text:
    William S. Cooper, App'lt, v. Jacob Fretnoransky, Resp’t.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Lease—Surrender—Modification.
    Defendant held possession of premises under a lease not under seal, thereat payable quarterly in advance. Upon his undertaking to remove, the landlord, by his agent, said he would rather have him there than the house idle, and that if he would remain he would charge him nothing for the quarter, and defendant thereupon remained. Held, that there was a good consideration for the agreement; that it constituted a surrender by operation of law, or at least was operative as a modification of the old lease.
    . Appeal from judgment of the district court on the verdict of a j ury. Action for rent

      Albert I Sire, for app’lt; William K Goolc, for resp’t
   Pryor, J.

By a lease in writing, but not under seal, the premises were let to the defendant for .one year from the 1st May, 1890, at an annual rent of $800, payable quarterly in advance. On the 1st of November, therefore, $200 were due for the quarter-ending on the 31st of January. On the 11th of November the-defendant paid the $200 in instalments of $48 and $154, the receipt for the latter reciting that it was “in full to April 30th.” The action is to recover rent for the quarter from 1st February to 30th April. The defense is a surrender on the 11th of November, or at least a modification of the original demise.

The jury were authorized to find, and their verdict must betaken as finding, that on the 11th of November the defendant, was in the act of removing from the premises, having placed his things in a wagon for that purpose; that thereupon the plaintiff, by his agent, said to the tenant that he would rather have him there than the house idle, and that if he would remain in the-house he would charge him nothing for the quarter in question ; and that thereupon the defendant resumed occupancy of the premises. Upon this state of facts the question is, was there a surrender, or a change of the contract of letting, whereby the defendant was to occupy the premises for the last quarter without payment of rent ?

That the facts shown constituted a surrender by operation of' law, would seem to follow from the adjudication in Stanley v. Koehler, 1 Hilton, 354. There the lease was from October to May; on the 1st of December the tenant removed from the premises ; three days before the removal he sent word to the landlord that he'was about to quit, and the landlord replied that he was sorry, and he gave the tenant permission to leave some of his property on the premises; held, a surrender, and that no rent could accrue thereafter. In the present case, while the tenant, was moving out of the house with the declared intention of abandoning the premises, the landlord said to him that he would rather have the tenant remain than the house “ idle;” and that ff he would remain he should be free of rent for the quarter in question; that thereupon the tenant resumed occupancy of the premises ; and that accordingly the landlord gave him a receipt in full to the 30th of April. Here beyond doubt was a termination of the demise and a creation of a„new term upon totally different conditions. “ A surrender by operation of law may be derived from the acts of the parties, or be effected by words manifesting the intention of the lessee to yield up the estate, or by acts of the parties which imply that both agree to consider the surrender as made.” Beall v. White, 94 U. S., 382. “A surrender is implied and effected by operation of law when another estate is. created by the reversioner, with the assent of the tenant, incompatible with the existing estate, or term, as by the taking of á new lease by the lessee.” Coe v. Hobby, 72 N. Y., 141, 145; Abell v. Williams, 3 Daly, 17; 1 Schouler on Personal Property, 38; 6 Lawson on Rights and Remedies, 4669; 12 Am. & Eng. Ency. of Law, 758i; McAdam on Landlord and Tenant, 467.

But the appellant contends, and rightly contends, that a new lease, to be effectual as a surrender, must be a valid lease, and that the second demise to the respondent was void for want of consideration.

It is an elementary principle that a legal possibility of benefit to the contractor or detriment to the contractee is a sufficient consideration to support an agreement Mow, here the tenant had resolved to leave the premises and had partially removed therefrom, when he was induced by the promise of the landlord to resume occupancy and to continue in possession. This continued possession the landlord himself treated as a benefit to him, he would rather have the tenant remain than the house idle, and it is quite conceivable that by continuing in possession the tenant incurred some loss and submitted to some sacrifice. It is apparent, therefore, that the landlord’s engagement to let the tenant have the premises rent free for the quarter in question is upheld by a valid and sufficient consideration.

Appellant urges, however, that the consent of the tenant to remain on the premises was inoperative as a consideration, because thereby he only agreed to do what by the original lease he was already under legal obligation to do. But this is a gratuitous assumption. By no express or implied terms of the demise was the tenant obliged to occupy the premises. His engagement was, not to occupy them, but to pay rent for them; and the engagement of the landlord was that he might, not must, occupy them. Indisputably the tenant was free to leave the premises at will.

Assuming, however, that here was no surrender of the term, still the agreement would be operative as a modification of the original lease. Coe v. Hobby, 72 N. Y., 141, 148. The lease being only, for a year and not under seal, its terms were susceptible of change by paroi stipulation.

It is questionable whether the landlord’s agent had authority to make the new agreement, and had the point been taken it might have been fatal to the defence; but as it was suggested neither at the trial nor upon this appeal, the presumption is that the parties assented to the agent’s authority. Wilson v. Lester, 64 Barb., 431, 438.

The result is that the judgment must be affirmed; and so ordered, with costs.

Bischoff, J., concurs.


source: Caselaw Access Project

author: Daly, Ch. J. Bookstaver, J.

license: Public Domain

text:
    In the Matter of the Final Accounting of the Executors of Nathaniel Gilman, Deceased.

      (New York Common Pleas,

      General Term,

      Filed January 15, 1892.)

    Surrogates—Jurisdiction or common pleas in case or disqualification.
    Upon,'the enactment of the Code the judisdiction and powers of the surrogate, where he was disqualified from acting, devolved upon the court of common pleas at special term pursuant to § 2486, irrespective of the.time when the proceeding was commenced in respect of which the disqualification existed, and the only effect of the limitation in § 3347 was-to require that the mode of procedure in proceedings commenced before September 1, 1880, should conform to the practice before the enactment, of the Code, except as to such special regulations as of necessity attach to the new jurisdiction created.
    Appeal from order of special term denying appellant’s motion to vacate a final decree in the above matter.
   The following is the opinion at special term :

Daly, Ch. J.

This is a motion by Caroline R. Garczynski, a. granddaughter of the testator, to vacate a final decree on accounting made at a special term of this court on August 7, 1888, on. the ground that this court at special term was without jurisdiction to make such decree.

The decree in question recites that the then surrogate, Rastus S. Ransom, had filed on February 23, 1888, a certificate stating-that he was disqualified from acting in respect to the accounts of the executors of Nathaniel Gilnian, deceased, by reason of bis-having been theretofore counsel for one of the contesting parties. Thereupon this court at special term proceeded to hear the exceptions which had been filed to the report of the referee appointed on December 29, 1887, to resettle the accounts of the executors of the said deceased, and to take testimony and report upon certain questions particularly set forth in said order. The proceeding- for accounting in which the said order was made had been instituted by citations issued from the surrogate’s court and returnable in the year 1871.

By the provisions of § 2486 of the Code of Civil Procedure, it-is enacted that in the county of New York the court of common pleas at a special term thereof must exercise all the powers and jurisdiction of the surrogate’s court in any matter wherein the-surrogate is disqualified from acting. This provision was in force when our special term proceeded with the hearing and made the-decree above set forth. It is now urged that that provision applies only to a proceeding commenced after September 1, 1880 (see subd. 11 of § 3347, Code), and that with respect to a proceeding commenced before that date the jurisdiction, when thesuiTogate is disqualified, is to be exercised by a judge of the court. of common pleas, acting as surrogate, according to the practice existing prior to the enactment of the Code of Civil Procedure. In other words, that the hearing and decision upon the final accounting in this matter should have been by a judge of this court and not by the court at special term.

Section 3347, subdivision 11, above cited, defines the application of portions of the Code of Civil Procedure. It provides that so much of certain chapters, including the eighteenth, which embraces § 2486, “ as regulates the proceedings to be taken in an action or special proceeding, and the effect thereof, applies only to an action or special proceeding commenced on or after the 1st day of September, 1880.” It appears, therefore, that the limiting clause of § 3347 does not apply to the whole of chapter 18; only to so much of that chapter as regulates proceedings. The chapter embraces seven titles relating to surrogate’s courts and the proceedings therein. The first title relates to the organization, jurisdiction and powers of the surrogate’s court, the duties, powers and disabilities of the surrogate and the officers of the court. It is in this title that § 2486, occurs which provides that the common pleas at special term shall act as surrogate in any matter wherein the surrogate is disqualified to act. It is in the subsequent titles of the chapter that provision is made for proceedings lg. the surrogate’s courts, appeals from those courts, practice upon granting and revoking probate, letters testamentary, letters of administration, proceedings by or against a testator, touching the settlement and administration of an estate, etc., etc.

It thus appears that there are certain portions of chapter 18 which do not embrace provisions regulating proceedings, and such portions took effect with the Code, and are nowhere limited in application in any respect. The words “ regulate the proceedings ” refer only to the questions of practice and rules for the conduct of proceedings. The section in question (3347), has already received j udicial interpretation. In the Matter of the Estate of Sexton, 2 McCarty Civ. Pro., 94, it was held that the word “proceedings” in the section means modes of procedure, and the whole phrase, “ proceedings in a special proceeding,” means the forms by which the various steps in a special proceeding are conducted. This has nothing to do with- the provisions defining the powers and jurisdiction of the surrogate, and providing for the exercise of such powers and jurisdiction, when he is disqualified from acting.

