text:
    Charles E. Mead, Resp’t, v. H. Edgar Hartwell, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Shout Summons—Specification of Time.
    An order of the city court, directing that a defendant he summoned toi answer within a shorter time than six days, must specify that shorter time.
    2. Same.
    An order simply shortening the time “to not less than two days” is not a compliance with the requisition of section 3165 of the Code of Civil Procedure.
    Appeal from an order of the city court, affirming an order denying a , motion to vacate an order shortening the time to answer.

      Herman F. Koefke, for app’lts; A. S. Cassedy, for resp’ts.
   Pryor, J.

The appeal is from an order of the general term of the city court affirming an order at special term denying a motion to vacate an order shortening the time to answer. On due proof of the nonresidence of the plaintiffs, an order was entered directing “ that the time in the summons within which the defendants are required to answer shall be, and the same is hereby, shortened to not less than two days after service of the summons.” Accordingly, a summons issued requiring the defendants to answer “ within two days” after service. Begularly, the summons must require an answer within six days; but, in case the plaintiff or defendant resides without the city of New York, a justice,of the court may by order direct “ that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, whereupon the summons must correspond with the order.” Code Civ. Proc. § 3165. The provision, being for acquisition of jurisdiction, must be strictly complied with. Manifestly the order fails to conform to the mandate of the Code, in that it omits to specify the exact time, less than six days, within which the defendants were to answer. The requirement of the order is merely that the summons shall cite the defendants to answer within a period “ not less than two days”; but whether they are to appear on the 3d, 4th, 5th, or 6th day after service óf summons is not specified in the order. The order leaves with the plaintiffs the privilege of designating the time within which the defendants shall answer, with the restriction only that they be summoned to answer within “ not less than two days.” Accordingly, the plaintiffs summoned the defendants to answer “ within two days.” But the Code prescribes that the court shall specify the shorter time (than six days) within which the defendants shall be summoned to answer. The order was the only authority for the issuance of the summons; and, as the order failed to define the period within which the defendants were to answer, the conclusion is that the plaintiffs were powerless to supply the omission. Clearly, the summons does not “correspond with the order,” for the one does, and the other does not, limit the time for answering. It is not to be argued that the objection urged by the appellants it merely technical. Legal procedure is a system of technicalities, the observance of which, especially upon points of jurisdiction, is indispensable to the orderly administration of justice. Order reversed, with costs.

All concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Bernard Mahon, Resp’t, v. Mayor, Aldermen, and Commonalty of the City of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Municipal Corporations—Liability.
    The park commissioners are officers and agents of the municipality of New York in the care and management of its corporate property ; and the municipality is responsible for their acts done and torts committed in the line of their duty.
    2. Same—Preventing Performance of Contract.
    The wrongful prevention by such commissioners of performance of a contract made with the municipality, by acts done in the line of their duty, gives the injured party a right of action against the municipality.
    3. Contracts—Rescission.
    The rightful exercise of an option, by one party to cancel a contract-terminates it; and the other party may not afterwards assume to abrogate it, so as to escape his liability as fixed by the prior cancellation.
    4. Pleading—Amendment.
    The power of amendment of a pleading on the trial is limited only by the qualification that the amendment shall not introduce a new cause of action or defence; and whether an amendment of a complaint introduces a new cause of action depends on whether a judgment on the original complaint would bar a recovery upon the amended complaint.
    5. Same—New Cause of Action.
    An additional item of damage consequent upon the breach of contract which constitutes the wrong sued for is not a new cause of action.
    Appeal from a judgment in favor of plaintiff.

      D. J. Dean, for app’lt; L. Laflin Kellogg, for resp’t.
   Pryor, J.

The plaintiff engaged to do certain work for defendant, the municipality of New York ; and, upon an allegation that the defendant prevented the fulfillment of the contract, he sues to recover, under a claim of damages, the value of the work done and the profits he would have earned by performance of the residue. Jones v. Judd, 4 N. Y. 411, 414.

