text:
    Samuel F. Covert, Resp’t, v. Bailey W. Wall, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment of the county court of Monroe county affirmed.


source: Caselaw Access Project

author: Ehrlich, Ch. J.

license: Public Domain

text:
    Ella Cram v. Springer Lithographing Co.
    (City Court of New York, General Term,
    October 23, 1894.)
   Ehrlich, Ch. J.

The evidence seems to bring the. case within the ruling of the court in Haynes v. Aldrich, 133 N. Y. 287; 45 St. Rep. 243, and justifies the verdict rendered. There is no evidence warranting a finding that any surrender by the landlord had been accepted; hence there was nothing to go to the jury. We find no error, an.l the judgment appealed from must be affirmed, with costs.


text:
    In Matter of Crooks’ Estate.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Order of surrogate of Ontario county appealed from, so far as the same denied the application of the petitioner to require Carrie Gray Crooks to give security for the principal sum of the legacy for life, given to her by the will of the deceased, and so far as it awards costs of the proceeding against the petitioner, reversed, and it is ordered that the said Carrie Gray Crooks give the security mentioned, to be approved by the surrogate of Ontario county, within sixty days, or, in case of her inability or failure to give such security, that the securities representing said fund be delivered to the county treasurer of Ontario county, to be held and accounted for by him as funds paid into court.


text:
    Rose Dahlman, App’lt, v. Union Storage & Transfer Co., Resp’t.
    (City Court of New York, General Term.
    October 23, 1894.)
   No opinion. Order appealed from affirmed, with costs.


text:
    Max Danziger, Resp’t, v. Metropolitan El. R. Co., App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Motion for reargument denied.


text:
    Mary Davies, as Administratrix, etc., App’lt, v. Pelham Hod Elevating Co , Resp’t.
    (Supreme Court, General Term. First Department,
    November 16, 1894.)
   No opinion. Judgment affirmed, with costs.


author: Per Curiam.

text:
    Eliza Davis, Resp’t, v Bertha Myers, as Executrix, etc., App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   Per Curiam.

We see no reason for interfering with the conclusion reached by the court below. The order should be affirmed, with $10 costs and disbursements.


text:
    Peter A. Delaney v. Charles Miller, Jr.
    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   Ño opinion. Motion for reargument granted.


text:
    John Dorley, Resp’t, v. Ellen L. McConnell, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Motion of plaintiff for certificate to the court of appeals denied, but with leave to plaintiff to discontinue appeal already taken, without costs.


text:
    John Duryea v. Catharine Feuchsel.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Motion for resettlement denied, with $10 costs.


text:
    William N. Dykman, as Receiver, etc., v. William J. Northridge.
    (Supreme Court, General Term, Second Department,
    October 26, 1894.)
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Lillie J. Earle, Resp’t, v. Gorham Manuf’g Co. et al., App’lts.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Lillie J. Earle, Resp’t, v. George H. Robinson, Trustee, etc., et al., App’lts.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   Per Curiam.

The order should be modified by giving the defendants leave to move in case the taxes and water rates for 1893 have not been paid up to date, or in the event that the taxes and water rates for 1894 shall remain unpaid for a period of sixty days after the same are due and payable, for an increase in the bond, so as to secure such liens, which necessarily affect the value of the Normandie mortgage as security. As so modified, the order should be affirmed, without costs to either party.


text:
    John J. Emery, App’lt, v. N. Y., L. E. & W. R R. Co., Resp’t.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Appeal dismissed.


text:
    Samuel Ferdum, Resp’t, v. Peter Lenahan, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment of the county court of Allegany county appealed from affirmed.


text:
    James Flannagan v. Philip Stein et al.

    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Motion granted, with $10 costs and disbursements.


text:
    Solomon Fleischman et al., Resp’ts, v. Gertrude Fleischman et al., App’lts.
    (Supreme Court, General Term, Third Department,
    July 14, 1894.)
   „ Order permitting plaintiffs to discontinue the action, and compelling defendants to pay $10 costs, modified. Mem. by Herrick, J.


text:
    William H. Fletcher et al. v. Massachusetts Ben. Life Ass’n.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Judgment affirmed, on opinion on previous appeal.


author: Newburger, J.

text:
    Marie Fogassi v. N. Y. C. & H. R. R. R. Co.
    (City Court of New York, General Term,
    October 23, 1894.)
    Appeal from general term.
   Newburger, J.

Two actions were brought by the plaintiff against the defendant,—one to recover damages for personal injuries received by falling from a ferryboat operated by the defendant, and the other for damages for the loss of property, consisting of personal effects lost at the time of her fall. The answer in each action was a general denial, except the defendant admitted operating the ferryboat, and further alleged contributory negligence of the plaintiff. By order, the two actions were consolidated. The trial of the consolidated actions resulted in a verdict for the plaintiff, and against the defendant. From the judgment entered upon the verdict, and the order denying defendant’s motion for a new trial, this appeal is taken. It is contended that the trial justice erred in refusing to charge, as requested, certain propositions as to the duty defendant owed plaintiff while a passenger on the ferryboat, and as to the duty which rested on the plaintiff, in exercising care and watchfulness, and that the damages awarded by the jury were excessive. The question of the liability of the defendant and of the law on contributory negligence was properly and clearly submitted to the jury by the learned trial justice. The damages awarded .by the jury were not excessive. The judgment and orders appealed from must be affirmed, with costs.


text:
    Thomas K. Foster, Resp’t, v. N. Y. El. R. Co., App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements;


text:
    Frederick Frelinghuysen, as Trustee, etc., v. George G. Frelinghuysen et al.

    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Judgment affirmed, with costs.


text:
    Thomas F. Gale, Resp’t, v. George Roll, App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Judgment affirmed, with costs.


text:
    Andrew Gilhooly, as Trustee, etc., App’lt, v. American Surety Co., Resp’t.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Globe Sewer-Pipe Co., Resp’t, v. Ira L. Otis et al., App’lts.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Judgment affirmed, with costs.


text:
    Ida Greene, Resp’t, v. Middlesex V. R. Co , App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    Catharine Haines, as Administratrix, etc , Resp’t, v. N. Y. C. & H. R. R. Co., App’lt.
    (Superior Court of Buffalo, General Term,
    May, 1894.)
   Per Curiam.

This action is brought by the plaintiff to recover damages for the death of her husband, which occurred on the 30th of April, 1892, while crossing the tracks of the defendant in the village of Tonawanda. No •exceptions to the charge or to the admission of evidence were taken on the trial, and the only question presented is the sufficiency of the evidence to sustain the verdict of the jury. We do not think the court could have taken the case from the jury, and directed a verdict for the defendant. There are some facts from which they might legally find the defendant negligent,—the rate of speed, and the omission to give any warning of the approach of the train. The plaintiff’s want of care was properly submitted for the jury to pass upon, and the charge of the court to the jury was clear, and presented the questions to be determined in plain and concise language. We think, therefore, the judgment and order appealed from should be affirmed, with costs. Judgment and order affirmed, with costs.


text:
    Hall, Resp’t, v. Holland House Co., App’lt.
    (City Court of New York, General Term,
    October 23, 1894.)
   No opinion. Judgment affirmed, with costs, on the opinion of the court below.


text:
    Hamilton Coal Co., App’lt, v. James F. Casey, as Surviving Partner, etc., Resp’t
    (Supreme Court, General Term, Fifth Department,
    June Term, 1894.)
   No opinion. t Order appealed from affirmed.


text:
    In Matter of Harriot.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Edward H. Harris et al , App’lts, v. Abbie F. Wyeth et al., Resp’ts.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Order of county court of Monroe county appealed from reversed, without costs of this appeal to either party.


text:
    Thomas A. Hay, Resp’t, v. Pamelia B. Cole, App’lt.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Eugene Heckman, Resp’t, v. City of Buffalo, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment and order appealed from affirmed.


text:
    Hiram Hitchcock v. Fanny M. Peaslee et al.

    (Supreme Court, General Term, First Department,
    October 12, 1894,)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Susan W. Hopkins et al. v. Saeldon L. Kent et al.

    (Supreme Court, General Term, Second Department.
    July 27, 1894.)
   No opinion. Judgment affirmed, on opinion of special term. Costs to all parties to be paid out of the estate.


text:
    In Matter of Hun et al.

    .(Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


author: Fitzsimons, J.

text:
    Frank D. Hunter, App’lt, v. Oscar Hauptner, Resp’t.
    (City Court of New York, General Term,
    October 23, 1894.)
   Fitzsimons, J.

The complaint alleges that the defendant and his two sisters, Bertha and Anna, were copartners in business. The defendant’s answer denied this allegation. It was the duty of the plaintiff at the trial to prove that, issue. There is no testimony on plaintiff’s part proving that issue in his favor. The testimony, on the contrary, clearly shows that only Bertha and Anna were copartners. There is nothing in the appeal book showing that the defendant, Oscar Hauptner, ever held himself out to be a copartner of his sisters in their business. Under such circumstances, the complaint against Oscar Hauptner was properly dismissed,'and the judgment must be affirmed, with costs.


text:
    Lydia Katz, App’lt, v. Celia Schnaier, Resp’t.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Judgment reversed, with costs.


text:
    Isaac Kubie, Resp’t, v. Martens-Turner Co., App’lt.
    (Supreme Court, General '1 erm, First Department,
    November 16,1894.)
   No opinion. Judgment affirmed, with costs.


text:
    Lamson Consolidated Store-Service Co., App’lt, v. Michael Conyuham, Resp’t.
    (Common Pleas of New York City and County, General Term,
    November 5, 1894.)
   Per Curiam.