In addition to the foregoing view, it is contended by the respondents upon this motion, that it will appear from the opening sentence of | 3347 that the express provisions of chapter 18, designating or referring to the court of common pleas and the proceedings therein, are excluded from the limitations of that section. This contention is based upon the following language: “The application and effect of certain portions of this act are declared and regulated as follows; except that where a particular-provision included within a chapter, or a portion of a chapter, specified in a subdivision of this section, expressly designates the courts, persons or proceedings affected thereby, that provision is deemed excluded from the application and effect prescribed in the subdivision.” As chapter 18 includes a particular provision expressly designating the court which is to act in place of the surrogate and- the proceedings thereupon, that provision is therefore excluded from the application and effect of subdivision 11 of § 3347,. which the moving party here relies upon as controlling upon the question of jurisdiction.

Henry M. Knox and Thomas- S. Ormision, for George F. Gilman,, exr., resp’t; James A. Hudson, for Charles B. Gilman, exr., resp’t;. George H. Starr, for C. E. Garczynski, app’lt.

It would seem, therefore, that upon the enactment of the Code-of Civil Procedure the jurisdiction and powers of the surrogate, where he was disqualified from acting, devolved upon this court, at special term pursuant to § 2486, irrespective of the time when the proceeding was commenced in respect of which the disqualification exists, and that the only effect of the limitation contained in § 3347, if any, was to require that the mode of procedure in. proceedings commenced prior to September 1, 1880, should conform to the practice before the enactment of the Code, except as-to such special regulations which of necessity attach to the new jurisdiction created. ' . -•

Motion to vacate the decree of August 7, 1888, denied.

Bookstaver, J.

The sole ground for the motion and for this appeal from the order denying it is that the decree should have been made by a judge of this court as such, and not by the judge-at special term. It seems to us that this is merely a contention as to the form of the decree, and does not involve any question as. to the propriety or soundness of any of the provisions of the decree. It was settled on notice to appellant, and she should then have raised this question. If she did, then the matter was passed, upon by the judge who heard the motion and settled the decree,, from which we were informed on the argument she promptly appealed. On the argument of that appeal this question can be-brought up. The decree was settled August 7, 1888. But this, motion was not made until the 23d day of March, 1891, more than two years and a half after the decree was entered. Her lachesshould, therefore, preclude her from any relief, unless the court, was absolutely without jurisdiction to make the decree in the-form it did.

This question has been fully and carefully considered by the-learned chief judge, and we fully agree with him in the conclusion to which he arrived and the reasoning by which he reached that conclusion.

It only remains to notice some of the authorities cited by appellant’s counsel in support of his contention. Pruyn v. Lynch, 44 Hun, 587; 8 St. Rep., 731, came before the general term of the-third department upon an appeal from the county court, which was pending on the 1st of September, 1880, the original judgment, having been rendered by a justice of the peace at a date still earlier. The question before the general term did not involve-any question of jurisdiction, but was as to proceedings merely;; hence the comment of the court as to what was “ the intention of the saving clauses in the Code of Civil Procedure ” must be confined to the particular question under consideration. In the Matter of the Estate of Weston, 91 N. Y., 502, the court of appeals had under consideration the question as to whether the old law or the new controlled the surrogate in the matter of the amount of costs- and allowances to be awarded. There was no question before the court which rendered it necessary to determine whether any of the sections of chap. 18 of the Code, relating to matters of jurisdiction, were or were not covered by the exempting clause of § 3347, and the learned judge who delivered the opinion of the court expressly excepts “ certain sections ” which did not affect the question of costs from consideration; for this reason we think the language of the court must be regarded as relating to the details of proceedings merely. In Mills v. Hoffman, 92 N. Y., 181, the question was whether the surrogate in rendering a decision in a proceeding commenced in May, 1880, was required by the Code,, which was in effect at the time of rendering the decision, to make findings of fact under § 2545. This section again relates to details of proceedings, and not to jurisdictional matters, and upon that question only was the effect of subd. 11 of § 3347 considered critically. We therefore think that the language of the court should ji)e regarded as relating to matter of proceedings and not as having in view any question of jurisdiction, for that was conceded in the case.

We therefore think the order should be affirmed, with costs.

Bischoff, J., concurs.


author: Mayham, J.

text:
    Henry Weed, Resp’t, v. The Fire Association of Philadelphia, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Insurance—(Fire)—Insurable interest.
    One Richards executed a mortgage to one Weed. Subsequently Richards executed a trust deed of the premises to one Sage, with a proviso that the surplus, after payment of debts, should be returned to Richards. Held, that Weed had an insurable interest, which was not divested by the trust deed.
    2. Same—Policy—Assured insufficiently described.
    It is not necessary to the validity of an insurance policy that the name of the assured appear in it, and where the description is in this respect imperfect or ambiguous resort may be had to extrinsic evidence.
    Appeal from a judgment in favor of the plaintiff against the defendant entered upon the verdict of a jury which was directed by the court. The action was brought to recover upon insurance policy issued by the defendant to the estate of O. ¡Richards for the term of one year for $675 on the grist mill and $325 on machinery therein, loss, if any, payable to Henry E. Weed, mortgagee, as his interest may appear. At the conclusion of the evidence both, plaintiff and defendant asked the court to direct the jury to find a verdict in their favor respectively; and the judge thereupon directed a verdict for the plaintiff.

      A. H. Sawyer, for app’lt; Q. B. Wellington, for resp’t.
   Mayham, J.

The plaintiff brought this action as mortgagee to recover on a fire insurance policy issued by the defendant and asks to have the policy reformed so that it shall be payable to him as mortgagee, as his interest may appear, and as so reformed seeks to recover thereon the amount of the face of the policy and interest from the time of the loss on the same.

The answer denies many of the allegations of the complaint and alleges various grounds on which it is claimed by the defendant that the policy is void. The leading facts established on the trial, which bear upon the questions raised on this appeal, are as follows: ,

On and prior to the 30th of October, 1873, one Orson Richards was the owner of certain mill property in Washington county, and on that day he and his wife executed a mortgage to Henry E. Weed, the plaintiff, to secure the payment within three years of all advances that might thereafter be made by Weed to Richards. On the 1st day of May, 1875, Richards and wife executed to Dean Sage a deed of “ all the lands, tenements, hereditaments, real estate, mills, mill privileges, booms, dams, water rights, right of way, easements and appurtenances thereunto belonging, or in any wise appertaining, situate, lying and being in the counties of Essex, Warren, Hamilton, Washington and Saratoga, belonging to them or either of them.” *

This conveyance was subject to all incumbrances then existing on said premises, and was in trust, to hold, enjoy and dispose of the same,» and receive the rents, issues and profits and the proceeds thereof and so long as any of the said property remains undisposed of under the power and in pursuance of the trust, and make application of the rents, issues and profits, as provided in such conveyance, with power to sell, and after paying the specific liens and incumbrances thereon to make application of the remaining proceeds and all other moneys and property received bj him as follows: “First, to pay the expenses of the execution of the ■trust and counsel fees and commission in carrying out the same. Second, to distribute fro rata among all the creditors of Richards according to their legal priority. And the remainder of all the funds received by him as trustee, according to the provisions of such trust deed, after payment of all the obligations of Richards, he was to reconvey to Orson Richards. On the execution of the mortgage by Richards to Weed, he gave Richards his check for $15,125, which Richards used in taking up his papers at the bank. About September 20, 1877, Weed commenced an action to foreclose his mortgage, on which judgment of foreclosure and sale was entered about the 6th of December, 1877, but no sale was made under the judgment

Orson Richards died in September, 1879, and Eben Richards and Julia A. Richards were, on the 13th of November, 1879, appointed administrators of his estate.

On the 23d of August, 1881, the agent of the defendant issued to the estate of O. Richards a policy of insurance against loss or damage by fire in the sum of $1000 upon the property in questian, being $675 on the grist mill building and $825 on the fixed and movable machinery therein.

In Weed v. The Hamburgh Insurance Co., 39 St. Rep., 638, it was held that it was the interest of the plaintiff as mortgagee that was insured. That policy was substantially like the one in suit in this action, except that it contained a clause that the loss, if any,, was payable to Weed as his mortgaged interest should appear. That clause has been inserted in this policy for the purpose of this, action by the stipulation of the parties.

All the questions raised in this case seem to have been disposed, of adversely to the contention of the appellant in that case and: upon evidence substantially the same. In Weed v. The London & Lancashire Ins. Co., 116 N. Y., 114; 26 St. Rep., 414, the court hold, that the court should endeavor to give to the phrase “estate of 0. Richards” such meaning as will harmonize with the conditions of the policy, if it can be done without doing violence to the words used, and that it was not necessary to the validity of the policy that the name of the assured should appear in it, and if the description is imperfect and ambiguous, resort may be had to» extrinsic evidence to ascertain the meaning and intent of the parties. In this contract of insurance Weed at the time of the insurance was mortgagee, and as the policy is reformed must be regarded as appearing as such on the face of the policy.