The decisive question in the case is whether, in fact, the defendant prevented the fulfillment of the contract. The referee finds, on sufficient evidence, that the plaintiff “ was prevented from carrying out and performing said contract by the act of the commissioners of public parks and persons acting under their direction.” In an elaborate argument, counsel for the defendant contends—First, that the park commissioners are not the agents or servants of the defendant; and, secondly, that, though they be such agents and servants, yet the defendant is not responsible for their acts, because ultra vires. The park commissioners were appointed by the municipality for the care, improvement, and protection of its parks—property held by the city in its corporate capacity, in distinction from property owned and used by the municipality as an agency of government and for a governmental purpose. “The corporation of the city of 'New York'possesses two kinds of powers,—one governmental and public, and, to the extent they are held and exercised, is clothed with soveignty; the other private, and, to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes ; the latter, for private. While in the exercise of the former, the corporation is a municipal government, and, while in the exercise of the latter, isa corporate, legal individual.” Lloyd v. Mayor, etc., 5 N. Y. 369,374. The inference is plain and imperative that the park commissioners are the officers and agents of the city in the management of its corporate property ; and that for their acts as such the city is responsible. And it was expressly so adjudged in Ehrgott v. Mayor, etc., 96 N. Y. 264, 273. Though this be the law, the defendant argues that the acts of the park commissioners in preventing plantiff from carrying out and completing the contract were not within the scope of their authority. But the consolidation act expressly charges the park department with the duty of caring for and protecting the park (sections 668 and 690) ; and", in arresting plaintiff’s operation, the commissioners were obviously engaged in the discharge of this obligation. No matter if, in pursuance of the authority with which they were invested, they committed unlawful acts, still “the tortious acts, being in the course of the agency,” are the acts of the principal. Buffalo & H. Turnpike Co. v. City of Buffalo, 58 N. Y. 639, 642; Lee v. Village of Sandy Hill, 40 N. Y. 442; Stoddard v. Village of Saratoga Springs, 127 N. Y. 261; 38 St. Rep. 683.

The defense of ultra vires exists when the act complained of was wholly beyond the powers of the corporation; in other words, when it was not possible for the corporation, under any circumstances, to authorize the doing of the act. City of Chicago v. Turner, 80 Ill. 420; Mayor etc., v. Cunliff, 2 N. Y. 165; Smith v. City of Rochester, 76 N. Y. 506; Cohen v. Mayor, etc., 113 N. Y. 532; 23 St. Rep. 509; Lemon v. Newton, 134 Mass. 476; Cavanagh v. City of Boston, 139 Mass. 426, 1 N. E. 834. But, “if the wrongful act in question is one which the municipality had the right to do under some circumstances or in some manner, then it is not ultra vires." City of Pekin v. Newell, 26 Ill. 320. “If a municipality, acting by its common council or other governing, body, determines to do an act, and commits the doing of it to some officer or agent, and the act was one which it had power to authorize, he and the municipality occupy substantially the relation of principal and agent; and hence it is answerable, at least, for such torts as he commits while, acting in good faith, in exercise of the power confided to him.” Soulard v. City of St. Louis, 36 Mo. 546. “When officers of a town, acting as its agents, do a tortious act, with-an honest view to some lawful benefit or advantage, reason and justice require that the town, in its corporate capacity, should be liable to make good the damage sustained by an individual in consequence of the acts thus done.” Hawks v. Charlemont, 107 Mass. 417; Pol. Torts (Am. Ed.) 59. Within the principle of these adjudications, the defendant is clearly responsible for the act of the park commissioners in arresting the plaintiff’s work, and preventing the fulfillment of his contract. It follows, therefore, that the plaintiff had a right to abandon the contract, and that his action is well brought. Jones v. Judd, supra; Devlin v. Mayor, etc., 63 N. Y. 8, 13; U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. 81.

The evidence authorizes the inference, and so, in effect, the referee finds, that plaintiff’s employes were not arrested for violation of the city ordinance; and hence it may not be claimed that the prevention of work by the plaintiff was rightful. By a term in the contract, the defendant reserved the right to abrogate it for delay in the prosecution of the work. The work was to be completed by the 28th of April, 1891; and, being unfinished on the 14th of July, the defendant then, for the first time, gave notice of the exercise of its option to cancel the contract. But meanwhile the defendant recognized the contract as still subsisting, and waived its tardy performance. ° While the plaintiff, after his default, was; continuing the work, with the consent of the defendant, and before defendant exercised its option to annul the contract, the plaintiff, on the 10th of June, renounced it, because of the prevention of its. performance. True, the defendant had a right to abrogate the contract, notwithstanding the waiver of its timely performance; but the abrogation, when first attempted, came too late. The plaintiff had already exercised his right to repudiate the contract, Lawson v. Hogan, 93 N. Y. 39, 44, and there was then no contract subject to rescission by the defendant. Conceding that, notwithstanding the waiver of due performance, the defendant had the right to cancel the contract, such right could not survive the-effectual abrogation of the contract by the plaintiff. Rescission of a contract already at an end is an absurdity. Not thus can the defendant escape the consequences of its wrongful interruption óf the plaintiff in the fulfillment of his agreement. His prior cancellation of the contract fixed the rights and liabilities of the parties, under it