As plaintiff’s exhibit is not contained in the return, the appeal must be reheard at the additional general term of this court, to be held December 20, 1894; the return to be amended meanwhile by the addition of' said exhibit. See Robinson v. Fincken (handed down herewith), 30 N. Y. Supp. 1134, mem.


text:
    Charles H. Lawrence, Resp’t, v. William A. Newell, App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


author: Ehrlich, Oh. J.

text:
    George Lebright v. Frederic C. Schneider.
    (City Court of New York, General Term,
    October 23, 1894.)
   Ehrlich, Oh. J.

The action was for false imprisonment in causing the plaintiff’s arrest without a warrant. The plaintiff was taken before a police magistrate, and held in $300 bail, to await the action of (he grand jury. The case was thereafter considered by the grand jury, and dismissed, whereupon the present action was brought. The question of reasonable and probable cause was submitted to the jury, which found for the plaintiff in the sum of $250. The verdict, which is moderate, is amply sustained by the proofs, and, as we find no error, the judgment must be affirmed..


text:
    In Matter of Richard D. Lewis, Deceased.
    (Supreme Court, General Term, Fifth Department,
    November 13, 1894.)
   No opinion. Memorandum of decision corrected, so as to provide that the costs of the appeal abide the event.


text:
    Velorous Lick, Resp’t, v. George J. Masten et al., App’lts.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment appealed from affirmed, on default, with costs.


text:
    George Lock, App’lt, v. Funk & Wagnalls Co., Resp’t.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    David McClure, as Temporary Receiver, etc., v. Louis P. Levy.
    (Supreme Court, General Term, First Department,
    March, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Bernard S. McKean, App’lt, v. Charles H. Adams, Resp’t.
    (City Court of New York, General Term,
    October 23, 1894.)
   Newburger, J.

This is an appeal by the plaintiff from a judgment in his favor upon a verdict of a jury. A careful examination of the printed case fails to disclose any error in the trial of this action. Judgment affirmed, with costs.


text:
    Pamelia E. McNaughton, as Executrix, etc., Resp’t, v. Alice Lafflin et al., App’lts (two cases). Alice Lafflin, App’lt, v. Charles E. Williams, et al., as Executors, etc., Resp’ts.
    (Supreme Court, General Term, Fifth Department.
    October 17, 1894.)
   No opinion. Judgment in each case appealed from affirmed, with costs.


text:
    Manhattan Ry. Co., App’lt, v. Peter M. Wilson et al., Respt’s.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Joseph Masseth, Resp’t, v. Leander W. Kauffman, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment of the county court of Ontario county appealed, from affirmed, with costs.


text:
    In Matter of Mayor, etc., of City of New York. In Matter of Schup.
    (Supreme Court, General Term, First Department,
    July 31, 1894.)
   No opinion. Order affirmed, with costs.


text:
    Henry H. Messerschmidt, Resp’t, v. Traders’ Ins. Co. of Hartford, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    William Miller et al., Respt’s, v. Elijah Boyer, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Motion for reargument denied.


text:
    Henry C. Miner, Resp’t, v. Jonas Stolts et al , App’lts.
    (City Court of New York, General Term,
    October 23, 1894.)
   Per Curiam.

The issues framed by the pleadings were fully and fairly-submitted to the jury. No relevant testimony was excluded. The question excluded by the trial justice, in our judgment, was properly excluded, as it in no wise had a bearing upon the issues involved. The judgment must be affirmed, with costs to the respondent.


author: McCarthy, J.

text:
    Augustus G. Moyer, Resp’t, v. John J. Gorman, as Sheriff, etc., App’lt.
    (City Court of New York, General Term,
    November 20, 1894.)
   McCarthy, J.

I cannot find any reason to change this judgment. The evidence is sufficient to sustain it. Judgment is therefore affirmed, with costs.


text:
    Mutual Life Ins. Co., Resp’t, v. Forty-Second St. & G St. Ry. Co., App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Judgment affirmed, with costs.


text:
    In Matter of Nassau Electric R. Co.
    (Supreme Court, General Term, Second Department,
    October 26, 1894.)
   No opinion. Application granted. Josiah T. Marean, John B. Woodward and Edward Ludlam appointed commissioners.


text:
    National Mahaiwe Bank, Resp’t, v. Elizabeth T. Hand, as Executrix, etc., App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Motion for reargument denied.


text:
    New York Bank Note Co., App’lt, v. Hamilton Bank-Note Engraving & Printing Co., Resp’t.
    (Supreme Court,_ General Term, First Department,
    October 12, 1894.)
   Per Curiam.

Without considering the merits of this action, we think that the special term was right in deferring the relief sought until after the questions at issue could be disposed of upon the merits at the trial. The order appealed from is affirmed, with $10 costs and disbursements.


text:
    Thomas Norris, App’lt, v. Herbert A. Jones et al., Resp’t.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment appealed from affirmed, on the opinion of Davy, J„


text:
    Edward Palmer v. N. Y. & L. C. T. Co. et al.

    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Motion to resettle order denied, with $10 costs.


text:
    The People, Resp’t, v. Flaherty, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion; Appellant’s motion to amend memorandum of decision, so as to show that the decision was solely on questions of law, granted.


text:
    The People v. Van Dyke et al.

    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Motion to dismiss appeal granted, without costs.


text:
    The People v. Van Sickle.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   Appeal from the judgment of the court of sessions of Yates county dismissed.


text:
    The People ex rel. Sabah J. Bird, App’lt, v. Edward P. Barker et al., Resp’ts.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    The People ex rel. Brodie, App'lt, v. Newhall, Resp’t.
    (Supreme Court, General Term, First Department,
    November 16, 1894)
   No opinion. Order affirmed, with $50 costs and disbursements.


text:
    The People ex rel. John J. Platt et al., Resp’ts, v. Frank Rice et al., App’lts.
    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Order affirmed, without costs.


text:
    Randolph A. Purdy, Resp’t, v. Agnes Lynch, App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Motion denied, with $10 costs.


author: Newburger. J.

text:
    Carl Rehm et al., App’lts, v. William S. Weiss, Resp’t.
    (City Court of New York, General Term,
    October 23, 1894.)
   Newburger. J.

This court at general term (May, 1894), on a former appeal, having held that * ■ there was no privity of contract or estate between plaintiffs and defendant, the trial justice properly dismissed the complaint. Judgment affirmed.


text:
    James F. Remsen, App’lt, v. Manhattan Life Ins. Co., Resp’t.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order reversed, with $10 costs and disbursements.


author: Van Brunt. P. J.

text:
    Edgar L. Ridgway, as Administrator, etc., Resp’t, v. Charles P. Bacon, Impleaded, etc., App’lt.
    (Supreme Court, General Term, First Department.
    November 16, 1894.)
   Van Brunt. P. J.

Whatever might have been my opinion, upon the questions raised by this appeal had this case not been before this couit before, it seems to me that these questions have been determined adversely to the appellant upon the previous appeal, and such adjudication must be followed. The interlocutory judgment appealed from must therefore be affirmed, with leave to the appellant, upon payment of the costs of this appeal, and of the court below, to withdraw his demurrer and answer.


text:
    William C. Robinson, App’lt, v. H. Edward Fincken, Resp’t.
    (Common Pleas of New York City and County, General Term,
    November 5, 1894.)
   Per Curiam.

It appears that the plaintiff’s exhibits Nos. 1, 2,3 and 4, and ■defendant’s exhibits Nos. 1 and 2, are omitted from the return, which omission precludes any determination as to the matters litigated at this time. It is therefore directed that the appeal be reheard at the additional general term of this court, to be held December 20, 1894; the return to be amended in the •particulars noted meanwhile. Krakowski v. Association.


text:
    George W. Ross, Resp’t, v. Thomas R. Reed, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Respondent’s motion to dismiss appeal granted.


text:
    Abner Roulston, Resp’t, v. Arthur Roulston et al., App’lts.
    (Supreme Court, General Term, Third Department,
    May Term, 1894.)
   Judgment affirmed, with costs. Mem. by Herrick, J. Putnam, J., dissenting. Mem. withheld from publicalion by order of the dourt.


text:
    Joseph S. Rown, App’lt, v. Ida F. Dumont as Executrix, etc., et al., Resp’ts.
    (City Court of New York, General Term.
    October 23, 1894.)
   Fitzsimons, J.

The order appealed from is affirmed for the reason stated 3)y the special term justice who made it in his decision.


text:
    Annie Rutherford, as Administratrix, etc., App’lt, v. Town of Madrid, Resp’t.
    (Supreme Court, General Term, Third Department,
    September 27, 1894).
   Per Curiam.

This case has heretofore been before this general Term (77 Hun, 545), and we do not perceive that it now presents any different aspect from what it did then. The principles then enunciated as to the discretion to be exercised by courts in determining motions of this character were carefully-considered, and the rules then laid down were not merely the dicta of the judge writing the opinion, but were the utterances of the general term, and they are the rules to govern the hearing and determining ot such motions in this department until reversed or modified by the general term thereof, or by the court of appeals. They are not cast-iron rules, but, like other general rules, subject to possible exceptions The case before us is not one of those exceptional cases which is exempted from the general rule, but seems to be one to which the general rules are peculiarly applicable. The order appealed from is reversed, with $10 costs and printing and other disbursements, and the motion denied, with $10 costs.


text:
    Frederick Sackett, Resp’t, v. Jacob Lippman et al., App’lts.
    (City Court of New York, General Term,
    October 23, 1894.)
   Fitzsimons, J.

