfaction as to his work, and some misunderstanding as to his right to use native stone. The referee finds:

“The work of the plaintiff, Doherty, was then proceeding in a manner slow and unsatisfactory. He was losing money, and desired defendant, Shields, to take the contract off his hands, which the said defendant agreed to do on or about the last of July, 1891. The said contract was by mutual consent of the parties rescinded, and any cause of action which the defendant, Shields, may have had against the plaintiff for damages for his nonperformance of said contract was, by agreement of the defendant, waived and released. The defendant Shields then assumed full charge of said work, and completed the same.”

The referee also finds : That at the time of rescinding the contract and the taking hold of the work by defendant, there was no agreement made between the parties as to the material left on the ground. That there was left upon the ground materials, which had been drawn there by plaintiff under his special contract, consisting of certain quantities of cement, sand and stone, of the value of $925, being portion of the items stated in the complaint. That this cement, sand and stone was the property of plaintiff, and in July or August, 1891, the defendant, without the consent of plaintiff, appropriated it to his own use, and used it in the construction of said railroad work. That there had been built by plaintiff, prior to the rescission, masonry, which had been estimated and accepted by the engineers in charge, to the amount of $1,855.65; and there has been built by the plaintiff, before the rescission, masonry, which was afterwards measured and accepted by the engineers, to the amount of $1,527.25. . That on or about the last of July, 1891, the plaintiff was the owner of certain tools and implements necessary and proper to be used in the construction of the work, consisting of two derricks, of the value of $300, and a number of other smaller items, in all of the value of $375.16. That “ these articles of .property the defendant, at the time he took charge of the railroad work, requested the plaintiff that he allow the defendant to use in the work, and agreed to return them to the plaintiff on demand. The plaintiff allowed the property to remain and be used by the defendant in the work until about the month of September, 1891, at which time the plaintiff duly demanded of the defendant said articles of personal property. That the defendant refused to return and deliver said property to the plaintiff, and has wrongfully appropriated the same to his own use.” That the plaintiff delivered to the defendant 195 empty cement bags, for which the defendant received for the use and benefit of plaintiff the sum of $19.50, which he agreed to pay to the plaintiff. “That during the progress of the work by the plaintiff, and since that time, and before the commencement of this action, the defendant paid to the plaintiff, and to and for his benefit; and at his request, in paying laborers upon the work, whom the plaintiff was owing, and other indebtedness of the plaintiff incurred by him in the prosecution of said work, and upon the indebtedness of the defendant to the plaintiff as herein found, including the item of mason work in findings nine and ten, the sum of $4,075.75.” The mason work in findings nine and ten is the same above referred to as accepted by the engineers. The mason work and the property used or appropriated by the defendant, .including the item for bags, amount in the aggregate to $4,702.56, and are all included in the items stated in the complaint. After deducting the payments, there was a balance of $626.81, and for this, with interest from July 1, 1892, judgment was ordered.

We find no sufficient reason for disturbing the findings of fact by the referee. It is quite evident that the payments made were understood by both parties to be applicable, in the first instance, to the payment of the work accepted by the engineers. Those items amounted to $3,382.90, and the balance of the payments, being 692.85, was left to be applied on the other account. So that the real controversy here is over the materials and tools appropriated by the defendant. The proposition, therefore, of the defendant, that the plaintiff cannot recover for anything done .under the special contract, McCreery v. Day, 119 N. Y. 1; 28 St. Rep. 597, is not applicable.

The defendant claims that the complaint is not good, in that it does not state the facts constituting the cause or causes of action, but makes use of the form of the common count. In Allen v. Patterson, 7 N. Y. 476, it was held that such a complaint was in form good, and that view lias been taken by many authorities since. Cudlipp v. Whipple, 4 Duer, 610; Betts v. Bache, 14 Abb. Pr. 285 ; Griffin v. Jackson, 36 St. Rep. 110 ; Hentz v. Miner, 46 id. 636; Fulton v. Insurance Co., 4 Misc. Rep. 76; 53 St. Rep. 172; 1 Rum. Prac. 246. A bill of particulars was embodied in the complaint, and upon its face the complaint was good. Whether it was sufficiently definite, or whether there was a misjoinder (Code, § 499), are questions not available here.

The-referee allowed a recovery upon the theory that the plaintiff had the right to waive the tort, and sue in this form of action for the value, and, therefore, a further question upon the complaint arises, and that is whether it was necessary to allege the circumstances of the transactions which gave the plaintiff the right to treat the taking and appropriation by the defendant as a sale and' delivery, and so recover the value. Of a similar action it is said by Judge Johnson, in Harpending v. Shoemaker, 37 Barb. 291 : “ In such an action it was never necessary to state-in the complaint how, or under what circumstances, the money camp to defendant’s hands. That is mere matter of evidence.”- So it has been held that, in an action in replevin to recover goods obtained by a defendant through a purchase under fraudulent representations it was not necessary to allege in the complaint the facts going to establish the fraud, but the plaintiff might declare generally, claiming the property as his, and give the special facts in evidence on the trial. Hunter v. Machine Co., 20 Barb. 493; Bliss v. Cottle, 32 id. 322. The same rule would apply if the tort was waived, and the action was brought for goods sold and delivered. Roth v. Palmer, 27 Barb. 652; Weigund v. Sichel, 4 Abb. Dec. 595; Goodwin v. Griffis, 88 N. Y. 638. In Rochester Railway Co. v. Robinson, 133 id. 242; 44 St. Rep. 872, it was held to be good pleading under the Code of Civil Procedure to state facts according to their legal effect; and, when the fact to be stated is the result of other facts, the resultant facts, not those furnishing evidence thereof, should be stated. To the same effect is Thayer v. Gile, 42 Hun, 268; 5 St. Rep. 103, where it was held that under the general allegation of a conversion the plaintiff might show the facts and circumstances indicating that there was in fact a conversion. See, also, Boyce v. Brown, 7 Barb. 85. It would seem from these authorities that the plaintiff, under bis complaint, had the right to show the facts and circumstance under which the defendant became possessed of the property in question, and appropriated it to his own use.

But it is uged as to the derricks and other tools it is not shown that defendant has disposed of them, and therefore there cannot be a recovery as for goods sold and delivered. The contrary rule is, however, settled in Terry v. Munger 121 N. Y. 161; 30 St. Rep. 746.

But the defendant says there wms here a bailment, and the rule -does not apply. If it was a bailment, upon demand and refusal to deliver there was a conversion (Edw. Bailm., 2d ed., § 59), and then came the right of plaintiff to waive the tort, and sue as upon sale and delivery. No good reason is apparent for applying the rule to one case of conversion and not to another. In the Terry Case the rule is stated as a general rule. In Spoor v. Newell, 3 Hill, 308, it is said by Judge Co wen :

“In all cases of wrongful conversion of personal property, actual or constructive, I admit the plaintiff may waive the tort, and recover the value in an action for goods sold and delivered ; but he cannot, by changing the form of action, evade the rule requiring such proof of a conversion as would be necessary in any other form of action for the value. Actions ex delicto and ex contractu in such cases are concurrent, but the proof must be the same in each.”

The proof of demand was therefore properly received under the complaint.

One of the conclusions of law of the referee was that the complaint be amended so as to conform to the facts found., This is claimed to be error, within Romeyn v. Sickles, 108 N. Y. 650; 13 St. Rep. 684. If the views of the sufficiency of the complaint as above expressed are correct, there was no need of any amendment, and therefore the error, if there was one, was harmless.