The defendant contests the finding of the referee as to the loss the plaintiff sustained by the prevention of the work; but, on a survey of the evidence, our conclusion is that we should not be warranted in reversing the decision of trial court. Baird v. Mayor, etc., 96 N. Y. 567. Profits on the work preveñted are not allowed, but only the value of the rock to be excavated and removed ; and of that value the proof is abundant

The recovery for boring and blasting the defendant challenges, on the ground that the amendment of the complaint under which it was allowed was beyond the power of the referee to authorize. The amendment was made to conform the pleading to the proof, and, unless it substantially changed plantiff’s claim, the referee had unquestionable jurisdiction to permit it. Code, § 723. Plaintiff’s claim being for damages from breach of contract, the amendment merely introduced into the complaint a new element or item of damage, consequent upon the wrong constituting the ground of action. The only limitation on the power of amendment at the trial is that no new cause of action or defense can be ncorporated in the pleadings.

Baylies, Code Pl. 324; and cases. The test whether an amendment sets up a new cause of action is, would a recovery on the original complaint be a bar to a recovery under the amended complaint ? Davis v. N. Y., L. E.& W. Railroad Co., 110 N. Y. 646; 17 St. Rep. 172. That, if the item of damage in question be eliminated from'the judgment, no subsequent action to recover it could he maintained, is too clear for argument. “ There can be but one recovery for an injury from a single wrong however numerous the items of damage, and but one action for a single breach of contract.” Perry v. Dickerson, 85 N. Y. 345, 347. The recovery under the amendment was not for money earned and due pursuant to the.contract; and so the case is not beyond the operation of the general rule. Perry v. Dickerson, supra.

We are of the opinion that the appellant adduces nothing against the validity of the judgment. Judgment affirmed, with costs. All concur. *


text:
    Ella Cram, Resp’t, v. Springer Lithographing Company App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Pleading—Election. •
    Refusal, before evidence taken, to compel an election between alternative causes of action, is not legal error. The motion for an election should be renewed after the evidence is in.
    Appeal from a judgment of the City Court, affirming a judgment in favor of plaintiff.

      Boothby & Warren, for app’lt, Kellogg, Rose & Smith, for resp’t.
   Pryor, J.

The action is for rent, upon a contract implied from the act of holding over after the expiration of the stipulated term. At the close of the evidence a verdict was directed for the plaintiff, and the principal point for decision is whether the proof of the holding over was so conclusive as to justify the court in witholding the question from the jury. We have canvassed the evidence with care; and our conclusion is that, within the doctrine of Haynes v. Aldrich, 133 N. Y. 287 ; 45 St. Rep. 243, the court was authorized to dispose of the issue as involving, upon the proof, a question of law merely. The evidence is susceptible of no other inference than that the defendant was still in possession of the premises after the expiration of the term, and the delivery of the key on the second day afterwards clearly and conclusively evinces that till then the defendant did not intend the premises to be at the disposal of the plaintiff. Assuming that the court declined a request to submit to the jury whether, in fact, there was any holding over, the defendant affirms error of the supposed ruling.. But the court made no such ruling. The request was to “ go to the jury on the question whether our holding over was wrongtnd tortious,”; and, the holding over being thus conceded, the plaintiff had the option to treat it either as a trespass or a renewal of the lease. Smith v. Alt, 4 Abb. N. C. 205, 214. Similarly, an answer to the claim now advanced, that the delivery of the keys on May 4th was no evidence of retention of possession till then, it suffices to say that defendant’s contention on the trial that the acceptance of the keys was an acceptance of possession, and a ¡discharge of the defendant from future rent, involved the concession that until then there was no surrender of the premises. Nor was there a question for the jury on the point that the delay in vacating the premises was the fault of the plaintiff. The rejected evidence touched the condition of the elevator during the last three days-of the previous week; and, for anything apparent in the proof or offered to be shown, the elevator afforded every facility for the removal of the remaing goods on the 2d of May, the last day of the term. The point that the plaintiff might not maintain the action, because of the lack of allegation or evidence of ownership of the premises, was neither raised at the trial nor presented on appeal by appropriate exception. Before evidence taken, and not afterwards, the defendant moved that the plaintiff be made to elect between alternative causes of action. Error is .not predicable of a refusal to compel an election at that stage of the trial. Tuthill v. Skidmore, 124 N. Y. 148, 155 ; 35 St. Rep. 226. Although proof may have been adduced in support of both causes of action, the recovery was for one only, and so injury was not suffered by the defendant. Tuthill v. Skidmore, supra. The record discloses no error requiring a reversal of the judgment, but it must be reduced by $41.98, and, so modified, is affirmed, with costs. All concur.