The testimony not only is sufficient to sustain the verdict, but, in our judgment, preponderates in plaintiff’s favor. The judgment is therefore affirmed, with costs.


text:
    Nelson H. Salisbury v. Dore Lyons et al. (two cases).
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    William Sander, Resp’t, v. N. Y. E. R. Co., App’lt.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Adelaide F. Sharp v. Manhattan R. Co.
    (Supreme Court. General Term, First Department,
    November 16, 1894.)
   No opinion. Judgment affirmed, with costs.


text:
    Ella J. Schewman, by Guardian, etc., Resp’t, v. Willis Norton, App’lt
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment and order appealed from affirmed.


text:
    August Schmidt v. John Brown et al.

    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Lena Schmidt, by Guardian, etc., Resp’t, v. Valentine Cook et al., App'lts
    (City Court of New York, General Term,
    November 20, 1894.)
   Ehrlich, Oh. J.

The action was by the plaintiff, a child of eleven years of age, by the guardian, to recover damages for personal injuries sustained by it while in the back yard of premises No. 233, East Thirty-sixth street, in the city of New York, of which premises the defendants were owners and landlords. The evidence clearly established that the injuries were caused by the negligence and breach of duty of the defendants, and without any default whatever on the part of the plaintiff. The questions of negligence and contributory negligence were submitted to the jury under a careful charge by the court, and the jury rendered a verdict in favor of the plaintiff for $1.000 damages. The amount awarded is moderate, and, as no errors were committed during the trial, the judgment entered on the verdict must be affirmed, with costs.


text:
    Susie Sheldon v. Cornelia Mott.
    (Supreme Court General Term, Third Department,
    September 27, 1894)
   No opinion. Motion to dismiss appeal denied, with $10 costs.


text:
    Albert Spencer v. Chauncey Kilmer.
    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Judgment affirmed, with costs.


text:
    Edward S. Stokes v. William E. D. Stokes.
    (Supreme Court, General Term, First, Department,
    October 12, 1894.)
   No opinion. Motion granted, with $10 costs.


text:
    George B. Swikehard et al., as Commissioners, etc., Resp’ts, v. Fred P. Michels et al. App’lts.
    (Supreme Court, General Term, Fifth Department,
    November 13, 1894.)
   No opinion. Judgment appealed from affirmed, with costs, on opinion of Rumsey, J., at special term.


text:
    Johanna S. Wood et al. v. Benjamin S. Baker et al.

    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Motion to amend memorandum of judgment denied.


text:
    Sarah L. Wood, Resp’t, v. Richard P. Hubbard, App’lt.
    (Supreme Court, General Term, Fifth Department,
    November 13, 1894.)
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Ellen Woods, Resp’t, v. Industrial Ben. Ass’n, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment and order appealed from affirmed.


author: Hardin, P. J.

text:
    Esther A. Benedict et al., Resp’ts, v. David Sliter, as Administrator, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Executors—Claim against decedent’s estate. An agreement between the children of an insane father for his maintenance and support and the payment of his prior debts, which is subsequently rescinded by mutual consent, does not affect the right to recover from the father’s estate for his maintenance.
    3. Interest—Unliquidated claims. Interest cannot be allowed on balance due on- mutual demands until ascertained by an accounting.
    Appeal from a judgment in favor of plaintiffs.

      C. Hull and Edwin W. Wagner, for app’lt; G. & S. F. Adee, for resp’ts.
   Hardin, P. J.

David Hull, in 1878, resided in the town of Middletown, Delaware county, and owned two farms in that town, and one in the town of Roxbury; and he made and published his last will and testament, which, after his death, which occurred on the 2d of Eel nary, 1890, was presented to the surrogate, and duly proved, and letters of administration with the will annexed were issued to the defendant, who qualified, and took upon himself the duties of administration. In 1884, an inquisition de lunatico inquirendo was issued out of this court, and David Hull was found to be a lunatic; and, in the proceedings had, Richard Hull, ins son, was appointed committee of his estate, and Esther Hull, his wife, was appointed committee of his person. Richard Hull continued to act as committee of his estate until his death, which occurted on the 6th of August, 1886. Thereafter no committee was appointed of the estate of David Hull. Esther Hull continued to act as committee of his person until her death, which occurred November 15, 1887. After the death of Richard Hull, the only children and heirs at law of David Hull were John Hull, son, Jane Sliter, wife, of the defendant, and Esther Benedict, one of the plaintiffs. After the death of Richard, it was apparent to the children that some fresh arrangement must be entered into looking to the suitable care and protection of David Hull and his property. His wife was enfeebled, in advancing age and infirmities, and was unequal in strength and capacity to suitably care for her husband, who was then a confirmed lunatic, afflicted - with senile dementia and weakness of his physical system, which rendered the care of him very burdensome. The children met on the 12th of August, and discussed the situation of affairs, and finally entered into a written agreement, called “ Exhibit A,” which is set out in the findings made by the referee. In that instrument, which was executed by the children of the deceasedr and in which the wife of the deceased, Esther Hull, joined, it was, in substance, provided, upon a recital that the parties, “ mutually desiring a settlement of their rights and interests in and to the property of the said David Hull,” that Esther Hull and Jane Sliter and John Hull should sell unto Ashmun J. Benedict and Esther A. Benedict “ all their right, title, and interest as heirs at law, legatees, or otherwise of said David Hull to and in all the real property now owned by said David Hull, situate in Middletown, Delaware county, N. Y.; also all their right, title, and interest as aforesaid in and to all the personal property, of every kind and description, now owned by and upon said farm of David Hull, for and in consideration that the said parties of the second part shall keep, maintain, and support in health and sickness during the lifetime of both or either of the said David Hull and Esther Hull, his wife, and for the further consideration of payment to the said John Hull the sum of $800, and to the said Jane Sliter the sum of $1,800; * * * and*the said parties of the second part are to pay all outstanding indebtedness of said David Hull, and all debts of Richard Hull, contracted as committee of said David Hull.” It also contained a provision that the plaintiffs agree to purchase the property mentioned, and to carry out the agreement, and to make payment; and the parties of the first part, “ upon the fulfillment of all the terms and condition herein mentioned, do hereby agree to make, execute, and deliver to said parties of the second part a good and sufficient deed of their interests in and to said property.,r The instrument also contained the following language : “And the said parties of the second part are to keep, maintain and support the above-mentioned David Hull and Esther Hull upon the farm where they now reside, and the expense, care, and maintenance of said persons is to be, and the same is hereby, made a lien upon said real and personal property.” At the time of the execution of that instrument, the plaintiffs resided some SO miles from Middletown, and they removed to the homestead of David Hull, in Middletown, taking possession of the personal property thereon belonging to him, and continued in possession of the same until the death of David Hull, and remained in possession down to the time of the trial. It is found as a fact “ that they had previously been requested to come and take care of David Hull, who was hopelessly insane at that time, and continued so until his death, and of his wife, who was aged and infirm, by his said wife, Esther Hull, who, at the time of making such request, was acting as committee of the person of David Hull, and had been duly appointed and had duly qualified as such com mittee ; ” and it is found as a fact that the plaintiffs “ cared for, supported, clothed, and boarded said David Hull and Esther Hull from the time they took possession of the said farms and personal property until the time of their death, and treated them kindly and considerately; that the mental condition of David Hull was fully known to plaintiffs before they assumed his care, but that they found it more difficult to take care of him than they anticipated.” It is found as a fact that, at the time the agreement was executed, Esther Hull, the mother, stated, in the presence of John Hull and Jane Sliter, that the debts of David Hull and those contracted for his benefit by Richard Hull, as committee of his estate, “ did not exceed the sum of $500 ; ” and it is further found that the plaintiffs at that time had no personal knowledge of that amount, and that the statements so made were relied upon by them to be true, and operated to induce “ plaintiffs to enter into said agreement; that in fact said debts largely exceeded the sum of $500.” The referee also made the following finding of fact: “ That after the death of David Hull and Esther Hull, and about February 13, 1890, the plaintiffs, John Hull, Jane Sliter, and David Sliter, her husband, met at said SI iter’s house, and had a conversation in regard to the contract mentioned in tenth finding of fact. In that conversation plaintiffs informed John Hull, Jane Sliter, and David Sliter that they were not satisfied with the contract; that the debts of David Hull and Richard Hull, his committee, were much greater than had been represented to them ; that, instead of not exeeding $500, they were in fact $1,000 or $1,200; that they had been defrauded, and should not carry out the contract; that, after such statement by the plaintiffs, the said John Hull and Jane Sliter consented that said agreement be canceled on account of such fraud, and that it be treated as of no force and effect, and not fulfilled ; that after-wards, and at the same meeting, it was agreed between the plaintiffs and John Hull and the Sliters that they would abide by the terms of the will of David Hull made December 3, 1878, and Richard Hull, the sole executor named in said will, being dead, it was agreed by and between all the parties present that David Sliter, the defendant herein, should act as administrator with the will annexed of said will.” He also found “ that, in pursuance of such agreement, a petition was duly made to the surrogate of the county of Delaware by John Hull, Jane Sliter, and Esther A. Benedict, being all the heirs at law of David Hull, then deceased, for the probate of said will: ” and that on the 6th day of March, 1890, the will was duly proved, and David. Sliter was appointed administrator with the will annexed ; that he caused an inventory to be taken of the personal property of the testator “on the farms occupied by plaintiffs herein, it being the same personal property that was on said farms when the plaiutiffs went there, in the year 1886 ; that the value of said personal property was, according to said inventory, $545.35 ; and that said personal property was sold by said administrator as such, and the avails held or used by him as assets of the estate of David Hull, deceased.” The referee also found that from the 13th of August, 1886, until the 2d of February, 1890, “ the plaintiffs boarded, clothed, supported, and cared for the said David Hull, who was during all that time insane, and incompetent to care for himself, and was a large portion of the time very violent; that he was cared for and kept in the plaintiffs’ family; and that what they did for him was necessary and proper for his comfort and safety, and was reasonably worth the sum of two thousand seven hundred dollars.” The referee also found that, from August 12, 1886, until November 15, 1887, the time when the mother, Esther Hull, died, “the plaintiffs boarded, clothed, supported, and cared for Esther Hull, the wife of said David Hull, in their family; that such support and care were necessary, reasonable, and proper; that she was sick aud confined to her bed a portion of the time; and that the plaintiffs’ services were reasonably worth the sam of three hundred and twenty-five dollars.” Goodale v. Lawrence, 88 N. Y. 513. The findings of fact already stated were supported by evidence given upon the hearing. It is true there was some conflicting evidence; but, after a perusal of the whole evidence, we are of the opinion that the conclusions of fact stated by the reference are sustained by the weight of the testimony. In addition to the testimony of the witnesses to the effect that in February, 1890, there was an agreement to waive the contract, there is quite significant force in the fact that the administrator subsequently inventoried the property which was found upon the farms occupied by the plaintiffs, and took possession of it, and sold it as part of the assets of the estate. If the agreement had not been waived, the personal propersy upon the farm in Middle-town, by the tenor of the agreement, was transferred to the plaintiffs. Inasmuch as the administrator and his wife and John Hull were present at the agreement, it is fair to assume that they had acquiesced in the waiver of it, and that the inventory of the property found on the Middletown farms, and the sale of them were acts based upon the assumption that the contract of August, 1886, had been canceled and waived, and, by the agreement of the parties, annulled. The evidence seems to support the conclusion that the parties to the instrument of August, 1886, voluntarily consented to waive its terms and conditions, and that they should severally be limited to their legal rights as they existed after the abandonment of the contract. We think it was competent for the parties to make such an agreement, and that the contract was rescinded in toto (Fullager v. Reville, 3 Hun, 600); and the agreement should be treated as being void ab initia (Utter v. Stuart, 30 Barb. 20). The evidence clearly indicates that the services were performed, and the care bestowed upon the deceased and upon his wife, in the full expectation that the same were to be paid for by his property. Indeed, the agreement contained a clause that such services should be a lien upon the deceased’s property, and, after that agreement is waived or abandoned, the plaintiffs ought not to be in any less favorable position than though the agreement had not been executed. The services were performed in the expectation of payment, and in the expectation of payment out of the property of the deceased, and in the expectation entertained by all his children that the expenses, extraordinary as they were, should be provided for, and due compensation made by the property of the deceased, which was to be applied in payment for such services. Davidson v. Westchester Gaslight Co., 99 N. Y. 566; Ex parte Cunningham, 1 Hun, 214. The evidence justifies an inference that the deceased became liable to the plaintiffs for the services rendered in caring for him and his wife, and that they relied upon the property of the deceased to furnish ample compensation for the services bestowed upon him and his wife. The deceased was bound to support his wife, and was “ bound to bury the corpse of his wife.” Patterson v. Patterson, 59 H. Y. 583. It is to be borne in mind that when the written instrument was made, in 1886, the children had no interest in his real and personal property.