The defendant suggests that under the evidence it should be said that the plaintiff consented that the defendant take the property. It should not, however, be said as matter of law that there was any understanding that the defendant should have it without paying its value. If not, then the defendant gets by the judgment all he would be entitled to have in any event, — he is charged with the value and credited the payments. We find no good reason for disturbing the judgment, and it should therefore be affirmed. Judgment affirmed, with costs.

All concur.


author: Martin J. Merwin, J.

text:
    In the Matter of the Estate of Degaramo, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Divorce — Foreign judgment.
    A divorce, obtained in a foreign state, will not be recognized in this state, were the parties were married and the defendant continued to be a resident here, and there was no personal appearance by him nor any personal service of process upon him within the state where the judgment was rendered.
    3. Death by wrongful act — Recovery—Distribution.
    Damages, recovered for death by wrongful act, will be distributed according to the law of the place where the death was occasioned.
    Appeal from a decree for distribution.

      H. Austin Clark and Theo. R. Tuthill, for app’lt; Howard J. Mead, for resp’ts.
   Martin J.

The fund which was distributed by the decree from which this appeal is taken was received by Ella Gr. Strong, the executrix of Anna M. Degaramo, deceased, in settlement of a ■claim against the New York, Lake Erie & Western Railroad Company for causing the death of the decedent by its negligence. The executrix was a resident of Tioga county, N. Y. The decedent died leaving personal property within the county of Tompkins, and leaving a last will and testament, which was duly admitted to probate by the surrogate of that county on the 14th day of December, 1891; and letters testamentary were thereupon issued to Ella Gr. Strong, as such executrix. The decedent, at the time of her death, was a resident of the state of Michigan. She died in the state of Ohio on the 3d day of October, 1891. Subsequently to the issuing of letters testamentary by the surrogate’s court of Tompkins county, ancillary letters testamentary were issued to the executrix by the probate court of one of the counties in the state of Ohio. On January 28, 1892, the surrogate’s court of Tompkins county made an order authorizing the executrix to settle or compromise such claim or cause of action against the railroad company; and subsequently she settled it for $1,000, and received that sum on such settlement. The expenses incurred in, and allowed by the surrogate for, settling and compromising such claim, was the sum of $216.58. The surrogate also allowed the executrix $50 for her commissions, leaving $733.42 to be distributed to the parties entitled to it. The question presented by this appeal is whether the brothers and sisters of the decedent, who were her heirs at law and next of kin, were entitled to have this fund distributed among them, or whether, as claimed by the appellant, it should have been paid over to William Degaramo, who was the husband of the decedent.

The decedent and William Degaramo were married in the state of Mew York more than ten years prior to the 3d of October, 1891. Since such marriage the husband has remained a resident of the state of Mew York. After the marriage the decedent went to the state of Michigan, and continued a resident of that state until the time of her death. Under the law of that state she obtained a divorce from her husband upon grounds which would not have been sufficient to authorizes divorce in this state. The husband did not appear in that action, and no process therein of any kind was ever personally served upon him. Mo action for a divorce was ever brought in this state. On the trial it was conceded that the laws of the state of Michigan and of the state of Ohio gave the fund in question to the husband of the decedent, if she died leaving one, but, if she had no husband at the time of her death, then, as the decedent died leaving no descendant, or representative of any descendant, surviving her, the fund would go to her brothers and sisters. If, therefore, she had no husband, the decree was proper, and should be affirmed, otherwise it should be réversed. To determine this question, it becomes necessary to consider the effect of the divorce granted to the decedent in the state of Michigan.

It must be regarded as settled in this state that a divorce obtained as this was did not in any way change the status of the defendant in this state. While another state may adjudge the status of its own citizen towards a nonresident, and other states must acquiesce so long as the operation of the judgment is confined to the state in which it was granted, still it cannot extend beyond the border of that state, to subvert the laws and policy of another state, nor, without his consent and against his will, fix upon a. resident of another state a status in hostility to the laws of the state wherein he resides. The contract of marriage cannot be annulled by judicial action, so as to bind a defendant without the limits of the state in which it is granted, unless the court awarditig such judgment acquires jurisdiction of him. And where, as in this case, there has been no personal service of process within the state where the judgment is rendered, and there has been no personal appearance by the defendant, a judgment of divorce is inoperative and void in this state. People v. Baker, 76 N. Y. 78; O'Dea v. O'Dea, 101 id. 23; Jones v. Jones, 108 id. 415; 13 St. Rep. 838 ; De Meli v. De Meli, 120 N. Y. 485 ; 31 St. Rep. 704; Rigney v. Rigney, 127 N. Y. 406 ; 40 St. Rep. 210; Williams v. Williams, 130 N. Y. 193; 41 St. Rep. 280. From the doctrine of these authorities, it follows, we think, that William Degaramo was the lawful husband of the decedent in this state, and in any other jurisdiction than the state of Michigan.

This leads us to the consideration of the question whether this fund should have been distributed in accordance with the laws of the state of Mew York, where the proceeding was instituted, under the laws of the state of Michigan, where the decedent resided at the time of her death, or under the laws of the state of Ohio, by which the right of action was given. By common law the plaintiff had no cause of action, claim, or right of recovery for the killing of her decedent. It is only by the force of some statute that her claim or right of recovery existed. Mo such right of recovery existed under the statutes of either the state of Michigan or the state of Mew York, as the statutes of those states could not operate extraterritorially. Therefore, it was only under and by virtue of the statutes of the state of Ohio, and of the fact that there is a similar statute in this state, that the liability of the railroad company could be enforced here. The right to enforce such a liability in a state other than that in which the person is killed is based upon the principle of comity due by one state or country to another under similar circumstances. Leonard v. Navigation Co., 84 N. Y. 48. Although such a right of action could be enforced in this state, the right to be enforced, was only that given by the statute of Ohio. The statute of that state (sections 6134, 6135, Rev. St.), so far as it gives a right of action for negligently or wrongfully killing a person, is in all its essential particulars like the statute of this state. As that statute expressly awards to the husband of the decedent the benefit of such a claim or cause of action, and as the rights of recovery and.distribution are controlled by the statute of the state of Ohio, it follows that the appellant, being the husband of the decedent, except as to his status in the state of Michigan, is entitled to the fund in question.

The contention of the respondents that this fund was a part of the assets of the estate of the decedent, and consequently should be distributed in accordance with the laws of the state of Michigan, where she resided, cannot be sustained. In Steel v. Kurtz, 28 Ohio St. 191. an action to recover damages for causing death by the wrongful act or negligence of the defendant, which was brought under a former statute of that state, it was held that the money realized from such an action was not to be treated as a part of the general estate of the intestate, but that the personal representative in whose name the action was brought was a trustee of the fund, and must distribute the proceeds according to the provisions of the statute. In Hegerich v. Keddie, 99 N. Y. 258, 268, it was, in effect, said that the cause of action given by such a statute is not to the estate of the deceased person, but to his or her representatives, as trustees, not for the purposes of general administration, but for the exclusive use of the beneficiaries specified in the statute; citing Dickins v. Railroad, Co., 23 N. Y. 158; Yertore v. Wiswall, 16 How. Pr. 8. The doctrine of that case was also recognized in Wooden v. Railroad Co., 126 N. Y. 10, 15 ; 36 St. Rep. 387; and in Dennick v. Railroad Co., 103 U. S. 11, 20. These considerations lead us to the conclusion that the learned surrogate’s court erred in holding that the fund in question was to be distributed according to the law of the state of Michigan, and in directing a distribution of the same among the next of kin of the decedent. Decree of the surrogate’s court reversed, and a new trial ordered, with costs to abide the event.