His mortgage was a lien on the property at the time of the execution of the trust deed to Sage. That deed could not therefore divest him of his mortgage interest, and to the extent of that, interest his rights were as if that deed had not been made.

He presumably makes a contract with the defendant to protect that, interest by his insurance. Under such circumstances it can hardly be doubted that the phrase “estate of 0. Richards” as used in the-policy was by the parties intended to embrace the interest which Weed had in it as mortgagee of the property. That clearly was an insurable interest,and the j ury having found in favor of the plaintiff on that issue upon the evidence in the policy and the extrinsic evidence-offered upon that subject, we cannot disturb that finding. If this insurance had been effected by or in favor of a party not having-a lien on the property prior to the Sage deed, then a different, question would have arisen, and in such a case it would be held, as in Weed v. Ins. Co., 116 N. Y., 106; 26 St. Rep., 414, that the-Sage deed had divested Orson Richards of the title to the property. But here the interest of the plaintiff as mortgagee had attached to that estate prior to the conveyance to Sage. But if we-should assume that the words “estate of O. Richards” relate only to that estate independent of this prior incumbrance, still there could be an insurable interest, as the trust deed directed the surplus to be returned to Orson Richards. Cone v. Niagara Fire Ins. Co., 60 N. Y., 619; Wood on Fire Ins., p. 540, § 313. The case discloses that at the conclusion of the evidence both parties, asked the court to direct a verdict and that neither party asked to submit any questions of fact to the jury. By this practice the parties treated the case as presenting questions of law only, and as there was evidence to support the rulings of the judge, it cannot on this appeal he successfully contended that there were questions of fact arising upon the evidence. Provost v. McEncroe, 102 N. Y., 650. Each party having moved that the jury be ordered to find in his favor and neither having asked that they be instructed to pass upon any question, every fact having the support of sufficient evidence on appeal must be presumed to have been found in favor of the successful party. Sutter v. Vanderveer, 122 N. Y., 652; 34 St. Rep., 211. There being evidence to support the verdict this court cannot disregard the effect of a general verdict in favor of .the plaintiff, notwithstanding the doubt expressed by the trial court.

Judgment affirmed, with costs.

Learned, P. J., and Kellogg, J., concur.


author: Learned, P. J.

text:
    Harriet MacDonald, Resp’t, v. Maria MacDonald et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

      1. Fraudulent conveyance.
    In August, 1889, an action was commenced by the plaintiff to set aside fraudulent conveyances by the defendant of real property. The plaintiff succeeded, and a receiver was appointed. In March, 1890, one Clark commenced a similar action, in which she succeeded. In the meantime the defendant and her fraudulent grantees had conveyed their interest to one Maxwell in trust to pay the debts of the defendant and any individual indebtedness of hers which had accrued since. Held, that Maxwell was not entitled to the proceeds of the real estate in the hands of the receiver as against Clark.
    2. Same—Judgment, when a lien.
    A judgment against a debtor who has previously made a fraudulent conveyance of premises, remains a lien thereon.
    8. Same—Effect of appointment of a receiver.
    Where a judgment creditor in such an action asks a receiver, and the appointment of a receiver of the premises previously appointed is extended over her action, she cannot thereafter proceed to sell the land by execution, and the title of a purchaser from the receiver upon a prior sale is good; but where the surplus moneys in his hands are to stand as real estate, she is entitled to be paid from them.
    4. Same—Partnership—Individual property. ,
    A member of a firm may appropriate individual property to pay firm debts, and where a creditor has acquired a lien thereon at law it will be respected in equity.
    Appeal from order denying defendants’ motion to compel a receiver' to pay to a trustee the surplus moneys arising on a sale of CStiltC
    PY G. Maxwell {P. J. Lewis, of counsel), for app’lts; O. S. Nisbet {J. H. Hanson, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from an order refusing to compel a receiver to pay over to the petitioner, Maxwell, the surplus money arising on a sale of real estate.

The action was commenced August 9, 1889, by plaintiff as a judgment creditor of Maria MacDonald, to set aside fraudulent conveyances of real estate made by her to defendant Carrie MacDonald and by Carrie MacDonald to Lillie S. Stevenson.' Plaintiff recovered May 2, 1890, and j udgment was entered appointing Putnam receiver to sell the real estate. He did so October 25, 1890; and alter paying plaintiff’s judgment with costs and fees there remained in his hands $3,023.17.

October 3, 1890, Maria MacDonald, the fraudulent grantor, and Oarrie MacDonald and Lillie S. Stevenson, the fraudulent grantees, executed to one Maxwell, the-present petitioner, a conveyance of their interest in the real estate and in said surplus in trust for the purpose of paying certain individual debts of Maria MacDonald or any further individual indebtedness of said Maria since incurred.

On the 25th of March, 1890, Lydia A. Clark, a judgment creditor of Maria MacDonald, commenced an action for the same purpose as this action, viz.: to set aside as fraudulent these same conveyances of real estate made by Maria MacDonald to said Carrie MacDonald and by her to said Stevenson. Said Clark also commenced a similar action on another judgment, May 9, 1890.

November 6, 1890, the receivership of said Putnam was by ■order of the court extended to the two actions of said Clark.

A judgment in the second Clark action was granted February 3, 1891, deciding the said conveyances to be fraudulent, reciting the Harriet MacDonald action and its result, and reciting the sale by the receiver aforesaid and the balance aforesaid in his hands, and reciting the extension of the receivership to this Clark action, granting the usual decree setting aside the conveyances and further deciding that the said surplus in the hands of the receiver should stand in the place of the land thus fraudulently conveyed, and directing the receiver to apply the same to the said judgment of said Clark.

The motion by the petitioner Maxwell was made February 3, 1891, was opposed by said Clark, and was denied with ten dollars costs.

It will thus be seen that the conveyances to the petitioner were made by the fraudulent grantor and grantees pending the Clark action, and that the petitioner is not a bona fide holder for value. Further, he does not allege that he received the conveyance without notice of the Clark action. A notice of the pendency of the MacDonald action was duly filed at its commencement.

We are not disposed to adopt the views stated by the petitioner on the authority of Booth v. Wilson. 26 St. Rep., 177, viz.: that a judgment entered against a debtor who has previously made a conveyance of land with intent to defraud creditors is not a lien on the land. In Chautauqua Co. Bank v. Risley, 19 N. Y., 369, where the subject of enforcing judgments against fraudulently conveyed property was fully considered, it is said, at page 375, that the creditor “ may, if he prefer, stand upon his lien, and'the means which the law has given him of enforcing it. If his debtor has made a prior fraudulent conveyance, he may nevertheless sell upon his execution, and the purchaser will have the right and will take the risk of impeaching such conveyances.”

The same doctrine is recognized in White's Bank of Buffalo v. Farthing, 101 N. Y., 344; 1 St. Rep., 15, where it is said: “ The several judgments became liens on lands fraudulently conveyed by Matilda Farthing, the judgment debtor, in the order of their docketing, and they could have been sold on executions issued on the judgments.” It is not necessary to cite other authorities.

That case further says that if the judgment in an action brought to set aside the fraudulent conveyance appoints a receiver and directs a conveyance to him, a purchaser under the receiver’s sale will take title as of the time of the debtor’s conveyance to the-receiver, subject, however, to judgments in favor of others than the plaintiff.

How it was held in the Chautauqua Co. Bank case that when the creditor, instead of merely setting aside the fraudulent conveyance, asked and procured the appointment of a receiver, he-practically abandoned his judgment lien for the remedy of a sale-by the receiver. As, therefore, Clark had the receivership extended to her action she cannot claim any longer that the sale of the receiver was subject to her lien by judgment, and that she could now proceed to sell the land by execution issued on her original judgment and thus deprive the purchaser under the receiver’s sale of a good title. This, it would seem under the White’s Bank case, she might otherwise have done. But the judgment which set aside the fraudulent conveyances specially puts the surplus in the receiver’s hand in the place of the land. We see, therefore, no reason upon the facts already stated why Clark should not be paid her judgment out of the surplus in the receiver’s hands as directed by the judgment in her second action..

The petitioner presents another point He states that the judgment was originally recovered by Clark against Maria MacDonald and one L C. Shuler upon an indebtedness of I. C. Shuler & Co., a firm of which Maria MacDonald was a partner. He states also that Maria MacDonald has no property out of which her individual debts can be paid except such surplus. He urges, therefore, that equitably partnership property should pay partnership debts; and individual, individual.

It is true that the partnership property of A. and B. cannot right- • fully be applied to pay the individual debt of A.; for the simple-reason that B: does not owe that debt, and therefore it is not just to use B.’s property to pay A.’s debt But on the other hand A does owe the partnership debt of A. and B. A.’s partnership debt is regarded in equity as both joint and several. Matter of Gray, 111 N. Y., 404; 19 St. Rep., 147. And the petitioner is making an application to the equity of the court. The court of equity • does not interfere with a priority acquired at law. Meech v. Allen, 17 N. Y., 301. An individual member may appropriate his property to the payment of debts of the firm. Royer Wheel Co. v. Fielding, 101 N. Y., 504.