author: Abbott, S.

text:
    In the Matter for the Probate of the Will of Ernst August Raupp, Deceased.

      (Surrogate’s Court, Kings County,

      Filed November, 1894.)

    1. Wills—Joint Execution.
    Two or more persons can execute valid separate wills, though contained in the same instrument.
    2. Same.
    An instrument signed by two persons, reciting that “ it is our joint wish and will,” is valid as the will of each party, if executed by each with the formalities required by the statute.
    Prpceedings for the probate of the will.

      Frank N. O'Brien, for proponent; Fernando Sollinger, for contestants.
   Abbott, S.

On January 8, 1894, Ernst August Eaupp and Louisa Eaupp signed a paper, of which the following is a copy:

“We, Ernst August Eaupp and Louisa Eaupp, hereby certify that it is our joint wish and will: (1) That after the death of the survivor of either of us, no one has a right to take anything of our household furniture except Mrs. Elizabeth Christie, as we hereby give to her (E. Christie) as a present all movables; (2) that all moneys, after deducting all debts and expenses, are also given to-Mrs. Elizabeth Christie for nursing during our illnesses. Witnesseth by our signatures this January 8th, one thousand eight hundred and ninety-four. Ernst August Raupp,
“ Louisa Raupp.
“ Witness to signatures;
“ Ernst L. Wenz.
“ Charles L. Yolk.”

Ernst and Louisa were husband and wife, both very ill and feeble, and evidently in expectation of dying. As a matter of fact, both did soon thereafter die, Louisa on the 8th of March, 1894, and Ernst on the 16th of March, just eight days after his wife.. The aggregate value of the personal property of both Ernst and Louisa is about $2,350. They left surviving no child or descendants, and as their nearest of kin a brother of the husband and a sister and-a half-brother of the wife. ' The instrument in question has already been admitted to probate as the last will and testament of Louisa Raupp, and is now offered for probate as the last will and testament of Ernst A. Raupp. It is not disputed that all of the requisites prescribed by the statutes in relation to the execution of wills were complied with by both Louisa and Ernst. It is, however, contended, in behalf of the next of kin of Ernst, that the will is a “ joint” will, and has no legal status under the laws of this state. Counsel for the contestant concedes that “ mutual ” wills are valid in the state, under the authority of In re Diez, 50 N. Y. 88. I do not think the use of the word “ joint,” in the-opening sentence of the will, in any respect alters the signification and effect of the provisions which follow that sentence. The contents of the instrument must control. Even in the instrument, which was under consideration in the Diez matter, supra, the first clause recited that “we have made as yet no conjoint disposition of any kind,” etc. Therefore the mere use of the word “joint” is utterly immaterial, and of no consequence to the question at issue. In the instrument under consideration there is no question ’ of mutuality nor of contract between the signers of the instrument. These have been the considerations which have made difficult the determination of the effect of the other instruments which have come before the courts. In the case at bar the sole question to be decided is, can two or more persons execute valid separate wills and testaments when contained in the same instrument? I am of the opinion that, if the requisites of the statute are complied with by both signers, such an instrument is the valid will of each.