Hardin, P. J., concurred.

Merwin, J.

(dissenting). — The question whether within the meaning of the Ohio statute, decedent left a husband, should, I think, be determined according to the law of the residence of the decedent, in analogy to the rule applicable to the distribution of personal estates left by persons dying intestate. Rev. St. Ohio, § 6135. 2 Kent, Comm. p. 429 ; 2 Williams, Ex’rs (6th Am. ed.) 1626; Redf. Sur. Prac. (5th ed.) 651, 652, and cases cited. This was the course followed in the court below, and its decree should, T think, be affirmed.


author: Martin, J.

text:
    Levi Washburn, as Sheriff, etc., Resp’t, v. Carthage National Bank, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Attachment — Affidavit.
    A statement by the agent, in an affidavit for an attachment, as to no counterclaims, is sufficient to authorize the granting of an attachment, where it is also alleged that the affiant was the general agent of the plaintiff, was fully authorized to collect the notes by suit and was conversant with plaintiff’s business, but that the plaintiff was not conversant with it.
    Appeal from a judgment, entered on a verdict in favor .of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Van Allen & Allen and Watson M. Rogers, for app’lt; A. E. Kilby, for resp’t.
   Martin, J.

On and prior to May, 1892, Thomas Revell was operating a tannery in the village of Carthage. He was at that time indebted to Florence L. Merriam in the sum of about $1,363.36, and was also indebted to the defendant in about the sum of $6,300. On the 12th of May, 1892, Revell made a general assignment for the benefit of his creditors, which was subsequently set aside as to Mrs. Merriam and the defendant. On the trial the defendant claimed that, on the 9th or 10th of May, Revell verbally authorized it to take possession of the tannery and appurtenances, for the purpose of securing his indebtedness to it. On the 20th of May a suit was commenced by Mrs. Merriam upon her claim, an attachment was granted, and on that day a deputy of the plaintiff executed the attachment by levying upon certain personal property of Revell, including 272 cords of tan bark and a quantity of tanning liquor in the vats at such tannery. At the time the attachment was levied, the' tannery was in operation, hides were in liquor in the vats, and the bark was in the yard. The tannery was the property of Mr. Dickerman. The hides belonged to Albert J. Foster. The contract between Foster and Revell for tanning these hides had been assigned to the defendant, as collateral security for Revell’s indebtedness, but it did not realize enough thereon to pay its indebteddess within about $1,000. After the attachment was levied, the property was left upon the premises, with the consent of the owner of the tannery ; and the plaintiff, by his deputy, forbade the defendant’s employee from interfering with or using the property he had attached. Notwithstanding this, the defendant used the liquor and a large quantity of the bark levied upon. It was to recover the value of the liquor and bark thus used that this action was brought. .

The principal contest on the trial, so far as the right of the plaintiff to recover was concerned, was whether, before the levying of the attachment upon the property in question, Revell had made a valid transfer or pledge of the bark and liquor in question to the defendant, to secure his indebtedness to it. While it was shown that the defendant had made claim to the property under certain chattel mortgages, yet the only claim now made by the defendant is under the alleged transfer or pledge. The question whether there was such a transfer or pledge was submitted to the jury, and it found there was not. After examining the evidence bearing upon this question, together with the circumstances attending and surrounding the transaction disclosed, we are satisfied that the question whether there was such a transfer or pledge was one of fact for the jury, and we see no reason to disturb its finding thereon.

The appellant also contends that the verdict was wrong so far as it found against the defendant the sum of $300 for the liquor in the vats which was used by it. It was shown by the evidence of witnesses called by the plaintiff, and by the defendant as well, that the liquor in question was worth from $300 to $800. The jury found its value to be $300. That it was of that value to the defendant there can be no doubt. Nor is there any question but that it would have been of that value to any person who had occasion to use it at once in the vats where it was. But the appellant insists that, as its removal to another place or a failure to use it at once would have rendered it valueless, the plaintiff should recover only nominal damages, although it may have been of much greater value to the defendant than the sum allowed by the jury. We do not think this contention should be sustained. As the proof disclosed the value of the property at the time when and place where it was taken by the defendant, we think the plaintiff was entitled to recover its value at that time and place, and that the jury was not bound by the speculations or statements of witnesses as to what its value might have been under other circumstances or conditions.

We think that the defendant’s contention that the affidavits upon which the attachment was granted were insufficient cannot be sustained. The particular contention made by the defendant is that they omitted to state that the plaintiff was entitled to recover a sum stated, over and above all counterclaims known to him, and that the affidavit was in part upon information and belief, and the sources of his information and the grounds of his belief were not stated. It is perhaps fair to the appellant to say that this .point was made upon the proof as to the contents of one of the affidavits, and not upon the affidavit itself, it not having been produced at the trial, but having been subsequently received and made a part of the case. An examination of the papers upon which the attachment was granted discloses that it was granted upon the complaint, verified by Scudder Todd, who was the agent of the plaintiff, and who, in his affidavit of verification to the complaint, stated that he had full charge of the plaintiff’s business, knew the facts set forth in the complaint, and that the plaintiff personally did not. None of-the allegations of the complaint were upon information and belief. They disclosed that the defendant was indebted to the plaintiff for the amount claimed, and that no part thereof had been paid. Todd also verified the additional affidavit used in procuring the attachment. After stating the grounds of theactiou, it was stated therein that the plaintiff was justly entitled to recover from the defendant $1,363.86, with interest thereon from February 10, 1892, and that there were no counterclaims, discounts, or offsets existing in favor of the defendant, to the knowledge or belief of the deponent. It was also stated that the deponent was the general agent of the plaintiff, was fully authorized to collect the notes by suit, and was conversant with the plaintiff’s business, and that the plaintiff was not conversant with it. These allegations were, we think, a sufficient compliance with the statute; and, although they did not conform to its precise wording, yet they were within the spirit of its provisions, and sufficient to give the judge jurisdiction to grant the attachment. Lamkin v. Douglass, 27 Hun, 527; Edick v. Green, 38 id. 202, 209 ; Billwiller v. Marks, 21 Civ. Pro. R. 162; Mallary v. Allen, 15 Abb. N. C. 338; Bates v. Pinstein, id. 480; Central Nat. Bank of Troy v. Ft. Ann Woolen Co., 27 N. Y. Supp. 1114, affirmed on opinion of special term (N. Y. App.) 57 St. Rep. 316 ; Nason Manuf'g Co. v. Craft Refrigerating Mach. Co., 81 Hun, 578 ; 63 St. Rep. 224. That the complaint and affidavit together contained a sufficient specification of the ground of the plaintiff’s claim we have no doubt. The plaintiff’s right to maintain this actian for the conversion or destruction of the property attached cannot be successfully challenged. It seems to be well settled that an officer who attaches personal property in the manner prescribed by law acquires a special property therein, which enables him to maintain an action in the 'nature of trover against any person who unlawfully interferes with it. 26 Am. & Eng. Enc. Law, p. 750, and cases cited.

We have examined each of the several rulings to which our attention has been called by the appellant in its brief, but have found none that would justify us in reversing the judgment, or that need be specially discussed.