How in this case Clark recovered a judgment April 25, 1890, against Maria MacDonald and I. C. Shuler, and docketed the same. That judgment thereupon became a legal lien on Maria MacDonald’s real estate then standing in her name. A sale of such real estate under execution upon that judgment would have given a. good title. Maria had, however, before this date, fraudulently transferred, her real estate. That transfer was void as to Clark, and we have seen by the cases cited that Clark might have still proceeded to sell under execution. She took an affirmative action to set aside the fraudulent transfers. Before judgment the land had been sold under the MacDonald action. Her lien was transferred to the proceeds in the hands of the court, so as not to encumber the title of the purchaser at the receiver’s sale. She is still entitled to the benefit of the lien which she acquired by docketing her judgment and by the subsequent action. To hold otherwise would be to deprive her of the lien which she lawfully acquired by her original judgment Furthermore, 'Maria MacDonald has no interest in the land which she fraudulently conveyed. So that the petitioner’s claim is that the fraudulent grantees, whose conveyances are void as to Clark, may deprive her of the benefit of her judgment under a pretense of protecting indebtedness of their fraudulent grantors “ since incurred.”

We have examined the question as if the petitioner’s title was unquestionable. He describes it as a “ trust for the purpose of paying individual indebtedness of Maria.” He does not state that it is a trust to sell Furthermore, a conveyance made by a fraudulent grantor and grantees, just at the end of litigation "brought to set aside their fraudulent acts, and made for the purpose of paying indebtedness “ since incurred ” by the fraudulent grantor, has the appearance of being a continuance of the attempt to keep the debtor’s property from the reach of the vigilant creditors.

Order affirmed, with ten dollars costs and printing disbursements.

Mayham and Kellogg, JJ., concur.


text:
    Wallace B. Rowe, Resp’t, v. Isaac H. Lent, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Physicians—Malpractice—Dbureb of skill.
    A physician or surgeon is bound to exercise reasonable skill and care in ' the treatment of a patient, and whether he has done so in a given case is a question for the jury.
    Appeal from a judgment entered upon the verdict of a jury at the Columbia circuit and from an order made by the trial justice denying a motion for a new trial upon the minutes.

      Gardenier & Barrett, for app’lt; H. W. McClellan, for resp’t.
   Mayham, J.

This action was prosecuted by the plaintiff to recover damage alleged to have been sustained by him by reason of the alleged negligence and want of skill of the defendant as a surgeon in reducing a dislocation of the plaintiff’s shoulder.

In January, 1889, the plaintiff was thrown from a wagon upon the ground and dislocated his right shoulder, and the defendant, who was plaintiff’s family physician, was called to reduce the dislocation. After considerable effort and with some difficulty the defendant succeeded, as he claimed, and still claims, in reducing the dislocation; and from that time-the defendant attended upon and treated the plaintiff for the injury, giving directions as to the manner of caring for the shoulder and arm,, and frequently and daily visited and examined the plaintiff until the 24th of July, when he found, as he claimed and still insists, that the shoulder was in its normal condition and a cure-had been effected. The evidence does not disclose that the defendant treated the plaintiff after the 24th of July, although he saw the plaintiff frequently and examined his shoulder until plaintiff left, about the 14th of August, and during that interval the evidence tends to show that plaintiff attended to his usual business; but there is some non-professional evidence that the right shoulder did not look like the left, but some of the expert testimony tended to show that that difference in appearance might, exist even if the dislocation had been properly reduced.

During the time defendant regularly treated the plaintiff he made repeated statements that the shoulder was getting along nicely, and after the plaintiff left home he went to the sea shore- and took ocean baths. On the 13th of August plaintiff visited New York city, and the next day was examined at the Chambers Street Hospital,- when it was ascertained that the shoulder was-still dislocated, and an unsuccessful attempt was made by the surgeon in charge of that institution to reduce such dislocation. The theory of the plaintiff on the trial was that the dislocation had never been reduced by the defendant, and there was evidence on the trial given by expert witnesses tending to support that-theory, upon which, however, there was some conflict in the expert, testimony. It seemed to be conceded by all the medical testimony that at the time of the examination at the hospital in New York the shoulder was dislocated and that the injury still continues- and is permanent

Whether the dislocation had been reduced and whether the-defendant gave proper directions to the patient after he claimed to have reduced the same, and exercised the requisite skill and care-in the treatment of this injury, was the subject of inquiry and investigation by the testimony given on the trial upon which there-was some conflict, which we think was properly submitted to the jury for their determination.

The law imposes upon a physician and surgeon in the practice-of physic and surgery the duty of being reasonably skilled in his-profession and the exercise of care and prudence in the application of that skill, and if he be wanting in either to the injury of his patient whom he undertakes to treat he is liable for damages.

The question in each case of this character is whether the defendant exercised reasonable care and diligence with the ordinary skill required in the practice of his profession. In Carpenter v. Blalce, 10 Hun, 358, the rule was laid down thus, “ One who offers-himself for employment in a professional capacity undertakes first, that he possesses that reasonable degree of learning and skill which is ordinarily possessed by professors, of the same art or science and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in such business. Second, that he will use reasonable and ordinary care- and diligence in the exercise of his skill and the application of his-knowledge to accomplish the purpose for which he is employed. Third, to use his best judgment in the exertion of his skill and the application of his diligence.”

The test, however, seems to be, whether in the case on trial the requisite skill, care and diligence were employed, and not whether the practitioner is reputed to possess such skill. But the surgeon is not necessarily chargeable with want of the requisite professional skill or negligence and want of care, simply because he does not succeed in accomplishing the desired result. Human skill cannot relieve all the infirmities, ills or injuries, to which mankind are subject, and the only test, therefore, that can be applied is, whether in a given case the surgeon has exercised reasonable skill and attention in his treatment of the patient who has placed himself under his care, and whom the latter has undertaken to treat As we have seen in this case, that question was before the jury upon evidence somewhat conflicting and the whole -case was fully and fairly left to them by the charge of the trial judge in an able and impartial manner, to which no exception was taken by the counsel for the defendant, and the jury upon this conflicting evidence found in favor of the plaintiff. While perhaps they might, upon this evidence, have found either for the plaintiff or defendant, there is sufficient evidence in support of their conclusion to uphold the verdict and the court on appeal cannot say their verdict was either against the evidence or unsupported thereby.

That being a clear question of fact proper fat the determination of the jury, it was no error for the trial court to refuse to nonsuit on the motion of the defendant or to direct a verdict for the defendant.

The only remaining question is, whether on the trial the court erred in receiving or rejecting evidence. The only question raised upon this appeal by the appellant is as to the ruling of the judge striking out an answer to a question put to Dr. Yanderveer on his cross-examination. The question was a hypothetical one and objected to by the plaintiff on the ground that it assumed a state of facts not proved. It was answered, and the answer was stricken out on the plaintiff’s motion. It is unnecessary to inquire whether the objection was, or was not, well taken, as there was no exception taken to the ruling, as appears from the case. We see, therefore, no error in the receipt or exclusion of evidence for which the judgment can be reversed. ■

Judgment affirmed, with costs.

Learned, P. J., and Kellogg, J., concur.


text:
    Albert H. Sweny, Resp’t, v. John N. Peaslee et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Mortgage—Guaranty—Consideration—Forbearance.
    An extension of the time of payment of a prior mortgage, the foreclosure of which is threatened by the holder, is a good consideration for a guaranty of said mortgage by the owner of the fee.

      2. Same—Usury—Additional security.
    Where a mortgage is valid in its inception, the subsequent giving of additional security for its payment is not usury.
    8. Usury—Transfer of a loan.
    The transfer of a demand from one creditor to another is not a loan within the usury laws.

      4. Same—Burden of proof. .
    The defense of usury is an affirmative one, and must be clearly proved; it cannot arise from surmise or inference.
    Appeal from judgment of foreclosure and sale.

      Oady <& Hoysradt, for app’lts; Marcus T. Hun, for resp’t.
   Mayham, J.

This is an appeal from a judgment entered upon the report of a referee for the foreclosure of two mortgages, one given by Horace W. Peaslee and wife to John J. and Sylvester Yan Yalkenburgh, collateral to a bond made by Horace J. Peas-lee for $30,000, ten thousand of which was payable to John J. Yan Yalkenburgh and twenty thousand of which was payable to Sylvester Yan Yalkenburgh. The interest of Sylvester Yan Yalkenburgh in this bond and mortgage was transferred to Albert H. Sweny and that of John J. Yan Yalkenburgh was transferred to James Mix who owned the same at the time of the commencement of this action. The other mortgage was given by John N. Peaslee and wife to Albert H. Sweny and James Mix as collateral to the bond of the mortgagors dated February 16, 1886, in and by which the obligors agreed to pay the sum of $30,000 in the following manner. “The sum of $10,000 and interest thereon to be paid to James.Mix, and the sum of $20,000 and interest thereon to be paid to Albert H. Sweny in accordance with the -provisions of a mortgage given by Horace W. Peaslee and wife to John J. and Sylvester Yan Yalkenburgh, recorded in the Columbia county clerk’s office in book No. 25 of mortgages on page 561 as extended. ”

The case shows that prior to the date of the last mentioned mortgage .the execution of the last will of Sylvester Yan Yalkenburgh, deceased, had transferred the $20,000 interest of his testator in the Horace W. Peaslee mortgage to Emma J. Housman, who duly transferred the same to Albert H. Sweny, this plaintiff, and .that the executor of John J. Yan Yalkenburgh transferred his interest in Horace W. Peaslee’s mortgage to James Mix, and the entire interest in the Horace W. Peaslee bond and mortgage became vested in this plaintiff and James Mix.