In Willard’s Equity Jurisprudence (page 658) it is said: “During the lifetime of the lunatic the next of kin have no interest in his estate. But as the lunatic, if of sufficient ability, is bound to maintain his family, and as the court is bound to see that his property is fairly devoted to that purpose, applications are not unfrequently made to the court for an order on the committee to make allowances in favor of those whom he is bound to provide for, and for other relatives of the lunatic towards whom he is under no such obligation.”

We think this case is distinguishable from Hospital v. Fairbanks, 129 Mass. 78, and Whiting v. Sullivan, 7 Mass. 107, and In re Rhodes, 44 Ch. Div. 94, and that the referee’s conclusion that the agreement, “ under the circumstances of this case, in no wise affects the right of the plaintiffs to recover in this proceeding for necessaries furnished the defendant’s testator, and “ those he was bound to support,” correct, and ought to be sustained.

Appellant calls our attention to McCreery v. Day, 119 N. Y. 1; 28 St. Hep. 597, which is to the effect that, where a contract is rescinded, no claim in respect to performance or of what has been paid or received thereon may thereafter be made, unless expressly and impliedly reserved upon rescission. We think the case does not support the contention of the appellant. And the case of Oregon Pacific Railroad Co. v. Forrest, 128 1ST. Y. 83; 38 St. Rep. 837, differs essentially from the case in hand.

2. The referee charged the plaintiffs with the use of the land occupied by them, at a sum that he found was the valuation of the rental, upon the assumption that the landlord or owner paid the taxes, and he found that the taxes which the plaintiffs necessarily paid amounted to $155.24, which he allowed to them in stating the account, and which seems proper to be allowed against the rent. He also found that the amount of the permanent repairs put on the buildings by the plaintiffs during the lifetime of the deceased amounted to $194.31, and that the “ repairs were of substantial character, and enhanced the value of said real property, and were suitable and proper to be made, and the cost of making them should be allowed the plaintiffs.” He properly allowed the plaintiffs to have a credit of $42.93, which was for the amount which accrued to 0. J. Dickinson for shingles furnished to the committee of the deceased, and in settlement of which the plaintiffs advanced the money, and took an assignment from him of the account therefor. It was found by the referee “ that this work was necessary and proper to be done. The amount of said bill was reasonable, and, with interest to the time of purchase, amounted to $42.93.”

3. The contention of the appellant is that the referee allowed erroneously interest of $574.11. The referee has not stated the basis upon which he allowed interest, nor the periods of time or any computation made by him of interest. We are inclined to think the'case falls within the rule of Smith v. Velie, 60 N. Y. 106, where it is said: "Interest, however, is not allowable until the accounts are settled ; and the termination of the employment by the death of the master gives no right to interest from that time on the balance unpaid.”

And in Holmes v. Rankin, 17 Barb. 454, the referee’s report was made up, the value of board, lodging, etc., “ without any interest thereon,” and his ruling in that regard was approved by the court. Holmes v. Rankin was approved in De Witt v. De Witt, 46 Hun, 258; 11 St. Rep. 549, and De Witt v. De Witt was cited with approval in Mansfield v. N. Y. Cent. & Hudson River Railroad Co., 114 N. Y. 339; 23 St. Rep. 739; and, the latter case was cited with approval in Sayre v. State, 123 N. Y. 297; 33 St. Rep. 156. The tenor of the cases seems to indicate that the referee fell into an error in allowing interest as stated by him in his findings of fact and conclusions of law.

4. When the referee’s report was made, chapter 686 of the Laws of 1893 was in force, which amended § 2718 of the Code of Civil Procedure; and in that section it was provided ; “ In determining the question of costs, the referee shall be governed by §§ 1835 and 1836 of this act; ” and § 1835 prescribes that costs shall not be allowed against an executor or administrator except as provided in § 1836; and that section provides that, where the payment was unreasonably resisted or neglected, the court may award costs against an executor or administrator, to be collected either out of his individual property, or out of the property of the decedent, as the court directs, having reference to the facts which appeared on the trial. From the allowance of costs, it must be assumed that the referee was of the opinion that the claim was unreasonably resisted or neglected, and that he based such conclusion upon “the facts which appeared upon the trial.” The judgment entered thereon requires the costs to be collected out of the estate, and the appellant has not challenged the power or discretion of the referee in that regard.

5. Several exceptions were taken during the progress of the hearing before the referee, and to his refusals to find, as well as to findings made by him. If the views already expressed are correct, the exceptions present no prejudicial error. See Barton v. Scramling, 31 Hun, 467; Johnson v. Hicks, 1 Laos. 150.

Judgment reversed, and new trial ordered, with costs to abide the event, unless the plaintiffs shall stipulate to reduce the recovery of damages by striking therefrom $574.11, and any interest allowed thereon from the date of the referee’s report to the entry of judgment, in which event the judgment, as so modified, is affirmed, without costs of the appeal to either party. All concur.


author: Lansing, S.

text:
    In the Matter of the Estate of Charlotte S. Eddy, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed November, 1894.)

    1. Executors—Temporary administrator.
    Where a considerable portion of the decedent’s personalty consists of unsecured notes, a temporary administrator will be appointed pending a contest of the will.
    3. Same—Who appointed.
    In case of conflicting interests, a person interested in the estate will not be appointed such administrator.
    Application for the appointment of a temporary administrator pending the contest of a will.

      W. W. Morrill, J. A. Cipperly and F. S. Black, for petitioner;

      Warren, Patterson & Faulkner and T. S. Fagan, for the executors.
   Lansing, S.

This is an application for the appointment of a temporary upon ground necessary delay in this case in the granting of letters testamentary arising from the contest of the will requires the exercise of such power of appointment by the surrogate. The Code provides for the appointment of a temporary administrator “ where delay necessarily occurs in the granting letters testamentary or letters of' administration in consequence of a contest; ” and it may be granted “ on the application of a person interested in the estate.” Code, § 2670. Of course, it is not every case of delay that will warrant the exercise of the power of appointment. There is necessary delay in every case of contest, and yet the condition of an estate may be such that it would be manifest that no possible harm or inconvenience could result from the delay to the parties interested. The question, then, arises, is there anything in the character or condition of this estate that the necessary delay in granting letters (or having some person authorized to take charge of the estate) will necessarily or probably cause loss to the estate, or be likely to impair the rights or remedies of the persons interested therein ? If so, a case has been made for the appointmant of a temporary administrator. I do not deem it necessary to do much more than to state my conclusions in this case. Under the will, which provides that the executors shall sell the real estate, which consists of a dwelling-house of the value of from $10,000 to $12,000, and divide the proceeds between her three children, William B. and Charles G. Eddy and Mrs. J. A. Cipperly, as I understand the law, the three children take title to the real estate as tenants in common. Post v. Benchley, 43 Hun, 87; 15 St. Rep. 618; 1 Rev. St. p. 729, § 59. And the same result follows when the power of sale operates as an equitable conversion of land into personalty. Lent v. Howard, 89 N. Y. 169. In either case the rents and profits intermediate the seisin and sale belong to the heirs. Id. It is also well settled that when one tenant in common occupies the premises he is not liable to his cotenant for the value of its use. Rich v. Rich, 50 Hun, 199; 19 St. Rep. 384. I may further add I do not think that a continued occupation of the premises by one tenant in common, which commenced under a lease from the ancestor, and terinitiated shortly after her death, could be treated as a holding over by the occupant as tenant of the remaining heirs upon-the same terms as before. I am very clear that, as soon as the descent, was cast, the tenant was in under his own title as heir or owner.