Judgment and order affirmed, with costs.

All concur.


text:
    Sidney Glass Works, Resp’t, v. A. S. Barnes and Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Contbact — Acceptance.
    An acceptance, if it is not of the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, does not constitute a contract and amounts to a virtual rejection of the offer.
    8. Same — Wbitinu.
    Correspondence, which indicates that it is the intention of both parties that there should be a formal, written contract between them, is simply preliminary, and cannot be regarded as an absolute or final contract.
    3. Same — Rescission.
    The facts were held to establish that the rescission by one was acquiesced in by the other party.
    Appeal from a judgment in favor of plaintiff.

      Wagner & Fisher, for app’lt; James R. Blaumes, for resp’t.
   Martin, J.

This action was brought to recover the value of a quantity of glass bottles furnished by the plaintiff to fendant. The answer interposed, so far as material to the questions involved upon this appeal, was that the defendant made a contract with the plaintiff to furnish it, between the 1st of January, 1893, and the 1st of January, 1894, about 5,450 gross of bottles as they should be needed by it; that the bottles for which this action was brought were delivered in pursuance of that contract, but that the plaintiff neglected to deliver the remainder of the bottles so agreed to be furnished when called for, or- within a reasonable time after they were ordered, and thereby failed to perform the contract upon its part; and an affirmative judgment was demanded against the plaintiff for the sum of $243.47. It was conceded on the trial that the defendant had had the number of bottles for which this action was brought, and the undisputed proof was that they were of the value claimed, except that portion which was broken. The learned referee found that the value of the bottles delivered to the defendant was the sum of $766.70; that the defendant had paid thereon the sum of $122.22 ; that the defendant was entitled to be credited" for the breakage of the bottles so shipped, which amounted to the sum of $168.87; that the broken bottles were not accepted by the defendant; that the plaintiff was entitled to recover $495.61; and awarded judgment accordingly.

The most important question raised upon this appeal is whether there was a contract between the plaintiff and the defendant by which the plaintiff agreed to furnish the defendant 5,450 gross of glass bottles. There was no such contract, unless contained in the letters which passed between the defendant and a firm to whose rights the plaintiff has succeeded. Passing for the present the suggestion that the plaintiff was not liable upon a contract not made with it, but with such firm, the question is presented whether the correspondence which passed between the original parties was sufficient to constitute a contract for the sale of the .number of bottles mentioned. The appellant relies mainly upon two letters to establish the contract, — one written on December 5, 1892, by the defendant to the plaintiff’s predecessor; and the other written by the plaintiff’s predecessor to the defendant, on the 6th of December, 1892. An examination of the correspondence which preceded these letters shows that the parties had been negotiating for some time in regard to the manufacture for and sale to the defendant of such bottles as it should require for its business, and the plaintiff's predecessor had given the defendant prices at which the firm would furnish the different kinds of bottles required by the defendant in its business. The defendant’s letter of December 5th was as follows:

Gentlemen : The following is about the quantity of glass we will need- from January 1st, 1893, to January 1st, 1894. If we should not use this number in the given time, we will order from you until the quantity is exhausted, and, if we should need any more, we trust you will be able to fill our orders.”

The number and size of the bottles were then given as stated in the following letter. To this letter the plaintiff’s predecessor replied :

“We are in receipt of your esteemed favor of the 5th instant, and enter your order for 750 gross quart inks, 700 gross pint inks, 500 gross one-half pint inks, 500 gross 4 oz. inks, 500 gross 3 oz. inks, 1,500 gross 2 oz. inks, 400 gross one and one-half oz. inks, 500 gross 1 oz. inks, to be delivered to you as you may need them between January 1st, 1893, and January 1st, 1894. We do not think there will be any difficulty whatever in keeping you supplied at all times, and of giving you even more than you have asked for, if you will give us any reasonable opportunity to make ready for you.”

The referee held that the letter of the plaintiff’s predecessor was not such an acceptance of the propositions contained in the letter of the defendant as to constitute a contract. The correctness of that holding is challenged by the appellant.

It seems to be well settled that if one party makes to another an offer by letter, and the offer is of a character which implies nothing to be done by the latter except to assent or decline, and he, by letter, accepts, adding no qualification, condition or reservation, there is a mutual consent, and a contract is created by such letters. But, even where there is an acceptance, if it is not of the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, then no contract is made, and the proposition to accept with such modifications is a rejection of the offer. Bisb. Cont. §§ 176, 179; 1 Pars. Cont. 477 ; Myers v. Smith, 48 Barb. 614; Brown v. Railroad Co., 44 N. Y. 79 ; Nundy v. Matthews, 34 Hun, 74; Myers v. Trescott, 59 id. 395; 36 St. Rep. 235 ; Barrow Steamship Co. v. Mexican Cent. R. Co., 134 N. Y. 15 ; 45 St. Rep. 379; Marschall v. Eisen Vineyard Co., 28 N. Y. Supp. 62. We are disposed to agree with the learned referee in his conclusion that the correspondence was insufficient to establish a contract between the parties. It is not entirely clear that the letter of the defendant can be treated as an order to the plaintiff’s predeccessor for the quantity of glass mentioned in it. It is commenced by stating about the quantity the defendant will need, and, if it should not use that quantity between the times mentioned, it would order of the plaintiff until the quantity was exhausted ; and then it is added that, if it should need more, it trusted that the plaintiff would be able to fill the order. To this letter the plaintiff answered, acknowledging the receipt of it, stating that they had entered its order, which was for the goods mentioned, to be delivered as “you may need them between January 1st, 1893, and January 1st, 1894," and then stated that it did not think there would be any difficulty in keeping the defendant supplied at all times, and of giving it more than it asked for, if it would give them a reasonable opportunity to make ready for it. We do not think this letter can be held to have been an unconditional acceptance of the defendant’s order, without qualification or reservation, so as to make a contract under the authorities cited. Indeed, it is doubtful if it can be regarded as a positive acceptance of the offer made. While it was stated that they had entered the order in the language contained in the plaintiff’s letter, as to the time of delivery, they do not in terms agree to deliver in accordance with such statement, but simply write that they have entered the order, and then add that they do not think there will be any difficulty in keeping the defendant supplied, thus conveying the idea quite clearly that they do not intend to absolutely undertake to deliver the bottles as they should be needed by the defendant between the times mentioned, but think they will have no difficulty in doing so; and when they add, in effect, that they must be given a reasonable opportunity to get ready for the defendant, a condition is interposed which is neither contained nor suggested in the letter of the defendant. We think these qualifying words are such as to bring this case within the doctrine of the authorities cited.

When all the correspondence is examined, it will be seen that an intention was expressed by both parties that there should be a formal written contract between them. If such was their intent, then this correspondence was simply preliminary, and cannot be regarded as an absolute or final contract. Telegram Co. v. Smith, 15 St. Rep. 19.