On the 13th of January, 1885, Horace W. Peaslee, the mortgagor, executed and delivered to the defendant, John N. Peaslee, a deed of certain lands at Malden Bridge, with all dams, mills, water privileges and buildings thereon, together with the fixtures, machinery, tools and materials thereon. This conveyance was as to the part of the land covered by the Yan Yalkenburgh mortgage of $30,000 subject to the same, but it embraced lands not covered by that mortgage, and in explicit terms conveyed property not in express terms embraced in the mortgage. Prior to the sale by Emma Housman of this mortgage to this plaintiff she had transferred the same, as collateral to a loan of $15,000, to the Kinderhook National Bank, and the loan for which this mortgage was transferred being past due, the bank threatened a foreclosure. While the interest of John FT.- Beaslee under his deed was thus imperilled, he called on the plaintiff and James Mix, and the interview resulted in the opening of negotiations with Emma Housman, which resulted in an assignment of her $20,000 interest in the Horace W. Beaslee mortgage to this plaintiff for $15,000, and the $10,000 interest held by the executor of John J. Yan Yalkenburgh to James Mix.

The evidence discloses and the referee finds in substance that during the negotiations for the foreclosure of Mrs. Housman’s interest in the mortgage for $15,000, plaintiff was to hold it as a lien and mortgage for $20,000, its face value, and the interest should be paid him on that sum. The assignment from Housman to plaintiff bears date February 19, 1886. On the 16th of February, 1886, the plaintiff and defendant, John FI. Beaslee, entered into a written agreement in which the Horace W. Beaslee mortgage is described, and it is noticed that the plaintiff is the owner thereof to the amount of $20,000, and that there is due and payable that amount thereon with interest from the 16th day of February, 1886, and to the collection of which there is no defense. This agreement provides for the extension of the time of the Horace W. Beaslee mortgage upon conditions specified in the contract until the 1st day of May, 1892. On the same day John FT. Beaslee and wife executed their bond to Albert H. Sweny and James Mix conditioned for the payment of $30,000, $10,000 and interest to Mix, and $20,000 and interest to Sweny in accordance with the provisions of a mortgage given by Horace W. Beaslee and wife to John J. Yan Yalkenburgh and Sylvester Yan Yalkenburgh, and as collateral thereto gave their mortgage covering the property embraced in the deed from Horace W. Beaslee to John N. Beaslee to which we have referred.

Sufficient facts have been stated to raise the question involved in this appeal, viz.: Whether the last described mortgage was collateral to the Horace W. Beaslee mortgage and in consideration of the agreement for an extension of the time of payment thereon, or whether it was given in consideration of, and as security for, the $15,000 paid by Albert FT. Sweny, the plaintiff, and the $10,000 as an original loan to the defendant John FT. Beaslee, and used by him in extinguishing the Horace W. Beaslee mortgage.

If this was a purchase of the original Horace W. Beaslee mortgage for less than its face value, it was a valid transaction, and the purchaser was guilty of neither an illegal or immoral act in enforcing the original security for its face value and interest

If, on the contrary, it was a loan of $25,000 to. the defendant John FT. Beaslee, taking back an ■ agreement for the payment of $30,000 and interest, it would in that case be an usurious agreement and void, and no recovery could be had upon it.

The referee finds that no loan was made by Albert H. Sweny "to John FT. Beaslee, He further finds that John FT. Beaslee accepted the position of guarantor of the mortgage given by-Horace W. Peaslee in the hands of the plaintiff, and that the mortgage given by him and his wife is collateral to the indebtedness created by the Horace W. Peaslee bond and mortgage, and that that was never satisfied or extinguished.

These findings and conclusions of the referee are, we think, fully sustained by the evidence in this case. John N. Peaslee, being the owner of the fee of this land charged with the mortgage given by Horace W., had a direct interest in procuring an extension of the payment of this outstanding mortgage, and that extension having been granted at his instance and for his benefit at the time of the purchase of the mortgage by the plaintiff furnished a sufficient consideration for his assumption of the payment of the bond and mortgage by him. In Paul v. Stevens, 57 Hun, 173; 32 St. Rep., 851, Daniels, J., says : “It has been repeatedly held that the forbearance or extension of the time for the payment of a debt is a good consideration for the making and delivery of an obligation of this description ” (in that case a promissory note). Nor can such an agreement be declared usurious. The original obligation created by this bond and mortgage to pay this $20,000 being valid, the giving of additional security after the creation of the debt for its payment is not usury, and the bond and mortgage given by John N. Peaslee and -wife as such additional security is valid and not usurious.

In Crane v. Price, 35 N. Y., 498, it was held that a mortgage given to the plaintiff by the defendant for demands which the defendant was liable to pay, and taking a mortgage of the defendant for the amount of the demands so purchased was a valid transaction, and that when the demands were purchased by the plaintiff at the request of the defendant, the court say: “ It is a misnomer to speak of the transfer of a demand by one creditor to another as a loan of money to the debtor within the intent of the usury laws.” If there was no loan and no corrupt agreement for forbearance there can be no usury; and the grantee of the mortgagor who assumes the payment of the mortgage valid in its inception, cannot predicate usury upon the original mortgage, or upon a valid agreement between him and the assignor for an extension of the time of payment. Nichols v. Fearson, 7 Peters, 103, 109; Sullivan Savings Ins. Co. v. Copeland, 71 Iowa, 67. In More v. Howland, 4 Den., 264, it was held that the bona fide sale of one’s credit by way of guaranty, or by making a note for another’s accommodation, though for a compensation exceeding seven percent, is not usurious if the transaction be unconnected with a loan between the parties.”

Nor do we think that the arrangement between John N. Peas-lee and the plaintiff made a new contract of the old Horace W. Peaslee mortgage so as to let into that agreement any taint of usury. The case of Houseman v. Bodine, 122 N. Y., 158; 33 St. Rep.) 332, cited by the learned counsel for the appellant, does not go to that extent. The defense of usury, involving a crime, cannot be established by surmise and conjecture, or by inference entirely uncertain. Baldwin v. Doying, 114 N. Y., 452, 457; 23 St. Rep., 759; Stillman v. Northrup, 109 N. Y., 478; 16 St. Rep., 417.

The defense of usury being an affirmative proposition to be established by the defendant, he assumes the burden of establishing it by affirmative proof, as all the presumptions are in favor of the legality of the contract, and if upon the whole case the evidence is as consistent with the absence as with the presence of usury the party alleging the usury must fail. Morrison v. Verdinal, 53 Hun, 63, 66; 24 St. Rep., 194; Booth v. Swezey, 8 N. Y., 276; Smith v. Marvin, 27 N. Y, 137. Even when the instrument admits of two constructions, one of which would render it operative and the other void, the former would be adopted. Marvin v. Feeter, 8 Wend., 533.

Having reached a conclusion adverse to the contention of the appellant on the question of usury, it becomes unnecessary to discuss the other questions raised by the appellant on this appeal.

On the whole case we see no error committed by the referee for which the j udgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., and Kellogg, J., concur.


author: Putnam, J.

text:
    John Moore, App’lt, v. The New York Central & Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Negligence—Duty of foot passenger to look at a crossing.
    In an action against a railroad corporation for negligence, the plaintiff testified that he ,‘toad with a friend about fifteen feet from the track when a train passed; that from that point he could see an approaching train 200 feet away; that he did not look again, walked onto the track and was struck by another train. Held, that he could not recover, and that he was not relieved from the duty of looking by a belief that the company, by its flag-man, would give reasonable notice of the approach of a train.
    Appeal from judgment entered upon a nonsuit at circuit. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant

      F. J. Parmenter (R. A. Parmenter, of counsel), for app’lt; Frank Loomis (Levi Smith and Charles F. Patterson, of counsel), for resp’t.
   Putnam, J.

On the trial, at the close of the plaintiff’s evidence, defendant moved for a nonsuit on the ground that the testimony failed to establish plaintiff’s freedom from contributory negligence. The motion was granted by the court, and from the judgment rendered on such ruling this appeal is taken.

Plaintiff, while walking with a friend across the defendant’s track on a highway in the city of Troy, was struck by one of defendant’s engines coming from the south and injured. The evidence clearly shows that at a point about fifteen feet from the track, where plaintiff stood before he was injured, and from such point to the track, there was an unobstructed view southerly down the track for thirty or forty yards or more, and that the plaintiff at this place (fifteen feet from the track) looked for approaching trains, walking from thence onto the track without again looking.