But it is answered, assuming all this to be true, the tenant in common in occupation of the premises is willing to waive his right as owner, and to stipulate to pay rent as tenant under his-former lease. But the proposed stipulation is hardly broad enough under the facts, since it is claimed by the applicant that the tenant has extended his occupation to other rooms of the house-(which is or may be adapted for use by two families), so that practically his occupation amounts to an occupation of the entire premises, while the stipulation to pay rent only covers one tenement or portion of the house. But if it may be assumed that the-rights and interests of all the parties could and possibly would be (if this application were denied) protected by a stipulation (a result, considering the present temper of the parties, I consider extremely unlikely), there is still another, and it seems to me a controlling, reason why the application should be granted. The personal estate herein consists mostly of money in savings banks or in other banks on certificate of deposit. But a large portion of the personal assets (something over one-third) consists of promissory notes without indorsers or other security, so far as appears. The individuals or firms (makers of these notes) are doubtless solvent (no-one has intimated anything to the contrary); still the law regards loans to a considerable—or, indeed, any—amount upon personal security alone as hazardous, and, if a loss were to occur upon such an investment by an executor, he would undoubtedly be held personally liable; but the rule goes further, and provides that, even when such investments have been made by the deceased, it is the duty of his personal representative, if he would shield himself from liability for loss, to make collection of such assets at the earliest practicable moment. In this condition of the estate it would seem to be the imperative duty of the court, where any considerable delay in the appointment of a legal representative of the estate is likely to occur, to appoint a temporary representative to protect and preserve the rights of the parties interested. There is no one now authorized to receive money upon the securities if due, or when due, or to look after the interest of the estate, or to protect it should business difficulties affect any of the corporate or individual debtors of the estate. Besides, it is important that an inventory of the estate should be taken as soon as practicable, that there may be an official description and statement of the assets on file in the proper office for the use of all the parties interested.

This brings us to the next question in the case. It is insisted by the executors and proponents of the will that (if a temporary administrator must be appointed) the executors named in the will, or one of them, should be selected for the office, and two reasons are assigned: (1) That Mr. Charles Gr. Eddy, the executor residing in this state, and who is named for the position, is a gentleman possessed of. all the requisite qualifications for the office; and, further, that such appointment would be a saving of expense to the estate. (2) That the appointment of a disinterested person might in some way (in anticipated litigations) impair the rights or remedies of Mr: William B. Eddy and Mr. Charles G. Eddy, legatees and devisees, as well as executors, under the will of the deceased, in the maintenance of their claim that the bulk and body of the estate herein belongs to the estate of Charlotte S. Eddy, deceased, instead of the estate of "William Eddy, deceased, as is asserted and claimed by Mrs. J. A. Cipperly. In regard to the first suggestion — that Mr. Charles G. Eddy, the executor (whom I esteem a very honorable, honest and trustworthy gentleman), should be appointed the temporary administrator—the answer is, that the courts have held with a great unanimity, of late at least, in passing upon this question, that a person interested in the estate, where there are conflicting interests, as in this case, should not be appointed temporary administrator. Mailer of Stearns, 31 St. Rep. 960, the court says: “The holding of the courts seems to have been uniform in refusing to appoint an executor pending a contest in which he is largely interested, and where he is in a hostile position to, and his appointment is opposed by, the contestants.” West v. Mapes, 14 Wkly. Dig. 92; Matter of Plath, 56 Hun, 223, 225; 31 St. Rep. 101. See, also, Howard v. Dougherty, 3 Redf. Sur. 535. As to the last-mentioned ground—that this application is made for ulterior purposes—it is sufficient to say, if I thought any undue advantage could possibly accrue to either party as against the other by the appointment of a temporary administrator, I would most certainly decline to interfere. But I cannot see that either party can be helped or hindered by the appointment of a disinterested person as temporary administrator. To be sure, the administrator, if he holds his office long, might, and perhaps will, be compelled to defend the estate of Charlotte S. Eddy, deceased, against the claim that the bulk of the estate belongs to the estate of another; but the court cannot and will not assume that such defense will not be made by such appointee with zeal and fidelity in discharge of his sworn official duty. Besides, the parties really interested may intervene for the protection of their own interests (when their interest is defended through a representative), and thus be permitted to appear in person as well as by counsel in such litigations as may affect their interests. Code Civ. Proc. §452; Davies v. Fish, 19 Abb. N. C. 24; Chandler v. Powers, 1 Civ. Proc. R. 355; I do not think I am liberty to consider the suggestion that this contest is made solely for delay. This would be deciding the matter before the testimony is in. Moreover, the character of the gentleman conducting this contest affords ample assurance that the contest is conducted in entire good faith.

For the reasons above stated, I am satisfied that a temporary administrator, who is disinterested, should be appointed, and, if the parties will name a suitable person, I will appoint him; otherwise, I will select a person for the office myself.

Ordered accordingly.


author: Coleman, S.

text:
    In the Matter of the Application for the Sale of the Real Estate of James T. Corwin, Deceased.

      {Surrogates Court, Orange County,

      Filed November, 1894.)

    1. Executor—Sale oe decedent’s land.
    The land of the decedent may he sold for the purpose of paying funeral expenses.
    2. Same.
    A claimant for funeral expenses cannot maintain a proceeding for such purpose.
    Application for the sale of real estate for the payment of debts.

      Bacon & Merritt, for petitioner; John A. Thompson, for the next of kin.
   Coleman, S.

An application to sell decedent’s real estate. The petitioner’s claim is for funeral expenses only. A motion is made, on behalf of the next of kin, to dismiss the proceedings as being unauthorized, the petitioner being neither an executor nor administrator nor creditor of the decedent. Code Civ. Proc. § 2750. An examination of §§ 2749, 2750, 2752, 2754, and others, clearly shows a purpose to provide for the payment of funeral expenses, when necessary, from a sale of decedent’s real estate, and it has been so held even where there were no unsettled debts. Estate of King, 10 Civ. Proc. R. 175. That purpose must, however, be accomplished in the way provided in the statute. Section 2750 provides who may present a petition to obtain a sale. It must be “ an executor or administrator * * * or a person holding a judgment lien * * * or any other creditor of the decedent” So, an executor or administrator could undoubtedly have commenced these proceedings by filing the proper petition, but one who is the owner of the claim for funeral expenses could not, unless he is included in the term “ creditor of the decedent.” In determining whether such a person is so included, the act itself, as well as the usual definition of the term “ creditor,” may be considered. By looking through the several sections of the Code relating to the sale of real estate, we find that where it is provided what claims may be paid, what parties shall be brought into the proceedings, and as to all other matters, except where it is provided who may file the petition, the claim for funeral expenses is always mentioned by name, and is not treated as though included in the expression “debts.” The omission is significant, and it may reasonably be supposed it was purposely done. Unlike ordinary debts, this claimant has a personal remedy for the claim against the executor or other person who contracted the obligation, and was, therefore, not given the right to proceed against the real estate of the decedent for the collection of his claim. To suppose that such a claimant is included in the term “creditor of the decedent” would be to extend the scope of the expression beyond any fair or reasonable meaning of the term. Estate of King, sufra, is cited as an authority by the petitioner in this case, but it does not appear from the report of the case who was the petitioner in that proceeding. I am of opinion, for reasons before stated, that these proceedings should, be dismissed, as authorized in the Code. Proceedings dismissed.


author: Giegerich, J.

text:
    The People, Pl’ff, v. Thomas G. Cowan et al., Def’ts.

      (New York Commoti Pleas, Special Twin,

      Filed November, 1894.)

    ' Supplementary proceedings—Recognizance.
    Supplementary proceedings cannot be maintained upon a judgment entered on a forfeited recognizance, where the summons was not served on the defendants.
    Motion to vacate an order for the examination of defendant.