After the letters were written, which the defendant claims constituted the contract, and after the plaintiff had furnished a portion of the goods, the defendant complained because they were not furnished more promptly, and in larger quantities. The reason for this delay was explained by the plaintiff in various ways. Finally, on March 16th, after having several times stated to the plaintiff that, unless it furnished goods more promptly, the defendant would have to countermand the balance of its order, it wrote: “We therefore countermand our orders, and request you to ship, via freight, to the above address, all our molds.” On the 18th of the same month it again' wrote to the plaintiff: “As yet we have heard nothing from you in reply to our letter of the 16th instant We must now demand the return of our molds, and we again countermand our orders. Ship, what stock you have made up, and when your bills are due they will be promptly paid.” The plaintiff’s testimony was to the effect that it was willing to fill the orders of the defendant if it had had the opportunity, and that in returning the molds, accepting the countermand of the defendant’s order, and shipping the stock on hand as directed by the defendant in its letter of March 18th, it relied upon the statements contained in the defendant’s letter countermanding or rescinding such order, and upon its promise that, upon the shipment of the stock it had made up, the plaintiff’s bills would be promptly paid when they became due. Thus it would seem from the evidence that on March 18th the defendant countermanded its order to the plaintiff, and thus broke the contract upon its par-t, but expressly stated to the plai ntiff that it should ship what stock it had made up, and that the defendant would pay for it promptly as the bills, became due. This statement the plaintiff acted upon, and returned the defendant’s molds, and shipped the stock it had made up. The evidence, we think, shows an agreement upon the part of the defendant, which was accepted and acted upon by the plaintiff, to the effect that the contract, so far as it was not performed, was to be rescinded, with an express provision or reservation that the plaintiff should have pay for its goods shipped and to be shipped. Under these circumstances the defendant was not, we think, entitled to recover the damages claimed in this action. In other words, the defendant could not recall its order, and recover of the plaintiff for the breach of a contract which had been rescinded by it, except as to the right of the plaintiff to compensation for its goods already manufactured. Hadden v. Dimick, 13 Abb. Pr. (N. S.) 136; Lawson, Rights, Rem. & Prac. § 2568, and cases cited; Martin v. Insurance Co., 73 Hun, 496; 56 St. Rep. 149; Cassidy v. Aldhous, 7 Misc. Rep. 543; 58 St. Rep. 49. The defendant having refused to permit the further performance of the contract by the plaintiff, it was entitled to.recover the value of the goods furnished by it. Powers v. Hogan, 6 St. Rep. 239. Nor is it quite clear, upon the proof before us in this case, that the defendant could, in any event, recover damages of the plaintiff for the breach of a contract made with its predecessor. Hall v. Herter Bros., 31 N. Y. Supp. 692.

Judgment affirmed, with costs. All concur.


text:
    Adele N. Sanford, App’lt, v. Commercial Traveler's Mutual Accident Association of America, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Contracts — V aridity.
    A stipulation in a contract that any action thereon should be tried before a referee is void.
    Appeal from an order, directing the issues to be referred to a referee to hear and determine.

      D. M. Kellogg, for app’lt; M. W. Van Auken, for resp’t.
   Martin, J.

This action was to recover upon a policy or certificate of insurance issued by the defendant, and was not an action in which a compulsory reference could have been properly ordered, under the provisions of the Code of Civil Procedure. The order directing a reference was based solely upon a stipulation the or certificate of which was as follows:

“ It is hereby stipulated and agreed by and between this association and the member named herein and his beneficiary that the issues in any action brought against this certificate shall, on the demand of this association or its attorney, be referred for trial to a referee to be appointed by the court in which such action is brought.”

Thus the single question to be determined is whether this provision is valid and binding upon the parties.

It is well settled by a long line of both American and English authorities that a general covenant or agreement that any differences that may subsequently arise in the performance of a contract, or under an executory agreement, shall be submitted to the decision of arbitrators or referees, will not oust a court of law or equity of jurisdiction, and that judicial powers in regard to the property and rights of parties cannot by such an agreement be conferred upon others, to the exclusion of the jurisdiction of the courts. Kill v. Hollister, 1 Wils. 129; Mitchell v. Harris, 2 Ves. Jr. 129; Thompson v. Charnock, 8 Term R. 139; Street v. Rigby, 6 Ves. 815; Scott v. Avery, 5 H. L. Cas. 811; Horton v. Sayer, 4 Hurl. & N. 643; Roper v. Lendon, 1 El. & El. 825; Cooke v. Cooke, L. R. 4 Eq. 77; Hope v. Society, 4 Ch. Div. 327; Gray v. Wilson, 4 Watts, 39; Stone v. Dennis, 3 Port. (Ala.) 231; Allegre v. Insurance Co., 6 Har. & J. 408; Randel v. Canal Co., 1 Har. (Del.) 234; Robinson v. Insurance Co., 17 Me. 131; Cray v. Insurance Co., 1 Blatchf. 280, 388. Fed. Cas. No. 3,375; Percival v. Herbemont, 1 McMul. 59; Smith v. Railroad Co., 36 N. H. 487; Leonard v. House, 15 Ga. 473; Hill v. More, 40 Me. 515; Peters' Adm'r v. Craig, 6 Dana, 307; Tobey v. County of Bristol, 3 Story, 800, Fed. Cas. No. 14,065; Rowe v. Williams, 97 Mass. 163; Haggart v. Morgan, 6 N. Y. Supr. Ct. 198; Austin v. Searing, 16 N. Y. 112; Hurst v. Litchfield, 39 id. 377; Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 id. 258; Poultney v. Bachman, 10 Abb. N. C. 253; Wells v. Monihan, 129 N. Y. 161; 41 St. Rep. 409; Wicks v. Monihan. 130 N.Y. 232; 41 St. Rep, 256; Bauer v. Lodge, 102 Ind. 262; Supreme Council v. Garrigus, 104 id. 133; Insurance Co. v. Morse, 20 Wall. 445; Mentz v. Insurance Co. 79 Pa. St. 478; Wood v. Humphrey, 114 Mass. 185; Insurance Co. v. Etherton, 25 Neb. 505, 508; Reed v. Insurance Co., 138 Mass. 575; Assurance Co. v. Hocking, 115 Pa. St. 407; Leach v. Insurance Co., 58 N. H. 245; Noyes v. Marsh, 123 Mass. 286. It seems that a condition in a policy of insurance limiting the place where, or the courts in which, an action may be brought, is also invalid. 11 Am. & Eng. Enc. Law, p. 352; 5 Lawson, Rights, Rem. & Pr. § 2085; Bliss, Ins. § 360; Reichard v. Insurance Co., 31 Mo. 518; Nute v. Insurance Co., 6 Gray, 174; Hall v. Insurance Co., id. 185; Amesbury v. Insurance Co., id. 596, 603; Boynton v. Insurance Co., 4 Metc. (Mass.) 212; Insurance Co. v. Morse, 20 Wall. 445; Barron v. Burnside, 121 U. S. 186. In these cases the general proposition was maintained that agreements in advance to oust the courts of jurisdiction conferred by law was illegal and void; and it was held that while any such right might be waived, or its exercise omitted, in each recurring-case after the question had arisen, yet a party could not bind him-, self in advance by an agreement thus to forfeit his rights. In Greve v. Insurance Co., 81 Hun, 28; 62 St. Rep. 566, a doctrine in conflict with the authorities cited seems to have been held. In that case the policy contained a provision that any suit or action for the enforcement of any claim under it should be brought and maintained only in the courts of Warren county; and the court held that that provision was not in contravention of public policy, but valid, and binding upon the parties. The" decision in that case was based upon In re New York, L. E. & W. R. Co.. 98 N. Y. 447, which, the 'court held, conclusively disposed of the question. In the Railroad Case, the owner of certain real estate, which the company desired to acquire, entered into a contract to sell and convey the premises to the corporation for a price to be. ascertained in proceedings to be instituted under the railroad act. The agreement named the commissioners who should be appointed, and it was- held that it was valid. The principle of that case seems to us be to .entirely distinct and essentially different from the principle applicable to a case where provisions like the one under consideration have been brought in question. In the Railroad Case there wás a present contract to sell, and the parties-simply made an agreement as to the manner of determing the-price to be paid. Such an agreement was valid, within all the authorities. They might have agreed to have it determined by arbitration or by reference, and such an agreement would have been valid. The principle of the cases cited was entirely inapplicable to such a question. In that case there was a present issue or question to be determined, and the parties agreed as to the manner in which it should be determined. That they clearly had the right to do. But in this case the provision in the policy was for the determination- of such matters and differences as might in the future arise in the performance of this contract, and attempted in advance to designate the tribunal which should determine those rights when they should arise. We think the Railroad Case is. clearly distinguishable from this. While we are not satisfied that the decision in the Qreve Case is correct, yet, as the question in that case is unlike the one under consideration here, it is unnecessary to further discuss it, or to expressly dissent from the doctrine there laid down, We are of the opinion that the weight of authority is to the effect that such a provision as that contained in the policy in this case is a nullity, and in no way ousts or limits the jurisdiction of the court, or affects the law relating to the method in which such an acting should be tried. That after the right of action had sprung into existence the defendant might have waived her right to a trial by jury, and consented to a reference, there can be no doubt Code Civ. Proc. § 1009. But parties cannot, in advance, by a general agreement, provide that their differences shall be submitted to arbitrators or referees, and thus entirely oust the court of its jurisdiction ; nor can they by such an agreement oust the court of any part of its jurisdiction, or supersede the law which provides the method of trial, and regulates the proceedings in an action. The plaintiff had a right to a trial by jury. The court, under the law, had control over the proceedings in the action.' The agreement under consideration, so far as its effect would be to foreclose or change such right or control, was invalid. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.