We think that on such evidence the holding of the trial judge was correct. The plaintiff, if he looked and listened, must have seen the approaching train, and of course, if he did, it was negligence to go upon the track. If he did not look and listen, as he himself swore, he was clearly negligent Plaintiff’s own evidence establishes his contributory negligence. In many cases nonsuits have been properly directed by the trial judge on the ground that the evidence on the part of the plaintiff failed to establish freedom from negligence of the party injured. But in this case the plaintiff himself testifies to the facts showing his own negligence. He states that he stood with his friend about fifteen feet from the track when the train passed, then looked for an approaching train, and started to cross it. He did not look again; he did not think of looking. In other words he walked for fifteen feet where he could see down the track about 200 feet on to it, in front of an approaching train, which he must have seen had he looked. Prom the place where he started, fifteen feet from the track, there were no obstructions, no cars on the track, not anything to prevent his seeing an approaching train, or to divert his attention. The evidence of the plaintiff was not contradicted, and, we think, compelled the trial judge to grant the motion for nonsuit. Daniels v. S. I. R. T. Co., 125 N. Y., 410; 35 St. Rep., 435; Rodrian v. N. Y., N. H. & Hartford R. R. Co., 125 N. Y., 526; 35 St. Rep., 814; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y., 369; 11 St. Rep., 169; Whalen v. N. Y. C. & H. R. R. R. Co., 40 St. Rep., 566; Fleissner v. N. Y. C. & H. R. R. R. Co., id., 711; Nolan v. N. Y. C. & II. R. R. R. Co., id., 848.

The evidence does not disclose any act of the flagman which excused plaintiff from the duty of looking down the track before he stepped upon it. 4

The Rodrian case, above cited, and many other cases, hold that a pedestrian is not relieved of the duty of looking for approaching trains before he steps on the track in reliance that the railroad company will do its duty, and give reasonable notice of the approach of a train.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Pee Curiam.

text:
    John B. Leavitt, Resp’t, v. Lewis S. Chase, App’lt.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Attorneys—Compensation.
    Upon the trial of an action to recover for legal services defendant claimed that the suits in question were undertaken by plaintiff under a special agreement made on behalf of the plaintiff by his brother H. L., who he also claimed was plaintiff’s partner in the" matter, by which his fee was to be contingent upon a recovery. Plaintiff denied this, but admitted that defendant proposed this to him, but alleged that he informed him that he was disinclined to make such arrangement. Held, that the referee’s decision upon the facts was final.

      3. Same—Partnership.
    The fact that plaintiff, a lawyer, was in partnership with his brother, not an attorney, in the business furnished by defendant, collections for advertising, did not authorize the brother to make contracts for plaintiff’s services in other matters.
    Appeal from judgment of the New York superior court, general term," affirming judgment in favor of plaintiif entered on resport of referee.

      Robert G. Ingersoll, for app’lt; Austen G. Fox, for resp’t.

       Affirming 38 St. Rep., 356.

   Pee Curiam.

The main items in the recovery in this case are for services rendered by the plaintiif .as attorney for the defendant in what are called the “ Bennett ” case and the case of the “ Second Avenue Bailroad,” which were suits brought by the defendant. It is admitted in the answer that the services of the plaintiff in these litigations were not rendered under either the agreement of .October 2, 1880, or that of October 1, 1882, and did not relate to collections mentioned in these agreements.

But it is claimed by the defendant that these suits were undertaken by the plaintiff under a special agreement made ‘between the plaintiff and the defendant, made in behalf of the plaintiff by his brother, H. H. Leavitt, by which his fee was to be contingent upon a recovery in the actions. The plaintiff denied that his brother was authorized to enter into any agreement for his services and alleged that the defendant not only knew that he had no such authority, but that he dealt with the plaintiff directly as principal during the course of the litigations. The plaintiff admits that the defendant proposed to him that he should undertake and conduct these litigations in consideration of a contingent fee, but claims that he was disinclined to make such an agreement and so informed the defendant, and that no agreement was made between them on the subject

The referee found for the plaintiff on the issue. The evidence in behalf of the respective parties upon the point is irreconcilable, and the referee’s decision on the fact is final here. The defendant claims that the plaintiff and his brother were partners in respect to business undertaken by the plaintiff for the defendant, and that the arrangement by H. H. Leavitt was binding upon the plaintiff upon the principle of agency. The counsel for the- defendant is mistaken in his assumption that the referee proceeded upon the ground that no. partnership could exist between the plaintiff, a lawyer, and H. H. Leavitt, who was not at the time a lawyer, in respect to the conduct of legal business. The brothers were jointly interested in the business furnished by the defendant, in collections for advertising. But this did not authorize H. H. Leavitt to bind his brother by contracts for the latter’s services in other matters. Whether his contract did bind him would depend upon actual authority, or upon the plaintiff’s subsequent ratification of a contract made by his brother in his behalf without authority in the first instance.

There is evidence sustaining the referee’s conclusion that H. H. Leavitt had no authority in fact to contract for his brother’s services in the matters referred to, and that the defendant knew it and understood that no contract for a contingent fee had been made between him and the plaintiff.

Other items allowed by the referee were for services rendered prior to October 1, 1883, not within the scope of the agreements of 1880 and 1882, and items for services rendered after October 1, 1883, in new cases, at which date the contract of .October 1, 1882, was terminated by written notice given by the plaintiff to the defendant.

We perceive no legal error in the allowances made in these two classes of cases. In respect to the services in new cases after October 1, 1883, it is'claimed by the defendant that the agreement of October 1, 1882, was reinstated, and that the parties proceeded as though that contract had not been terminated. There is some - evidence both in the conduct of the plaintiff and in the direct testimony for the defendant in support of this claim, but upon the whole evidence it was a question of fact upon which the referee’s finding is conclusive.

We think there is no error of law in the case, and the judgment must therefore be affirmed.

Judgment affirmed, with costs.

All concur.


author: Earl, J.

text:
    William Nelson, Jr., App’lt, v. The Mayor, etc., of New York, Resp’t.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Municipal corporations—Contract.
    The advertisement for bids upon public work for defendant specified the materials to be furnished, but reserved the right to the commissioners to increase or diminish the gross quantity or the quantity of each kind to an amount not exceeding 30% of the gross amount of the contract. Plaintiffs bid was $55,000 less-than his competitor. There were forty-three different kinds of pipes, aud for each the competitors named a price, and under the contract the twenty-six of these were entirely omitted, and as to all of these plaintiff’s bid was lower, and in no case was there an entire omission where plaintiff’s bid was higher. So that the result was that plaintiff’s work really amounted to $70,000 more than the same materials were bid for by his competitor. In an action brought by plaintiff for balance due upon his contract, Feld, that the evidence of fraud and collusion in the making and execution of the contract was sufficient to sustain a verdict for the city.
    2. Same.
    The fact that plaintiff’s accepted bid was $3.50 a piece for invert blocks, although he was at the time offering them for $2.60 in different parts of the country, and his competitor’s bid was sixty cents, and that the specifications required only 2,000 blocks, when the city officials knew the city would need much more, are significant facts upon the question of fraud.
    3. Same.
    It is not incumbent upon the defendant to show precisely how or when the fraud was concocted, or what particular city officials were implicated in it.
    4. Same—Waiver by city.
    As the city officials cannot bind it originally by such a fraudulent contract. they cannot bind it by subsequently in any manner ratifying it.

      ■5. Same.
    The plaintiff cannot claim that he should be paid the value of the materials as he did not on the trial make such claim, and must recover if at all upon the contract.
    ■6. Same—Boakd of audit.
    The board of audit audited plaintiff’s claim at $55,327, which he claims was 70;5 of the sum due: Held, that this did not have the effect of a judgment, and did nothing but fix the amount of the claim.
    '7. Same—Evidence—Books of account.
    The evidence on the part of the city as to furnishing of materials by plaintiff was mainly that of two employees of the plaintiff, who kept a record of the deliveries in books kept by them. They testified that the entries were made at the time, that they were correct, and that they had no independent memory of the items. Held, that this laid the foundation for the introduction of the books in evidence.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for defendant, entered on verdict of a jury.

      Louis Marshall, for app’lt; D. J. Bean, for resp’t

       Affirming 23 St. Rep., 518.

   Earl, J.

This action was brought in October, 1873, to recover the balance claimed by the plaintiff to be due to him for vitrified salt glazed stone ware, drain and sewer pipe and invert blocks delivered by him to the city in the years 1871 and 1872, under a •contract with the city made in 1871. ' He has been paid seventy per cent, of the contract price for the materials delivered, and the claim he now makes is for the remaining thirty per cent, retained by the terms of the contract, to wit; the sum of $54,550.00 and the interest thereon from December 12, 1872.

The action has been twice tried. On the first trial the complaint was dismissed on the ground that the contract under which the plaintiff claimed was, under the circumstances appearing, not authorized by law. The judgment for the defendant was affirmed at the general term, 5 Hun, 190, but upon appeal to this court it was reversed. 63 N. Y., 535. Upon the second trial no question was made that the contract was legal in form and was authorized by law. Nor was any question made that all the materials for which the plaintiff claimed payment had been delivered.

The only defense made to his claim was that the contract under which the materials had been delivered was procured by him through fraud and collusion with some of the officers and agents •of the city, and that, therefore, it was void and not binding upon the city. All the oral evidence upon the trial was introduced upon this defense, and no other matter was submitted to the jury. Upon the defense of fraud the jury found a verdict in favor of the defendant, upon which judgment was entered. That judgment has been assailed by the learned counsel for the plaintiff with much elaboration and ability, and yet we do not think he- has been successful in pointing out any error for which it should be reversed.