      Durnin & Hendrick, for the motion; John R. Fellows, Dist. Atty., and Forbes J. Hennessy,. Deputy Asst., opposed.
   Giegerich, J.

defendants gave recognizance to answer to a charge preferred. Upon the principal’s failure to appear, the same was declared forfeited, and an order to that effect was entered, and thereafter judgment was entered in the office of the clerk of the city and county of New York by the filing of the recognizance in question, together with a certified copy of the order of the court forfeiting the same. An execution was then issued to the sheriff, who returned the same unsatisfied, and an order for the examination of the defendant Cahill in proceedings supplementary to execution was obtained. The latter now moves to vacate the same, upon the ground that the judgment was not rendered upon the defendant’s appearance, or personal service of the summons upon him. In order to entitle a judgment creditor to maintain supplementary proceedings, “ the judgment must have been rendered upon the judgment debtor’s appearance or personal service of the summons upon him.” Code Civ. Pro. § 2458. It is undisputed that neither of the defendants was served with the summons, and that no action was brought upon the said recognizance. The district attorney contends that the provisions of the Code above cited are inapplicable, and cites numerous authorities in support of "his contention; but they are not in point, the same relating merely to the right of the people to enter judgment upon a forfeited recognizance without bringing an action, and to issue execution thereon. It is also urged that the signing of the recognizance was “ a waiver by the defendants of the right to any further day in court.” Conceeding this to be so, still I do not perceive how the mere signing of such a recognizance can be construed into an appearance by the defendants in the proceeding in which the j udgment was entered, and of which, it is conceded, neither of them had any notice. “ The defendant’s appearance must be made by serving upon the plaintiff’s attorney within twenty days after service of the summons, exclusive of the day of service, a notice of appearance or a copy of a demurrer or of an answer.” Code Civ. Proc. § 421. It is manifest from the papers submitted that there was no appearance, within the purview of the provisions above quoted, by either of the defendants in the proceeding referred to. There having been neither an appearance by nor personal service of the summons upon the defendants, it follows that the order in question must be vacated. The district attorney also urges that any other view of the question than is contended for “ would be to seriously affect the administration of the criminal law.” While such a result is be deplored, still it should be born in mind that it is for the courts to apply the laws, not to make them, and that it is for the legislature to afford the remedy. Motion granted.


author: Titus, C. J.

text:
    Mary M. Hanrahan, Pl’ff, v. Walter S. Ayres, Def't.

      (Buffalo Superior Court, Special Term,

      Filed December, 1894.)

    1. Trial—Verdict—Vacation.
    Where some of the jurors, after retiring for deliberation, drank intoxicating liquors, the verdict will be set aside for such misconduct.
    2. Same—Waiver.
    The objection to the verdict on the ground of such misconduct is not waived by not making the motion to set it aside until after its announcement, where the objecting party could not have made the motion sooner.
    Motion to set aside, for alleged misconduct of the jurors, a verdict in favor of plaintiff.

      Laughlin & Penney, for pl’ff; Martin Carey and William F. Mackey, for def't.
   Titus, C. J.

A motion is made by the defendant, on affidavits, case, conduct during their deliberation. The case was tried at this trial term of the court, occupying something over two weeks. The case was submitted to the jury, under a charge by the court; and they retired, in charge of two sworn officers, at about 7 o’clock in the evening, they having been instructed to seal their verdict in case they should agree before the court convened in the morning. On the coming in of the court in the morning, the jurors were in their seats; and, on being called and asked if they had agreed on a verdict, the foreman announced that they found a verdict in favor of the plaintiff for $5,000. Both plaintiff’s and defendant’s counsel were in court; and, after the jury had announced their verdict, the defendant’s counsel moved for a new trial, on the ground of the misconduct of the jury, making an oral statement of the occurrences more particularly set out in the affidavits read on the-hearing of the motion on a later day. The case was held, to enable the parties to prepare affidavits of the facts claimed ; and it appears from such affidavits, prepared and read on the hearing, that, after the jury had retired and had their supper, they returned to their room for deliberation ; that, about 8 o’clock, Wagner, one of the jurors, was taken out by officer Curtiss to a neighboring saloon, where he drank a whisky cocktail. The same juror was taken out a number of times during the night by the officer, and on one of these occasions drank another whisky cocktail. Seven other jurors went out during the night, and drank a number of glasses of beer, without the knowledge or leave of the court

It is claimed by the jurors in their affidavits that they were not drunk, and that the drinking done by them did not affect them, nor influence their verdict in any way. It appears from the affidavit of Mr. Carey that the juror Wagner was in such condition on the morning after rendering the verdict that he was unable to remember the occurrences of the night before, and that he was then perceptibly under the influence of liquor; and from the affidavit of Mackey it appears that one of the officers, Curtiss, was intoxicated on the night in question, while in charge of the jury ; and that, on the following morning, he was unable, at the time of making his affidavit, to remember the occurrences of the preceding night. It further appears that the counsel for both plaintiff and defendant saw the officers taking the jurors to the saloon, and were in the saloon while a portion of the jury came in and called for drinks. The affidavits are voluminous, each side evidently endeavoring to show that the other is responsible in some degree for the conduct of the jury, and with a design to influence them in some way in their verdict. The facts present a rather scandalous procedure, one party distrusting and watching the other, in the apparent belief that an effort was being made to reach the jury in some unlawful manner. While the attorneys do not appear to be in any way guilty of such conduct, certainly the practice of watching a jury during their deliberations is not commendable, and this case ought not to be considered as establishing a precedent to be hereafter followed.

It is claimed by the defendant that the verdict should not be allowed to stand, in view of the fact that some of the jurors drank intoxicating liquor. Humerous authorities have been cited, from the reports of this and other states, for and against the proposition ; and, so far as I have been able, I have examined the cases with what care I could. The decisions are not uniform in the various states, and in this state the courts have not at all times followed the same rule on motions to set aside verdicts for the misconduct of the jury.

In People v. Douglass, 4 Cow. 26, two of the jurors separated from their fellows, and drank whisky, and conversed freely on the subject of the trial. Justice Woodworth, in writing the opinion of the court, says: “ The English cases are uniform that though the jury separate, if there be no further abuse, this shall not vitiate the verdict, although it would be a contempt of court if contrary to their instruction, and would be punishable as such. * * * This [drinking spirituous liquor] should not be tolerated in any shape in the jury during the progress of the trial, and we have uniformly held that it vitiated the verdict in a civil cause, even when the liquor was given to the jury by consent.”

Justice Sutherland said, in the same case: “There is no difference among us that the mere fact of drinking spirituous liquor is enough to set aside the verdict. * * * When any one of the jury, in the course of the trial, drinks spirituous liquors, we will set aside the verdict on this ground alone.”

In Rose v. Smith, 4 Cow. 17, which was a civil case in a justice’s court, spirituous liquor was circulated among the jury while sitting in the case. In setting aside the verdict, the supreme court said: “The circulation of spirituous liquor among the jury was of itself fatal; ” and, if it took place with the consent of the parties, it did not matter. “ It has been thought necessary to interfere and set aside the judgment whenever it appears that spirituous liquor has circulated among the jury.”

In Brandt ex dem. Buckbee v. Fowler, 7 Cow. 562, after the judge had concluded his charge, several of the jurors requested permission to go out; and the judge told them they could go, accompanied by an officer. Oneof them, misunderstandingthecbargeof thejudge, while out, separated himself from the officer, and drank about a third of a glass of brandy; and on a motion for a new trial the court say: “We cannot allow jurors of their own head to drink spirituous liquor while engaged in the course of a cause. We are satisfied there has been no mischief, but the rule is absolute, and does not meddle with consequences, nor should exceptions be multiplied. We have set aside verdicts on error for this cause even when the parties consented that the jurors should drink.”

In Oliver v. Trustees, 5 Cow. 283, the jury were told to seal their verdict and disperse. They told the constable they had agreed, and dispersed, and the next morning delivered a paper announcing that, after due deliberation, they did not agree. After dispersing, some of them were seen in a barroom, where the case was much talked of. On coming into court again, they were directed to retire, and consider the case, which they did, and returned a verdict for the defendant. The court, in setting it aside, say: “ We think the circumstances of this case in themselves amount to positive abuse. They evidence the want of respect in the jury to the obligation imposed upon them by their situation, which cannot be sanctioned consistently with the rights of parties.

In People v. Ransom, 7 Wend. 417, error was claimed in the clerk not putting one of the ballots into the box, by mistake, until the other names had all been drawn out. Justice Sutherland, in discussing what irregularity is sufficient to set aside the verdict of the jury, after reviewing the authorities, comes to the conclusion that any mere informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be sufficient ground for setting aside a verdict, either in a civil or criminal case, where the court is satisfied that the party complaining has not or could not have sustained any injury from it, and that the rule in this respect is the same in civil and criminal cases.

In Stevens v. People, 19 N. Y. 549, where the defendant was on trial for murder, the jury were, by consent, allowed to separate during the trial. It was held by the court that it was not an error, unless the defendant was in some manner prejudiced.

The case of People v. Schad, 58 Hun, 571; 35 St. Rep. 148, arose on a motion to set aside the verdict of a jury for misconduct, under subdivision 3 of § 465 of the Code of Criminal Procedure, which provides that when the jury have separated, without leave of the court, after retiring to deliberate upon their verdict,. •or “ have been guilty of any misconduct by which a fair and due consideration of the case has been prevented,” the court has power to set “ aside the verdict, when the substantial rights of the defendant have been prejudiced.” The defendant in this case was convicted of a felony. After the -jury had retired to deliberate on their verdict, the officer having them in charge, without leave of the court, took them to dinner at an hotel. Before dinner one of the jurors separated from his fellows, and drank brandy at the bar, and another went to the water closet, in the basement of the hotel, and did not accompany the jury to the courthouse, arriving after the others. The general term, in setting aside the verdict, said: “We have no hesitation in saying that this motion discloses misconduct on the part of the jury, which vitiated the verdict, and for which a new trial should be granted. * * * In the absence of evidence that either of the jurors, while separated from his fellows, conversed with any person on the subject of the trial, we should no doubt support the trial court, in the exercise of its discretion, not to grant a new trial for the sole cause of the separation of the jury. But the conceded fact that, during the time devoted to the deliberations of the jury, one of their number twice indulged in the use of intoxicating liquor, we regard as fatal to the verdict. * * * In respect to the use of intoxicating liquor, it is impossible for the court to measure or estimate the effect of alcoholic stimulant, which varies with the susceptibility of the person by whom it is taken. It is enough that its well-known tendency is to produce an abnormal elevation, * * * and a corresponding disturbance, in a greater or less degree, of the reasoning powers. It is for this reason that the use of intoxicating liquor by jurors while deliberating on their' verdict is not permitted, except as a necessary medicine; and its unauthorized use at such time by one of the jurors has usually been regarded in this country as "furnishing ground for setting aside a verdict in-case of a felony.”