All concur.


text:
    William Youmans, Resp’t, v. Julia D. Forsyth, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Evidence — Opinion op court.
    Where, after a cause has heen partly tried by the court and some of the issues decided, it is referred by consent, it is error to admit in evidence, on the hearing before the referee, the opinion of the court, in which it expressed its views on some of the referred issues.
    Appeal from a judgment in favor of plaintiff.
    The appeal book discloses that the issues in this action were brought to trial before a special term of this court, December 16, 1890, and that, after the case was partially tried, the following order was made and entered: “The above-mentioned action at issue, and being Mo. 18 upon the calendar of this court at the above mentioned term, and the same having been reached and brought on for trial at said term, and" the issues herein relating to the demand in the complaint for specific performance therein alleged having been tried at this term before the justice above named, and a decision having been reached and rendered by this court in favor of the defendant against the plaintiff upon the question of specific performance mentioned in said complaint, and the parties hereto in open court consenting that all the other issues herein should be referred as hereinafter stated, it is hereby ordered that this action, and the issues therein, except such as have been heard and decided by the court as above set forth, be and the same hereby are referred to Hon. Joseph Mason, counselor at law, to hear, try, and determine the same.” Under and in pursuance of this order, the case was tried before the referee named, wrho found in favor of the plaintiff, and directed a judgment in his favor for $1,1578, with interest from the 1st day of June, 1893, besides costs.

      W. B. Matterson, and A. F. Gladding, for app’lt W & G. W. Youman, for resp't.
   Martin, J.

While there was a sharp and direct conflict in the evidence in this case, yet we are inclined to the opinion that it was sufficient to justify the referee in .finding that the plaintiff purchased the farm and personal property in question for the defendant, and in pursuance of her agreement that she would purchase the same from him at the price paid by him therefor, take title to the same, give him a bond and mortgage to secure the payment of the purchase price, and assign and transfer to him her interest in the estate of Henry Johnston, deceased, as collateral security therefor, and in finding that the defendant, after, she became twenty-one years of age, with a full knowledge and understanding of all the matters involved, ratified and affirmed such contract, and agreed to execute the same upon her part by giving the security mentioned. We are also of the opinion that the evidence justified the referee in finding that the defendant went into the possession of the property, real and personal, under such agreement, and had the use and benefit of it until she left the premises in May, 1890. The defendant having thus affirmed this contract after she became of age, she could not retain the benefits of it and yet plead infancy to avoid her liability therefor. Henry v. Root, 33 N. Y. 526 ; Aldrich v. Funk, 48 Hun, 380 ; 16 St. Rep. 503 ; Walsh v. Powers, 43 N. Y. 26 ; Beardsley v. Hotchkiss, 96 id. 201; Kincaid v. Kincaid, 32 N. Y. Supp. 476.

On the trial of this action before the referee, the plaintiff offered in evidence a paper which was called the opinion rendered on the trial before Mr. Justice Smith,” which was as follows:

The Court: There is only a single question here, and I have my ideas firmly established on that question. I think I shall have to find that there was this agreement, made between the plaintiff and defendant, that she was to buy the farm and give this claim as security. But, as to what she has said since she became of age, the difficulty is that she Has evaded a ratification of this contract, so, in my opinion, there is no sufficient ratification to compel a specific performance of the contract, and I think this action comes right down to action of accounting. I think there should be an accounting taken of the rental value of this property and an accounting for the property. I think this defendant was liable after she became of age, but, as to the time before that, I would not pass upon that without looking at the law in regard to it; that is, as to whether she, having had the benefit of the property, is not liable for it. I suggest that this action be referred to some good referee to hear, try, and determine ; and I assume that the referee would adopt the ruling of the court that there could be no specific performance of this contract, and it would be an action for an accounting, In which the plaintiff could have her counterclaim determined, and that can be brought up before the referee. I think the defendant'could have the costs of their witnesses here on the equity question. The parties in open court consent to a reference to hear, try, and determine, they to agree upon a referee, and if they cannot agree the court will appoint. The court has determined, however, that the plaintiff is not entitled to his specific performance of the contract claimed in the complaint, which question is withdrawn from the consideration of the referee, and all the other questions are referred to him. The plaintiff must pay the defendant the disbursements of this term; that is, the witness’ fees.”

This paper was “objected to as incompetent, immaterial, and no foundation laid for it, and as not bearing upon the issues here ; that the issues in this action before this referee are defined and determined by the pleadings and the order of reference; also, as hearsay, and not within the issues, and not controlling upon this court and referee.” These objections were overruled, and the defendant excepted. We do not see how this ruling can be sustained. There was no proof that the paper was even what it purported to be, and consequently there was no foundation laid for its admission, even if under any circumstances such a paper would be admissible. The most that can be claimed for this paper is that it contained an expression of the opinion of the trial justice upon the questions at issue, so far as they had been tried before him. It is manifest from the disposition made of the case that it had not been fully tried, so that it was, at most, his opinion upon a partial presentation of the evidence to him. IIow such an opinion could be admissible in evidence before this referee we are unable to perceive. The only question the justice had decided was that a specific performance of the contract could not be had. All the other issues made by the pleadings were referred to the referee to hear and determine. We do not perceive why the opinion of any other judge or lawyer who was acquainted with the facts would not have been as admissible as this. It cannot be said that this error was harmless. This paper purports to contain a statement by the trial justice that there was an agreement between the plaintiff and defendant that she was to buy the farm and give this claim as security, and that she was liable for the property and the rental value of it after she became of age. These were vital and seriously contested issues which were being tried before the referee, and upon which the evidence was slight and contradictory. To say that the opinion of a justice of this court upon such a question would have no influence upon the mind of a referee is according to such opinion less importance than naturally would be given to it. It may well be that the referee felt bound to yield to the opinion of the learned trial justice upon those questions, and did not exercise that independent judgment that he otherwise would. We think the referee erred in admitting this evidence, and that for such error the judgment should be reversed.