Rapallo, J., in the Diez Case, supra, at page 94, says:

“ Here," the husband having died first, it can be proved as his will, and the efficacy of his dispositions is no way impaired by those portions of the instrument which, if the wife had died first, would have constituted her will, but which have now become inoperative. The result is precisely the same as if like reciprocal dispositions had been made by the husband and wife by means of two separate instruments. The combining of such reciprocal dispositions in one instrument is sanctioned- by several authorities. Ex parte Day, 1 Bradf. Sur. 476; Lewis v. Scofield, 26 Conn. 452; Evans v. Smith, 28 Ga. 98; 1 Redf. Wills, 182; Roger’s Appellants, 11 Me. 303 ; In re Goods of Stracey, Deane & S. 6; In re Goods of Lovegrove, 2 Swab. & Tr. 453; Dufour v. Pereira, 1 Dick. 419; 2 Harg. 310, 311.”

The provisions of the instrument which would have constituted the wife’s will, had she died first, would only become operative because the sole legatee was dead. Not so in the case at bar. Applying the test suggested in the Diez Case, the provisions of the instrument would have been entirely valid and proper if written on separate pieces of paper, and such provisions are not at all difficult of construction. The payment of the legacy to the sole legatee is postponed until after the death of the survivor. In case of both husband and wife, under the circumstances of this case, the survivor would have been entitled to the entire personal estate in case of the intestacy of either. It was therefore entirely reasonable and proper to make provision for the disposition of the property, to take effect only after the death of the survivor.

I am unable to find anything in the terms of this will which would have prevented either Ernst or Louisa from changing the testamentary disposition of the property either before or after the death of either. It is true that the will can take effect only on the death of the testator. In this case it takes effect as to the property of each upon and not until his or her death. Among other authorities cited with approval by Judge Rapallo in the Diez Case, supra, is Ex parte Day, 1 Bradf. Sur. 476. In the course of his very learned and exhaustive opinion in that case, Surrogate Bradford says, at pages 483, 484:

“ Nor do I see anything in the formal requisites prescribed by our statutes in relation to the due execution of wills militating against the admission of mutual will to probate, from the mere fact that it was executed as a will by two persons at the same time, provided that all the proper solemnities were duly performed. The subscription at the end of the will, the declaration of its testamentary character, and the attestation by two witnesses, if proved, are none the less true of each of the testators because true of both. If the instrument be propounded as the will of one, the signature and declaration of the other may be regarded as mere surplusage, so far as the probate court is concerned.”

See, also, Beach, Wills, 89, 92.

I am of the opinion that the instrument now offered for probate should be admitted as the last will and testament of Ernst A. Raupp. Decreed accordingly.


author: Coffin, S.

text:
    In the Matter for the Probate of the Will of Catharine Graf, Deceased.

      (Surrogates Court, Westchester County,

      Filed November, 1894.)

    Will—Execution—Fraud.
    The execution of the will was held, under the evidence in this case, to have been procured by fraud, while the testatrix was in extremis mortis.

      Application for the probate of the alleged will of Catharine Graf, deceased.