If the case at bar was a felony, I should have no hesitation in saying that the authority above quoted would be conclusive upon me in determining this motion; but it is claimed that it arose under a section of the Criminal Code, and has no application to a civil action. It will be observed that the last clause of subdivision 3 of this section of the Code does not specify what misconduct is sufficient to warrant the interference of the court, but “ any misconduct by which a fair and due consideration of the case has been prevented ” will authorize the court to interfere. From tin examination of the authorities, it has been quite uniformly held that drinking intoxicating liquor during the deliberation of a jury is sufficient to set aside a verdict. The enactment of this section of the Code into a statute has furnished no new grounds for the exercise of judicial discretion, but is rather a codification of the causes which have operated for a long time on the courts of this state in setting aside verdicts for the misconduct of jurors. It is not clear why a cause which would be sufficient to vitiate a verdict in a criminal case would not be sufficient to warrant the interference of a court in a civil case. In fact, it has been repeatedly said by judges, in discussing the causes for which a court; might properly set aside a verdict, that the rule is the same in civil as in criminal cases ; and instances are referred to in which courts have set aside verdicts in civil cases, for the sole reason that one or more of the jurors have drank intoxicating liquor during the trial, as well as after they had retired for deliberation. Brant v. Fowler, 7 Cow. 562; Oliver v. Trustees, 5 Cow. 283; People v. Douglass, 4 Cow. 26.

A clear distinction is made by the courts between drinking during the progress of the trial, while the jury are at liberty to separate and go where they please, and drinking after the case has been finally submitted to them for their deliberation. Such was the case of Wilson v. Abrahams, reported in 1 Hill, 207. The misconduct complained of was during the progress of the trial, and not after the jury had retired, in charge of an officer, to deliberate. In that case the court, in commenting upon the case of Brant v. Fowler, says: “ The jurors were not, as in this case, at liberty to go where they pleased, nor had they the light to take either food or drink without the permission of the court. * * * The judge had delivered the charge, and the trial as to everything but the verdict was at an end before the jurors were permitted to rein the case of People v, Pscherhofer, 64 Hun, 483; 46 St. Rep. 734, the court said:

“ The cases in which verdicts have been set aside for misconduct of jurors in the use of liquors are those in which the liquor has been drunk, without leave of the court or medical prescription, after the case has been submitted to the jury for their decision. ’’

So, in the case of Hager v. Hager, reported in 38 Barb. 92, the jury were out several hours, unable to agree, and dinner was ordered them by the court, and, while waiting for dinner, some of the jurors separated from the restand mingled. promiscuously with persons in the barroom, and heard persons converse about the action. Some of the jurors conversed with other persons than the jury, and with the constable, while they were deliberating in their room, and were with them and conversed with them on other subjects than to ask them if they had agreed upon their verdict; and the court held that it did not appear that the jury was in any way influenced in their verdict by what had been said in their presence, and sustained the special term in refusing to set aside the verdict for misconduct of the jury; but in that case the question of the effect of drinking spirituous liquor by the jury while in the course of their deliberations was not before the court, nor was it discussed by the learned judge who wrote the opinion. To the same effect is the case of Smith v. Thompson, 1 Cow. 221, where two of the jurors eluded the constable, and left the room, and remained away until morning. It was held that, while it was clearly irregular to separate from their fellows, yet it did not affect the merits of the case between the parties; that whether the verdict is to be set aside depends upon circumstances, and the real justice of the case, but, if there is a probability of abuse, the court, in its opinion, says: “We then notice it, but here is none.” The same rule was held in Ex parte Hill, 3 Cow. 355, the court holding that it was the settled doctrine that the mere separation of a jury is not ground for avoiding the verdict; nor is it sufficient ground to avoid the verdict that the constable has interfered with the deliberation of the jury in favor of one of the parties. Baker v. Simmons, 29 Barb. 198; Taylor v. Everett, 2 How. Pr. 23 ; People v. Hartung, 17 id. 85.

It thus appears that, while the courts will not now set aside a verdict because a juror has taken a drink of liquor at' his own expense during the progress of the trial, and while he is at liberty, while not in court, to go where he pleases, if he does not drink to excess, so as to impair his power of deliberation or influence his judgment, a verdict will not be set aside, either in a civil or a criminal case; but even then, if his conduct is such as to show an utter disregard of his duty, and no just sense of the responsibility of his station, the verdict should be set aside. A proper respect for the due administration of the law in the trial of causes imposes the duty upon the court to act promptly in setting aside verdicts, when there is just ground for believing the condition of the jury was such that a fair and intelligent deliberation could not be bad, and a just conclusion arrived at, by reason of overindulgence in any intoxicant. The practice of the courts in cases of the misconduct of a juror in drinking during the progress of the trial, or while deliberating upon their verdict, is not entirely uniform in the different states. In California it has been held, and such seems to be the rule, that drinking intoxicating liquor during the deliberation of the jury is sufficient cause for avoiding the verdict. People v. Lee Chuck, 20 Pac. 719. But in State v. Baldy, 17 Iowa, 39, and Ryan v. Harrow, 27 id. 494, a different rule was held. In Massachusetts, in some cases, it has been held that drinking spirituous liquors, during the progress of the trial does not necessarily avoid the verdict. In Indiana, in Carter v. Glass Co., 85 Ind. 180, it was held that, where the juror left his fellows after being charged by the court, it would not of itself avoid the verdict. So, in some of the other states, a like rule has been followed, and some of the elementary writers also lay down the rule that drinking beer or liquor will not be sufficient to set aside a verdict, unless intoxication or inability to discharge his duty follows.

While the early rule of the courts in thi? state, which held that drinking liquor during the progress of the trial would avoid the verdict in either a civil or criminal case, has been somewhat relaxed by the more recent decisions, yet it now seems to be well settled that drinking spirituous liquors by jurors, without leave of the court, while deliberating on their verdict, is a sufficient ground for setting it aside, whether the party obtaining the verdict is responsible for such misconduct or not; and I have been unable to find any case in this state in which the verdict was sustained where it clearly appeared that the jury had been guilty of drink-after the of the court and the final retirement of the jury for deliberation. It seems to me that this is the better rule: A party is entitled to the’clear and deliberate judgment of the jury, not acting under the excitement of intoxicating liquor or the stupor following from its use. It is well known that jurors uniformly swear that they have not been influenced by its use, and that they were able to give to the case that same calm and dispassionate consideration which ordinarily characterizes their business transactions when entirely free from the effects of stimulants, but I think common observation rebuts this conclusion, notwithstanding they maybe entirely conscientious in making it.

The counsel for the plaintiff claims that, at all events, the defendant has waived his right to object to the misconduct of the jury, and that it is now too late to ask that the verdict be set aside. I am aware of the rule that a party knowing of the misconduct or irregularity of the jury must act promptly in bringing the matter to the attention of the court if he intends to take advantage of it; but I think the facts in this case show that the defendant acted sufficiently promptly, and that he has not waived the right to have the matter investigated by the court, and the wrong righted. The jury came into court in the morning, and were in their seats when the court was opened, at ten o’clock. Their names were first called, and the usual question asked them; and, when they had announced their verdict, the first proceeding in court was a motion to set it aside. ¡No time elapsed after the court convened and the jury announced their verdict before this motion was made. The only way it could have been done more promptly was to interrupt the court in its orderly proceedings by telling what had occurred, as no opportunity was given counsel to' make a motion until after the verdict was rendered. The grossness of the offense, as it appears from the affidavits in this case,, should not, it seems to me, be readily condoned, or the party held to a too strict waiver of his right to bring the matter to the attention of the court. I do not think the defendant has waived his right to make this motion. From what has been said, it follows that the motion to set aside the verdict of the jury for misconduct must be granted.


text:
    Charles Pratt, Pl’ff, v. Walter Bray et al. Def’ts.

      (Buffalo Superior Court, Special Term,

      Filed December, 1894.)

    1. Deposition—Examination before trial.
    A county judge of the county, where the attorney for the applicant resides, may grant an order for the examination before trial of the plaintiff in an action, brought in a superior city court.
    2. Same—Affidavit.
    The failure of the affidavit, in such case, to state that no previous application had been made therefor, does not affect the validity of the order.
    3. Same.
    Applicant need not state in liis moving papers that he intends to read the testimony taken under the order on the trial of the action.
    Motion to set aside an order granting an application for the examination of plaintiff before trial..