The evidence of fraud and collusion in the making and execution of the contract was sufficient to sustain the verdict. The department of public works advertised for proposals to furnish the pipes and invert blocks. The advertisement was first published on the 8th day of April, 1871, and by its terms the letting of the contract took place on .the 18th day of the same month. The advertisement specified the size, quantity and quality of the materials to be furnished, and among the specifications was the following: “The Commissioner of Public Works reserves the right to increase or diminish the gross quantity, or the quantity of each kind, to an amount not exceeding thirty per cent of the gross amount of contract, but the time of delivery, however, te be extended or diminished in the ratio of the increase or diminution,” and this clause was embodied in the contract. If every bidder for the contract put fair, honest, bona fide prices upon each kind of pipe to be furnished, this clause could work no mischief or injustice. But it gave opportunity, just such an opportunity as could be desired by a person who wished in collusion with the officers of the department of public works to put in what is called] an unbalanced bid, to perpetrate a fraud upon the city. Ho one not in fraudulent complicity with the city officials could, with this, clause in operation, safely put in an unbalanced bid; if it bid a very low price for some of the pipes and a very high price for others,, the city officials might require him to furnish a large quantity of pipes which he had offered to furnish for much less than their value, and very little or none of those which he had offered to furnish for more ■ than their value, and thus he might be financially ruined, unless his pecuniary resources were very great But by increasing the quantity of pipes which the bidder had agreed to furnish for a price largely in excess of their value, the city officials could make the fortune of the bidder. It is thus clear that no man of prudence could, under such circumstances, dare to put in an unbalanced bid, and thus place his fortune at the mercy of the city officials.

If this clause had simply permitted the city officials to increase- or diminish any kind of pipe only thirty per cent, the facilities, for fraud would not have been so great. But, with rare cunning,, it was so framed that any one kind of pipe could be increased by thirty per cent of the gross amount of the whole contract, and thus an enormous increase of the kind of pipe most profitable to-the contractor was made possible.

There was another clause in the proposals, harmless if honesty was the purpose in the making and performance of the contract,, but well calculated to favor a contractor who was in complicity with city officials, and that provided that the contractor should “ commence the delivery of said pipe and appurtenances at such time and in such manner and proportion as shall be designated in said agreement hereunto annexed, and complete the same within ninety days next thereafter.”

Thus the way was prepared and the fraudulent scheme, as the jury must have found, was concocted.

How what happened ? There were two bidders for the contract; Mr. McMann and the plaintiff. The prices bid by the plaintiff on many kinds of pipe were much below and on many kinds much above the prices of McMann, and the result' was that for the estimated quantities of pipes and invert blocks contained in the proposáis at the prices bid respectively by the two bidders, the plaintiff’s bid was $55,454.50 lower than his competitor’s, and the .contract was therefore awarded to him. What further happened ? In the advertised proposals there were forty-three different quantities and kinds of pipes mentioned, and for each of these the bidders named a price, and under the clause above quoted twenty-six of these kinds were entirely omitted, none having been required or furnished, and in every case where none was furnished the bid of the plaintiff was lower than that of McMann, and in no case was there an entire omission of pipe where the price of the plaintiff was greater than that of McMann. And in the remaining seventeen kinds of pipe, where plaintiff’s prices were higher than those of McMann, the quantities were in all but four trifling exceptions largely increased. The result was that, measuring by the prices bid, the aggregate contract price of the pipes and inverse blocks delivered by the plaintiff under the contract was $70,947.03 more than the same materials would have cost if the contract had been awarded to McMann upon the prices bid by him. It is difficult to account' for these remarkable results by any theory of chance or accident, and it is hard to disbelieve that they were not due to a fraudulent scheme previously devised.

There is another significant fact. The specifications as advertised required 2,000 invert blocks, and for these the plaintiff bid $3.50 a piece, although he was at the time offering to sell them in different parts of the country for $2.60, with at least ten per cent discount, and McMann’s bid for them was only sixty cents a piece; and the quantity of these blocks required and actually delivered was 20,127, an increase of more than ten fold; and yet, at the same time when the department of public works advertised for bids for the 2,000 invert blocks, it advertised for proposals to construct sewers which required over 11,000, and these sewer contracts wore let at the same time as the contract for materials let to ■the plaintiff. This evidence tended to show that when the city officials inserted in the specifications for the materials 2,000 invert blocks they knew the city would need much more, and thus there was a fine opportunity for the operation of plaintiff’s unbalanced bid. This is not all. The evidence tends to show that for the first ¡payment made to the plaintiff under his contract the city officials gave him an estimate for a much larger quantity of materials delivered under his contract than he had actually delivered, and that thus he was enabled to obtain from the city several thousand dollars more than was at that time his due. By the terms of the letting, and of plaintiff’s contract, he was required to deliver all the materials in about one hundred days, and yet he was permitted to take many days in excess of that number.

It cannot, we think, be said that all these facts are equally consistent with honesty as with fraud. They seem to point unmistakably to fraud and collusion. It does not seem possible that such a contract could be so made and executed with honest and fair motives. The plaintiff introduced no evidence on the trial to parry or weaken the force of this evidence. He, knowing more of "the facts than any other living witness, did not even offer his own evidence to put an innocent face upon facts which bear such an ugly aspect. Fraud need not be proved by direct evidence. It is generally disguised and covered up and must be brought to light by the proof of circumstances not equally consistent with innocence. Here we cannot doubt that the evidence was sufficient to warrant the verdict- of the jury. Matter of Anderson, 109 N. Y., 554; 16 St., Rep., 168.

It was not incumbent upon the defendant to show precisely how or when the fraud was concocted, or what particular city officials were implicated in it It was enough to show that the contract, with whomsoever made, was the creature of fraud.

Thus, this contract was not in any proper sense, as required by the law, let to the lowest bidder, and being fraudulent and void,, it imposed no obligation upon the city.

But the plaintiff attempts to answer the charge of fraud in' three ways. (1) He says that the city waived the fraud and ratified the contract by receiving the materials delivered under tho contract, and thus accepting performance thereof. As matter of law, the city did none of these things. It could only act through its agents, and they could bind it only when acting for it within the boundaries prescribed by Jaw. As they could not bind it. originally by such a fraudulent contract, they could not bind it by subsequently, in any manner, ratifying it They could not-bind it either by making or ratifying a fraudulent contract. The city officials, in fraudulent complicity with the plaintiff, certainly could not ratify the contract, and the acts of honest officials in recognition* of the contract, while ignorant of the fraud, would not ratify it And further, no city official, like the comptroller,, or even the mayor, could ratify the contract who did' not have power to bind the city by such a contract; and no. contract could be made binding by ratification which could not at the time of the ratification be made. The law required such contracts to be let after advertisement to the lowest bidder. The letting of this-contract was merely a formal, not a real compliance with the law, and it was so affected with fraud that the city did not become-bound thereby. Bo officer of the city could thereafter make such a contract absolutely binding upon the city by ratification or otherwise, except in the form prescribed by law. But there is a further answer to this claim of ratification, and that is that, no such claim appears to have been made upon the trial, and the trial judge was not asked to rule upon such a claim,, or to charge the jury in reference thereto, and he did not submit, and was not requested to submit, the facts in reference thereto to the jury. The sole question of fact, submitted to the jury was that of fraud, and the judge in substance charged the jury that if they found the alleged fraud and collusion in the origin of the contract they must render their verdict for the defendant; but that if they found the contract was-honestly made, the plaintiff was entitled to recover; and to this; there was no exception; and thus the plaintiff cannot now complain that the case was given to the jury upon an erroneous view of the law. (2) It is said that the city has had the benefit of these materials, and therefore ought to pay for them. How much ought it to pay ? Certainly not the contract prices placed upon them by the plaintiff in his unbalanced, fraudulent bid. If the plaintiff claims he should be paid their value, the answer is that be did not upon the trial put forward such a claim. There he claimed to recover upon his cóntract, and he gave no evidence whatever of the value of the materials, and he furnished no basis whatever for any recovery by him of the value. On the contrary, the evidence tended to show that he had already been paid more than a fair value for the materials delivered by him. He had received, at least, $15,000 more than the materials were fairly worth, if their value be measured by the prices named in the bid of McMann; and it further appears that he was probably paid nearly the full value of the materials delivered by him, measuring their value by the prices for which he sold the same materials in the market to other purchasers. (3) He further says that the city has been deprived of the defense of fraud by the action of the board of audit, consisting of the comptroller, the commissioner of public works and the president of the department of public parks, created by the act, chapter 9 of the Laws of 1872. That board was authorized to audit claims against the city, and the plaintiff presented to them claims against the city amounting to the sum of $55,327.69, and they were audited and allowed for that sum and subsequently paid by the city. The plaintiff claims that that sum was seventy per cent of three bills, amounting to $79,039.35, for materials furnished under this contract, and that the remaining thirty per cent, $23,711.66 remains unpaid, and is part of the sum sought to be recovered in this action. It does not appear what documents, papers or proof were before the board. It is inferable that the three bills were before them. It does not appear what determination or adjudication they made. All the plaintiff claimed was $55,327.69, and that sum they audited and allowed, and so far as we know they made no other determination. The counsel for the plaintiff claims that the audit must have the same effect as a judgment rardered by a court, and hence that the contract must be deemed to be valid and free from fraud, and that the city is thereby estopped from denying its liability, for plaintiff’s entire claim. It is undoubtedly true that if the plaintiff had sued the city for the three bills and had recovered the amount audited in an action, there would have been a conclusive adjudication of the validity of the entire claim. But can a mero audit by a board simply clothed with the power to audit have such conclusive effect ? Our attention is called to no authority giving the audit such effect, and we are confident there is none. The law of 1872 provides for nothing akin to a regular judicial proceeding. It does not provide for the examination of witnesses, and there is none of the ordinary machinery of a court of justice. To give to the audit of such a board the far-reaching effect of a regular judgment would be both novel and mischievous. Such an audit when the auditors are riot fraudulently imposed on and act within their iurisdiction, is undoubtedly conclusive until in some way reversed as to the liability of the city for the amount audited, and it cannot be collaterally overruled or attacked. But it is conclusive for nothing more, and this is true of every audit made by county .supervisors and town boards of auditors. When the auditors honestly allow a claim, acting within their jurisdiction, and no fraud has been practiced upon them in procuring the allowance, the liability of the municipality is fixed, and the claim is no longer .subject to dispute. But the audit does nothing but fix the .amount of the claim. Simply that and nothing more. Then too the audit of this board may have proceeded upon the theory that there was at least the sum audited due the plaintiff for the materials delivered, and it cannot be known from this record that they meant to decide more, and they certainly had no authority to decide more, and ^the audit does hot establish that the plaintiff is entitled to the amount claimed in this action, or even the sum of $23,711.66 the balance now claimed upon the three bills presented. .So we think the trial judge did not err in his charge to the jury that they “had nothing to do with what the board of audit did.”