The appellant presents several other questions which relate to the amount, rather than to the plaintiff’s right of recovery, but, as the judgment must be reversed for the error already pointed out, we deem it unnecessary to examine those questions, as it is reasonable to suppose that none of them that have merit will arise upon a retrial of this action.

Judgment reversed upon the exceptions, and a new trial ordered, with costs to abide the event.

All concur.


text:
    Robert J. Davis et al., as Administrators, etc., Resp’ts, v. Spencer Davis, Impleaded, etc., App’lt.

      (Supreme Court. General Term, Fourth, Department,

      Filed May 4, 1895.)

    1. Limitations — Trustee.
    The statute of limitations does not begin to run against the beneficiary, until the trustee has openly, to the knowledge of the beneficiary, denied, disclaimed or repudiated the trust.
    2. Witness — Section 829 of the Code.
    The benefit of section 829 of the Code is not waived by the representative, by his asking a witness on cross-examination, the question whether the intestate was present at a certain transaction, as the information sought is necessary to show that what took place on such occasion is incompetent. ,
    Appeal from a judgment in favor of plaintiffs.

      Risley, Robinson & Love, for app’lt; Goodier & Wolcott, for resp’ts.
   Martin, J.

The purpose of this action was to secure a deterínination as to the title to certain moneys deposited with - the defendant the Saving Bank of Utica in the name of the defendant Davis. These moneys were claimed by the plaintiffs as the personal representatives of Ebenezer Davis, deceased, and were also claimed by the, defendant Spencer Davis. The undisputed evidence shows that on the 10th day of Januarjq 1876, the sum of $250 was deposited in the bank in the name of Spencer Davis, that the money thus deposited was handed to an officer of the bank by the defendant Davis, and that on April 1, 1876, the plaintiffs’ intestate, in the absence of the defendant Davis, deposited to the credit of the same account the further sum of $150. Both of these were deposits of money belonging to the decedent, unless there was a valid gift of the same by him to the defendant Davis. The question principally litigated was whether the money thus deposited was intended by the decedent as a gift to the defendant Spencer Davis, or whether, as claimed by the plaintiffs, the money -was deposited in his name for the decedent, without any intent on his part to give him the money so deposited. Upon that question the referee found that the money belonged to the decedent, and that the plaintiffs, as his legal representatives, were entitled to it. He also found that there was no gift to the appellant of either of the sums mentioned. This conclusion was based upon the grounds (1) that the decedent at the time was of unsound mind, and incapable of making a gift; and (2) that there was no intention on the part of the decedent to make any such gift. A thorough examination of the evidence has led us to the conclusion that it was sufficient to - justify the findings of the referee upon the questians of fact, and that as to those questions the decision of the referee should be regarded as final.

The appellant, however, insists that the plaintiffs’ cause of action was barred by the statute of limitations. We think not. The evidence tends to show that the money was deposited in the name of the defendant Davis under an express agreement made with the decedent that it might be deposited in his (Davis’) name for the benefit of the decedent, and that it was to remain his money, although deposited in the name of "Davis. The referee has so found. Under such circumstances, Davis, so far át he had control of this money, became a trustee of an express trust, holding it as such for the benefit of the decedent. In such cases the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, denied, disclaimed, or repudiated the trust. Decouche v. Savetier, 3 Johns. Ch. 190; Perry, Trusts, §§ 863, 864; Reitz v. Reitz, 80 N. Y. 538 ; Kane v. Bloodgood, 7 Johns. Ch. 90; Hamer v. Sidway, 124 N. Y. 538, 549 ; 36 St. Rep. 888; Zebley v. Trust Co., 139 N.Y, 461; 54 St. Rep. 721. We find no evidence in the case which even tends to show that anything ever occurred between the plaintiffs’ intestate and the defendant Davis to indicate that the latter in any way disclaimed the arrangement made between them under which the plaintiffs claimed these moneys, or that the defendant Davis ever openly, to the knowlege of the beneficiary, disclaimed or repudiated the trust.

On the trial the defendant Spencer Davis was called as a witness, and testified that he saw the passbook in question ; that he was the Spencer Davis mentioned in it, and bad that book; that he got it at the savings bank at Utica; and that he made a deposit of $250 at the time he received the book. Upon his cross-examinatian he testified that the plaintiffs’ intestate was with him on that day, and that he went into the bank with him when he made the $250 deposit. On the redirect examination he was asked, “What was said and done by you and Ebenezer at the time the deposit of $250 was made.” This, was objected to as incompetent, under section 829 of the Code, — incompetent and immaterial. The objection was overruled, and an exception taken. The witness answered:

“Ebenezer didn’t say anything to me at the bank, — only pulled out the money, and handed it to me. The amount was $250. He said he would give me that money, and I was to leave it in the bank as long as he lived, and then I should take it out, and do what I had a mind to with it. I think that is all that was said. He said it at the time he handed me the money. The money had not been handed to me until I made the deposit. I handed the money into the bank, and got the passbook. Exhibit 2.”

The plaintiffs’ counsel then asked the referee to strike out the testimony of the witness on the redirect examination as to the transaction when the money was deposited, on the ground that it appeared that it was a personal transaction with the deceden t-This motion was granted, and an exception taken. The referee also struck out the cross-examination of the- witness as to Ebenezer’s being with him when the defendant made the deposit at the bank. The defendant now insists that this ruling was erroneous. That the evidence of this witness was competent, under section 829, is not pretended. The appellant, however, claims that the door was opened for the admission of this evidence by the cross-examination of the witness by the plaintiffs; that the plaintiffs having asked witness whether their intestate was present at the time the deposit of the $250 was made gave them the right to prove the full particulars of that transaction. We think otherwise. The most that can be said is that the plaintiffs proved on the cross-examination sufficient to show that the evidence of the witness was incompetent. We think the ruling of the referee was correct, and that he properly struck out this evidence. Miller v. Montgomery, 78 N. Y. 282; Brogue v. Lord, 67 id. 495 ; Holcomb v. Holcomb, 95 id. 316, 325 ; In re Eysaman’s Will, 113 id. 62; 22 St. Rep. 136 ; In re Dunham, 121 N. Y. 575 ; 31 St. Rep. 858; Adams v. Morrison, 113 N. Y. 152 ; 22 St. Rep. 324; Price v. Price, 33 Hun, 69 ; Erwin v. Erwin, 26 St. Rep. 759.

The defendant also objected to evidence which tended to show that at the time these deposits were made the plaintiffs’ intestate was of unsound mind, and incompetent to do business. These objections were overruled, and the evidence admitted. The question of the competency of the plaintiffs’ intestate was raised by the plaintiffs’ reply to the defendant Davis’ answer, which set up an affirmative cause of action or counterclaim. The evidence was,, we think, admissible.