      M. Fillmore Brown, for pl’ff; M. A. Gearon and James R. Cox, for def’ts.
   Titus, C. J.

The plaintiff commenced an action against the defendants, in which he asks that certain deeds of conveyance of property in this city made by the defendant Stevenson to the defendant Mary E., his wife, be set aside as fraudulent as to the plaintiff. The plaintiff is a judgment creditor, having obtained judgment against Stevenson, and, executions having been returned by the sheriff unsatisfied, he asks that his judgment be declared a lien on this property, and paid out of the proceeds in case a sale, should be ordered. No answer has yet been interposed by any of the defendants; but on the 12th day of November the defendants Bray, through their attorney, James B. Cox, of Auburn, Cayuga county, made application on affidavits to Greorge Underwood, county judge of Cayuga county, for an order that the testimony of the plaintiff be taken before Louis W. Marcus, referee, named in the order for that purpose. The plaintiff now moves to set aside the order, on the ground, as stated by him in his affidavit, that the county judge of Cayuga county had no authority to grant the order, and on the ground that it does not appear in the moving affidavits to obtain the order that no other application had been made, as required by rule 25. The affidavit contains all of the averments which are required by the Code to authorize the court to grant an order in such cases. Code Civ. Proc. § 872; Ludewig v. Pariser, 4 Abb. N. C. 246. It has been held that, where the object of the examination is to disclose the evidence upon which a party intends to establish his case, an order will not be made, but, when the examination will tend to establish the applicant’s cause of action or defense, it will be granted. Adams v. Cavanaugh, 37 Hun, 232. I think the county judge of Cayuga county properly granted this order. Section 872 of the Code provides that a party may present his affidavit “ to a judge of the court in which the action is pending, or, if it is pending in the supreme court, to a county judge, or, if an action is not pending, but it is expected to be brought, to a judge of the supreme court or of a superior city court, or to a county judge.” It will be seen that this section makes no provision for granting an order to examine a party by a county judge when the action is pending in a superior city court, but the party must present his application “to a judge of the court in which the action is pending.”' Section 772 does not seem to confer any additional authority upon county judges where the particular judge is specified in the statute who may make the order. It provides that where an order in an action may be made by a judge of the court out of court and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court * * * o.r by the county judge of the county * * * in which the attorney for applicant resides,” clearly intending to give power to the county judges where a particular judge is specially designated, as appears to be the case in section 872, which provides that the application must be made to “a judge of the court in which the action is pending,” if such action is pending in a superior city court. Section 277, which is found under the title of the Code relating to superior city courts, seems, however, to authorize the granting of the order in this case. It provides that, “ in an action or special proceeding brought in a superior city court, an order may be made without notice * * * by the county judge of the county where the court is situated, or to the county where the attorney for the applicant resides, in a case where a judge of the superior city court might make the same out of court and with like effect.” It seems to me that this language is broad enough to confer the necessary authority upon the county judge of Cayuga county to make the order which was made in this case. 1 have been unable to find authority exactly in point, but the plain' reading of the statute seems' to be sufficiently explicit to admit of no serious doubt of the poWer of county judges, in cases of this character, to grant such an order.

I do not think the order is open to the objection which the plaintiff’s counsel makes, that it is “ for the purpose of fishing.” While it is not in all cases so easy to place a limitation where the courts will refuse an order for the reason that a party intends to possess himself of the evidence upon which another relies for the prosecution or defense of his action, the facts here presented seem to warrant an examination of the plaintiff to enable the defendant to make his defense. He alleges the testimony is necessary and material, which is in compliance with the statute; and from the affidavit is is evident that it may be important to him in forming his answer, and there- does not appear to be anything to cast suspicion upon the purpose of the testimony, or that it is for a different purpose than the one stated in the moving papers. Fogg v. Fisk, 65 How. Pr. 351; Brisbane v. Brisbane, 20 Hun. 48.

The objection that the affidavit does not state whether any previous application for the order has been made, as required by rule 25, I do not think should be allowed to defeat this order. The rule provides that for an omission to comply with its requirements any order made on such application may be revoked or set aside, leaving it to the sound discretion of the judge or court to set it aside or not, as - justice may require. The omission to comply with, the rule was a simple irregularity, not absolutely entitling ¡the plaintiff to a revocation of the order, and it would not, in my opinion, be just to the parties to set aside the order for that reason. The general term of the first department, on somewhat similar facts, refused to set aside an order, although the party had failed to comply with the requirements of rule 25 in that respect. I have examined the authorities cited by the learned counsel for the plaintiff with some care, and their application to the facts in tlu; case, and they do not seem to'bear out his contention. It is not necessary for the applicant to state in his moving papers that he intends to read the testimony taken under this order on the trial of the action. A party may be examined for other purposes than to perpetuate his testimony. In fact, the statute does not seem to contemplate that an examination of a party may be had for such a purpose, but to discover, facts to enable him to prepare for the prosecution or defense of the action. I think, therefore, the motion made to vacate the order of the county judge of Cayuga county must be denied, with $10 costs to the defendant to abide the event of the action.


author: Gildersleeve, J.

text:
    The People ex rel. James Oliver, Pl'ff, v. Board of Police Commissioners of the City of New York, Def’t.

      (New York Superior Court, Special Term,

      Filed November, 1894.)

    Elections—Certificate of nomination.
    Under § 57, chap. 680 of 1892, the voters must sign both the oath and the certificate.
    Application for mandamus to the board of police commissioners of the city of New York.

      James Oliver, for the motion ; William H. Clark and Theodore Connoly, opposed.
   Gildersleeve, J.

This is an application for a peremptory mandamus to compel the board of police commissioners of the city of New York to provide at each polling place in every election district in the Second assembly district of this county, at the coming election, official ballots, on which shall be printed the name of James Oliver for member of assembly for said assembly district, in the manner prescribed by statute. The police board rejected the certificates of nomination of said James Oliver, and he now seeks by mandamus to compel them to accept the same. The only question involved in this application is whether the certificates of nomination are in apparent conformity with the provisions of the statute (Laws 1892, c. 680). It is provided by section 57 of the statute that " the nominations shall be made by a certificate signed and acknowledged by such voters, each of whom shall add to his signature his place of residence, and make oath that he is such voter, and has truly stated his residence.” Section 65 of the statute provides that “ a certificate of nomination which is in apparent conformity with the provision of this article shall be valid, unless written objections thereto shall be filed.” In this case the candidate has filed the requisite number of certificates, and no objections have been filed. In each instance the voter has signed the certificate, added his place of residence, and acknowledged it before a notary, but has omitted to sign the oath required by the statute. In other words, the voter has signed the paper once, whereas he should have signed it' twice,—i. e. once to the certificate of nomination and once to the oath. See People ex rel. Klinker v. Board of Police Com’rs, 63 St. Rep. (Barrett, J.). The facts here presented are precisely the same as those before Mr. Justice Barrett in the Klinker Case. Klinker’s application was denied by the learned justice, and an opinion filed which is to be commended. The rule there laid down is a wise and wholesome one, and should be strictly enforced. The oath of the nominor. as evidenced by the signature thereto, is a safeguard against fraud and imposition. Although there is no intimation of fraud in the case under consideration, and I am satisfied of the good faith of the applicant, and that the absence of signatures to the oath is clearly due to inadvertence and want of proper care in the preparation of the certificates, still I am of opinion that the board of police commissioners were warranted in rejecting the certificates, for the reason that they aré not in apparent conformity with the provisions of the statute. The motion for a peremptory mandamus should be denied, but without costs. Motion denied, without costs.


author: Van Wyck, J.

text:
    William H. Jones, as Administrator, etc., App’lt, v. Brooklyn Heights Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed December 24, 1894.)

    1. Negligence—Contributory.
    It is not negligence, as a matter of law, for a parent to permit a child of four years of age to go upon the street to play, especially in charge of a 12 year old sister.
    2. Same—Motorman.
    It is the duty of the motorman of a trolley car, passing through the streets of a city, to be watchful of the presence of pedestrians, both adults and children, approaching or crossing his track.
    Appeal from a judgment of nonsuit.

      B. F. Strauss, for app’lt; Morris & Whitehouse, for resp’t.
   Van Wyck, J.

It can be fairly inferred from the evidence in this case that Maggie Jones, aged 4 years, went upon the street to play, in charge of her 12 year old sister, on July 12,1893, in broad daylight, and that she and an older sister proceeded to Fulton street, between Ralph and Howard avenues. They started to cross Fulton street, the elder sister being in the lead, and Maggie following her. Defendant’s car, about 200 feet away, was approaching from Howard avenue, the line of their passage. There being nothing to obstruct the motorman’s view of the children, he continued his course and speed. The oldest child succeeded in safely crossing his track, but Maggie, as she stepped upon the track, was knocked down and run over. The mortorman failed to see her till someone hallooed to him, when he turned around, from watching and speaking to the child who had safely crossed over and was near the sidewalk, and saw little Maggie for the first time, directly in front of his car, a foot or two ahead of it, when he put on his brake, and stopped the car within fifteen feet, but it was too late; she had been killed. He said he could have seen her before if he had looked to the front of him. This is an action to recover damages for her death. The trial court nonsuited plaintiff, on the ground that the motorman was not negligent, though the motion was made also on the ground of contributory negligence of the deceased and her parent. We will waste but little time in referring to the latter, though the respondent still presses it, for it was at least a question for the jury to determine whether this child was sui juris or non sui juris. If the latter, she could not be chargeable with negligence. It is too well settled to require citations that it is not negligence, as a matter of law, for a parent to permit a child of that age to go upon the street to play, especially in charge of a 12 year old sister. Huerzeler v. Ventral C. T. Railroad Co., 139 N. Y. 490; 54 St. Rep. 863. It is the duty of a motorman of a trolley car passing through the streets of a city to be watchful of the presence of pedestrians, both adults and children, approaching or crossing his track. This motorman candidly admitted that he did not see this child till his car was in the act of colliding with her, and that he could have seen her before if he had been looking in his front. If he had seen a child of such tender years approaching his track as if to cross, it would certainly have been his duty to have stopped, or at least slowed up, for the dictates of ordinary care would naturally suggest to him that he.could not rely upon her appreciation of the dangers confronting her, or assume that she would so act as to avoid them. Did the motorman fail to see her in time to save her through negligent inattention to his duty to be watchful under the circumstances? was a proper question for the jury to answer. The views of this court, upon circumstances very similar" to those in this case, have been fully expressed in Keenan v. Brooklyn City Railroad Co, 8 Misc. Rep. 601; 60 St Rep. 831; Dowd v. Brooklyn II. Railroad Co., 9 Misc. Rep. 279; 61 St. Rep. 321, and Timony v. Broolclyn City N. Railroad Co., 63 St. Rep. 311; and in further support of our conclusion, we refer to Thurber v. Baltimore, M. & F. Railroad Co., 60 N. Y. 326; Moebus v. Herrmann, 108 N. Y. 349; 13 St. Rep. 648.

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