As before stated, the defendant gave evidence tending to show that when the plaintiff received his first payment under his contract he had not furnished all the materials certified for him by .the city officers, and hence that his payment was greater than he was then entitled to. The evidence on the part of the city upon this point was mainly that of two employees of the plaintiff who had charge of the deliveries of the materials to the city and who kept a record of the deliveries in books kept by them. They testified that the entries in the books were made at the time of the deliveries ; that they were correct, and that they had no independent memory of the items, and thus foundation was laid for the introduction of the books. It is now claimed that the accuracy of the books was not sufficiently proved, and that it was error to receive them in evidence. They were objected to on the part of the plaintiff on the following grounds : “ (1) That by the evidence ■of the defendant’s own witness they are not the books of the plaintiff. (2) Because the books contain entries of other matters besides the deliveries to the city. (3) That the evidence is immaterial, inasmuch as defendant’s counsel has already admitted that the plaintiff has delivered to the defendant all the pipe for which he claims to recover.” The trial judge overruled the ■objection, and admitted so much of the books in evidence as related to deliveries to the city. Wo other objections were made to the books at any stage of the trial, and clearly none of these were valid.

The defendant’s counsel also put in evidence statements made up from these books by one of the witnesses who had made most of the entries in them, showing the quantities of materials delivered as appeared from them, which statements also showed the quantities of materials in the bill of the plaintiff, which was claimed to be overestimated. These statements were intended to show by contrast that pláintiff’s first bill was inaccurate and ■greatly exaggerated. They were objected to by plaintiff’s counsel as incompetent, immaterial and irrelevant, and on no other ground. The counsel has made a most elaborate argument to show that it was error to receive these statements. It may be that when all the evidence is carefully analyzed they appear to be less weighty as evidence than claimed by the defendant, and probably they may be entitled to but little weight. But they were evidence for what they were worth. No defect in the proof relative to them was pointed out. Their accuracy seems to have been assumed. They had some tendency to sustain the allegation of the defendant that the first bill presented by the plaintiff under his contract was fraudulent, collusive, or very carelessly and recklessly made. The judge submitted this evidence to the jury with some very pertinent and significant remarks, to which no exception was taken on the part of the plaintiff. No claim whatever was made that there was not sufficient evidence upon this point for submission to the jury. There was, therefore, no error in the reception of these books and statements, and there is now certainly no valid ground of complaint as to them on the part of the plaintiff.

No other exceptions require attention, and our conclusion is-that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Finch, J.

text:
    The People, Resp’ts, v. James E. Minnaugh, App’lt.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Homicide—Evidence—Premeditation.
    Upon'a trial for murder the evidence fully established that the prisoner killed deceased with two shots from a pistol, one inflicting a mortal wound; that he acted from a motive of revenge aroused by a quarrel with deceased the night before, in which he was injured and mortified; that next morning he bought a pistol, giving a false reason for doing so, bought, the cartridges elsewhere, went to the saloon where he expected to find his adversary, and shot him, and ran away and hid. Held, that there was no room for doubt that the killing was intentional, premeditated and deliberate.
    3. Same—Insanity from intemperance.
    A wild look in the eyes, an unusual paleness, a restless movement about the room, a nervous trembling, and a surly and silent refusal to answer, are not sufficient to establish the defense of insanity resulting from the habitual and intemperate use of alcoholic stimulants, especially where defending acts at the time of the killing were those of a sober and rational man.
    3. Same—Reading of authority by judge.
    So long as the doctrine of law, stated by the court to the jury, is sound and applicable to the possible facts appearing, it makes no difference whether the trial judge uses his own language, or chooses to avail himself of the words of another, by reading from a reported case.
    Appeal irom judgment of the New York general sessions, convicting defendant of the crime of murder in the first degree.

      Joseph F. Moss, for app’lt; If. B. B. Stapler, for resp’ts.
   Finch, J.

The record discloses no ground for the reversal of this judgment, either upon the facts or the law. The evidence fully established that the prisoner killed the deceased with two-shots from a pistol, one of which inflicted a mortal wound ; that the defendant acted from a motive of revenge, aroused by a quarrel with, deceased the night before, in which the prisoner was more or less violently assaulted, and suffered not only some personal injury, but the mortification of defeat; that on the morning of the murder he purchased a pistol at one place, giving a false reason for the act, bought the necessary cartridges elsewhere, loaded the weapon, went to the saloon where he expected to find and did find his adversary, and without a word shot him down where he stood; that the accused then ran away and endeavored to conceal himself in a neighboring house where he was found and ■arrested; and that his sole explanation of the crime was a reference to the ■ affray of the day before. Yery much of detail and many facts and circumstances accompanied this outline of the proof, and there was no room left for a rational doubt that the killing was the act of the defendant, that it was intentional, and the result of a premeditated and deliberate purpose. We entirely agree with the verdict of the jury in that respect.

The defense attempted to be interposed was that of insanity resulting from the habitual and intemperate use of alcoholic stimulants. That bad habit was shown to have existed, but the resultant consequence was not at all established. A wild look in the •eyes, an unusual paleness, a restless movement about the room, a nervous trembling, a surly and silent refusal to answer, were the .substantial facts upon which the defendant’s witnesses characterized his conduct as irrational, but which were entirely consistent with his possible sanity. They fell far short of establishing that the accused did not, at the moment of the murder, know the nature and quality of his act, and perfectly understand that it was wrong.

On the contrary, the proof satisfactorily showed that he was sober and rational on that day ; that he went about his purpose with an intelligent adaptation of the means to the end which he had in view; that he fired the weapon, procured and loaded, without new provocation, and not once lout twice; that he fled and hid himself with an apparent and obvious consciousness of the character and consequences of his act; that he answered questions rationally and correctly; and that he gave the reason of a revengeful temper for the deed which he had done. These and many further facts, while not necessarily conclusive, scarcely needed under the circumstances proved the added evidence of the only expert examined to show that the prisoner was sane at the time ■of the murder. On this branch of the case also we agree with the conclusion reached by the jury.

Only two exceptions were argued before us. It was objected that the trial judge commented upon the facts in such manner as to prejudice the minds of the jury against the prisoner, and erred in speaking of voluntary intoxication and reading an authority on that subject to the jury. There is no just foundation for either ■criticism. The charge of the learned recorder was not only accurate and able, but thoroughly fair and impartial. Again and again, and with constant reiteration, the jury were told to draw no inference upon the facts from the charge of the court; and such reference to the facts as was needed to illustrate and bring out the application of the law was qualified with unusual care as relating to a matter solely for the determination of the jury. No charge in a criminal case could touch the facts at all with more of fairness or greater precautions against a misunderstanding of the relative functions and responsibilities of the court and jury.

There was some evidence in the case which made possible an inference that the accused was more or less intoxicated when he -committed the crime with which he was charged. That possibility made it the duty of the court to state the law on that subject. That the learned recorder did so by reading to the jury from a reported case the doctrine which he had an undoubted right to ■declare, and which was correctly stated, furnishes no ground for an exception. So long as the doctrine was sound and applicable to the possible facts appearing, it made no difference whether the trial judge used his own language or chose to avail himself of the words of another.

We see no error in the record and the judgment should be affirmed.

All concur.