      W. S. Allerton, for proponent; Appell & Tompkins, for contestant ; Hiram. Paulding, for special guardian.
   Coffin, S.

The alleged will of the deceased was written and executed four or five hours before her death. Her death was a result of apoplexy. At the time of the execution of the alleged will she was in extremis mortis. Her tongue and right side were paralyzed. She was in bed, and could not speak or articulate. She was a German, and the person who drew the will did not understand the German language, nor she English; and, in order to obtain instructions for the preparation of the paper, another German woman, Mrs. Helwig, who and whose infant children were to become beneficiaries therein, professed- to ask the sick woman, in her native language, if she wished to dispose of her property thus and so, and she would answer by a nod, and then Mrs. Helwig would repeat it in English to the scrivener, who wrote accordingly. The alleged will so prepared purports to give the whole estate to Mrs. Helwig for life, subject to the payment of debts and a legacy of $150 to Frederika Mack, with remainder to Mrs. Helwig’s children. Soon after the death of Mrs. Graf the executor named in the paper propounded, a Mr. Stillwell, his lawyer, and the legatee Mrs. Mary Helwig, and a female represented to be Frederika Mack, in order to escape a contest, as alleged, went at once to the court to obtain immediate probate of the paper; the petition stating the value of the real and personal estate to be $2,500, and also who were the legatees, but omitting to state the names of the infant children. The female accompanying them signed the name of “ Frederika Mack ” td á waiver of citation and- consent to the immediate probate, and was introduced by Mr. and Mrs. Helwig to the notary, who was also the proponent’s lawyer, by that name, and. he certified to her acknowledgment. This female, it is shown, was not Mrs. Mack, but personated her by the procurement of the persons concerned or some of them. On the same day letters testamentary were issued to Barnett Woodard, the executor named, and he at once, and on the same day, drew out of a bank at Mount Vernon money of the estate, and paid -the lawyer for his services in the matter about $150. Who instigated this fraud upon the court it may not be very material to inquire, but it is certain that Mr. and Mrs. Helwig were parties to it. Mor if Mrs. Mack were present can it be discovered why any contest could be feared, unless it were based upon a consciousness of some wrongdoing in the premises. A Mrs. Ehrbar, who was an old and intimate friend of the deceased, and who or whose children had been made beneficiaries under a former will, was not permitted to see the dying woman except in the presence of Mr. and Mrs. Helwig. Other facts were developed by the testimony upon which it is deemed unnecessary to comment. It was discovered by the clerk of this court, on the same day, that the infant children named in the alleged will as beneficiaries, and not named in the petition as such, bad not been cited, and he at once wrote to the executor to return the letters, which was subsequently done, but not until after the money was drawn from the bank. This proceeding was then instituted, Mrs. 'Mack and the infant children cited, and a special guardian for the latter appointed. Mrs. Mack, who is a legatee to the extent of $150 in the alleged will, had been a beneficiary to a larger amount in a former will, and contests the present one, professing to be able to establish the former.

Swinburne, in commenting upon the assent of a testator in a case like this, says in quaint language :

“It is to be presumed that he did answer, ‘Yes,’ rather to deliver himself from the importunity of the defendant than upon devotion or intent to make his will; because it is for the most part grievous to those that be in that extremity to speak or be "demanded any question, and therefore are ready to answer any question almost, that they may be quiet; which advantage crafty and covetous persons, knowing very well, are then most busy, and do labor with both tooth and nail to procure the sick person to yield to their demands, when they perceive he cannot easily resist them, neither hath* time to revoke the same afterwards, being then passing to another world. And therefore worthily and with great equity is that to be deemed for no testament when the sick person answereth, ‘Yea,’ the interrogation being made by a suspected person,- as well as in respect of presumption of deceit in the one as of defect of meaning of making a testament in the other. And this is true especially when there is a former testament.” Swinb. Wills, pt. 2, § 25.

These sound and just observations apply with great and conclusive force to this case, and the facts attending the making of the alleged will, and the subsequent suspicious and fraudulent transactions, leave no doubt that it is my plain duty to refuse probate of the paper in question, with costs against the proponent out of any funds of the estate under his control. Decreed accordingly. An order should be entered revoking the letters issued on the fraudulent probate. __


text:
    In the Matter of the Judicial Settlement of the Accounts of John J. S. Mansfield et al., as Executors of the Will of Elizabeth F. Storm, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed November, 1894.)

    1. Executors—Taxes.
    A direction in the will that the insurance and repairs shall he paid out of the rents of the realty, does not show an intention that the taxes on the realty shall he charged on the personalty.
    2. Same—Accounting—Costs.
    Where an estate is given to two classes of persons and each portion is administered hy one of the executors who render separate accounts, each class must hear the expenses of the accounting of its fund.
    3. Same—Commissions.
    In such case, commissions will he allowed to each executor from the fund represented by him.
    Judicial settlement of the accounts of executors.