Robert J. Davis, one of the plaintiffs, was called as a witness, and examined as follows:

“Did you see the tin box at your place between May and September, ’76, when Ebenezer was not there? (Objected to as incompetent under section 829 of Code, and immaterial and not rebuttal. . Overruled. Exception.) A. Yes sir; I saw it in the barn, in the straw. That was before I went down to Stittville. * * * Q. Have you, when in your house, seen Ebenezer outside of window ? (Objection; incompetent under section 829. Exception.) . A. Yes sir. Q. Were you present in Jefferson county when any evidence was taken as to the mental condition of Ebenezer Davis, and, if so, when ? (Objected to as incompetent under section 829 of the Code ; immaterial, leading, not rebuttal.) A. No, sir. Q. Was he at any time examined as to his mental condition about that time ? (Objected to on same grounds. Overruled. Exception.) A. Yes, sir; it was in June, 1877. Q. Do you remember one winter night of ’76 or 77, in the neighborhood of five degrees below zero ? (Objected to as incompetent, indefinite, leading. Objection overruled. Exception.) A. Yes, sir. Q. Do you know where Ebenezer was that night ? (Objection same as. above. Overruled.) A. Yes, sir. Q. Where was he? (Objected to as incompetent, — section 829, — and immaterial. Sustained. Exception.) Q. During the summer of 76, did you ever see Ebenezer eating raw cucumbers in the garden ? (Same objection. Sustained. Exception.)”

We find no error in these rulings that would justify a reversal of the judgment. Nor do we find any error in the ruling excluding the letter written by Emma Davis. The letter was not evidence as to any fact in issue, and in no way intended to impeach or affect the credibility of the witness.

Cornelia H. Davis was called as a witness for the plaintiffs, and testified that she had heard the plaintiffs’ intestate speak of his bank book, and money in the bank. She was then asked, “What did he say?" This was objected to on the ground that what he said was no evidence of the fact, and that his declarations were not admissible. The plaintiffs thereupon stated that the evidence was offered to show his mental condition. The objection was thereupon overruled, and an exception taken. The witness answered :

“He said he had some money in the bank, and he wanted to put in some more, but couldn’t draw so much interest, and asked Spencer Davis if he might put some in in his name. He said Spencer said he might do it, and he said he was to keep the bank book, and had it, This was in the summer of 1876.”

The defendant then moved to strike out this evidence on the same ground. The motion was denied, and an exception taken". As this evidence was admitted for the sole purpose of showing the mental condition of the plaintiffs' intestate, we are disposed to think that no error was committed in admitting it for that purpose, which requires us to disturb the judgment.

The foregoing are all the questions raised by the appellant in his brief. Judgment affirmed, with costs.

All concur.


author: Lewis, J.

text:
    Guy Lamkin et al., Resp’ts, v. Samuel M. Oppenheim, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Affidavit — Title.
    The omission of the title from an affidavit does not impair it if it intelligently refers to the action in which it was made.
    3. Arrest — Affidavit.
    The affidavit, in this case, was held sufficiently to show fraud in contracting the liability, to sustain an order of arrest under section 549 of the Code.
    Appeal from an order made at chambers on the original papers denying a motion to vacate an order of arrest.

      B. F. Dake, for app’lt; George T. Wardwell, for resp’ts.
   Lewis, J.

The order of arrest was presented upon the complaint and affidavits o£ Alfred S. Foster, one of the plaintiffs, and of George T. Wardwell, plaintiffs’ attorney. It is the contention of the defendant’s counsel that the papers failed to make a case for an order of arrest. It was stated in Mr. Foster’s affidavit that the plaintiffs were copartners carrying on business in the city of Boston, Mass; that an action was about to be brought by the plaintiffs, as such against the defendant to recover damages to the amount of $139.20. The facts out óf which the cause-of action arose were stated in the affidavit as follows :

“That heretofore, and on or about the 9th day of May and 16th day of May, 1894, the defendant ordered of these plaintiffs, as such copartners, goods,- wares, and merchandise, consisting of shoes, to the value, and for which the defendant promised and agreed to pay the sum, of $139.20, on a term of credit of sixty days. That no part of said amount has been paid. That, for the purpose of inducing these plaintiffs to sell such goods to him, said defendant, who was conducting a boot and shoe store in the city of Buffalo, IN". Y., stated and represented to these plaintiffs, among other things, that he had a stock of goods worth at least $7,000 ; $100 in good accounts; owned no real estate or other property except said stock of goods and accounts; was worth at least the sum of $5,000, over and above all debts and liabilities which he owed or had incurred, based on the assets of his'business as aforesaid, less his business liabilities as aforesaid; that his total indebtedness did not exceed $1,800, which amount was for merchandise, and that he was owing no borrowed capital or money.”

■ Tiie affidavit then refers to an affidavit of George T. Wardwell, as annexed to the deponent’s affidavit, and in which it is alleged certain facts appear. It was further alleged that the said statements of the defendant were made for the purpose of inducing the plaintiffs to sell to him the said goods, and that the plaintiffs relied on said statements, and believed them to be true, and were induced thereby to sell and deliver the goods to the defendant. It is stated in the affidavit of Mr. Wardwell that he was one of the attorneys for the plaintiffs herein, and that on the 20th of June, 1894, tíre defendant confessed a judgment in the supreme court in favor of Rachel Oppenheim, his wife, for the sum of $4,458.20 damages and $16.31 costs ; that the confession of judgment states that the whole amount of said damages was for money , loaned by said Rachel Oppenheim to said defendant at various times between March 1, 1892, and December 19, 1893, each of which loans was made payable one year from the date thereof; and that, according to said confession, there was due and unpaid from said defendant to his wife for moneys loaned prior to March 1, 1894, the sum of $3.800 and interest, and $200, not yet due, with interest from December 19, 1893, as, by reference to said confession filed in Erie county clerk’s office, will more fully appear. It is further stated in Mr. Ward well’s affidavit that an execution had been issued upon said judgment, and the entire stock of goods, consisting of boots and rubbers, belonging to said defendant, was sold, by virtue of said execution, by the sheriff, to the plaintiff, Rachel Oppenheim, for exactly the amount of her judgment, with interest and expenses of sale added; that Mrs. Oppenheim thereafter carried on the business in her own name; and that the defendant had stated to deponent since said sale that he had no means, whatever, and that he had paid none of his merchandise account, and that his wife had taken everything he had under said execution sale. These facts wonld.seem to bring the case fairly within subdivision four of section 549 of the Code of Oivil Procedure, which provides for an order of arrest where it is made to appear that the defendant was guilty of fraud in contracting or incurring the liability.

The affidavit of the attorney, Mr. Ward well, is criticized by the appellant’s counsel, first, for the reason that there is nothing in it showing to what action or person it refers, except Bacliel Oppenheim. The affidavit was not entitled in any action, but the omission of the title does not impair it if it intellegently refers to the action in which it is made. Section 728, Code Civ. Proc. It was annexed to the affidavit of Mrs. Foster, one of the plaintiffs, at the time it was used to obtain the order. Foster’s affidavit refers to Mr. Ward well’s affidavit as annexed to his, and the order of arrest recites that it was so annexed. Foster’s affidavit was entitled in the action. Wardwell’s affidavit fails to mention the defendant's name, simply referring to him as “the defendant in the action,” without specially stating what action it referred to. But it fairly appears from a perusal of the entire affidavit that it was made in the action, the title of which was stated in Foster’s affidavit; and, though it was unskillfully drawn, we think it was properly used as a basis for the order, and that the papers made a case for the order. The order appealed from should be affirmed, with $10 costs and disbursements of the appeal.

All concur.