      M. G. Hart, for executor John I: Storm; Remson & Parsons, for executor John J. S. Mansfield.
   Coffin, S.

The executors have filed separate accounts, it being alleged that Mr. Storm had sole charge of the real estate and Mansfield of the personal. The debts, etc., were directed to be paid out of the personal estate, and, if the taxes paid by Mansfield' were fixed at the death of the testatrix, then they were a debt the payment of which was devolved upon the personal estate by law. The will was admitted to probate in May, 1892, and these taxes were paid in June following, from which it may be fairly inferred that they were due at the testatrix’s death. In another phase of this matter before me it was intimated that, although there was an equitable conversion of the real estate into legal assets, no part of the proceeds could be applied to the payment of debts, so long as the personalty, of which the testatrix died possessed, was sufficient for that purpose, and it is now so held. It is claimed that the taxes on the real estate, accruing since the death of the testatrix, should also be deemed a charge upon the personal estate. The claim is urged mainly upon the ground that the testatrix directed that the insurance and repairs were to be paid out of the rents of the realty, saying nothing about the taxes, and that, therefore, she intended that they should be paid out of the personalty. It may have been a mere omission or she might have anticipated a sale before the accruing of any taxes. Suppose she had, instead, omitted the word “repairs,” or have omitted also “insurance and repairs,” could it be justly claimed that all these items should be paid by persons who had no interest in real estate whatever ? There was no period fixed when the realty should be sold, and it may have remained unconverted for years to come, and, if the personalty were liable for taxes to the end, then there could have been no accounting and final distribution of it until such sale. It is clearly equitable that the taxes should be charged against the proceeds of sale of the realty; and it seems equally clear that the expenses of such sale should also be so'charged. As the testatrix separated her estate into two parts, bequeathing her personalty to one class of persons, and disposing of her realty to another class, and as one executor has solely administered the former, and the other the latter, and as they render separate accounts of each respectively, each class shall bear the expenses of the accounting in regard to the fund in which it is interested, and the executors shall have comfnissions on the fund each represents. Decreed accordingly.


text:
    In the Matter of the Application by Charles E. Travis, General Guardian, etc.

      (Surrogate’s Court, Westchester County,

      Filed November, 1894.)

    Wills—Payment of Legacies.
    An application, for the payment of interest upon legacies which are due will be granted, where there is money or other personal ■ property which, may be so applied without seriously affecting the rights of others entitled to priority or equality of payment, though the result of such application will compel a sale of realty, of which the will has effected an equitable conversion.
    Application by general guardian to compel the executors to pay interest on legacies to certain infants.

      Pratt & Thompson, for petitioner; Joseph C. Crane, opposed.
   Coffin, S.

It is well settled that a surrogate has no power, in a case like this, to compel the executors to sell the real estate; but .he may, in a proper case, decree payment of a legacy, and thus, •perhaps, indirectly and legitimately coerce a sale, where the strictly personal property is insufficient for the purpose. The legacies in question are due, and the legatees are entitled to them; and the decree prayed for should be granted, if there is “money or other personal property” which may be so applied without seriously affecting the rights of others entitled to priority or equality of payment. There ’can be no doubt that the will of the testator effected an equitable conversion of his land into money (Gilb. Lex Pr. 243), and it must be treated as money. See, also, 2 Story, Eq. Jur. p. 98, § 790. It seems to be conceded that the. estate is of the value of $40,000, all of which must be treated as money in the hands of the executors, while the amount of debts and legacies is about $38,000, thus demonstrating that the decree for payment may be granted without seriously affecting the rights of any others interested in the estate. These grandchildren are minors, and justice requires that they should be paid. A portion of the real estate was not taken by the city of Hew York, and still remains unsold by the executors. Precisely when the city became the owner of the other portion does not appear, but my impression is that a considerable period intervened between the time when the executors assumed the duties of their trust and the obtaining of the title by the city, during which the whole of the realty might have been sold. However this may be, the legacies •should be paid. Decreed accordingly.


author: Smith J.

text:
    John Lapolt, App’lt, v. Hiram Maltby et al., Resp’ts.

      (Sullivan County Court,

      Filed November, 1894.)

    Taxes—Assessors—Liability.
    Assessors are personally liable to a person, who has been compelled to pay taxes on exempt property assessed by them.
    Appeal from a judgment in favor of defendants.

      C. H. Stage, for app’lt.; A. Potts, for resp’ts.
   Smith J.

This action was commenced in justice’s court to recover the sum of $18.45 from the defendants for an alleged illegal assessment. The trial resulted in a verdict of no cause of action, and from the judgment entered on such verdict the plaintiff appeals to this court. There is no dispute, so far as the return shows, as to any of the material facts in this case. The plaintiff was a resident of the town of Bethel, Sullivan county, during the years 1892-93, and owned and occupied a piece of real estate in said town during those years. The defendants were assessors of the town of Bethel for the year 1893, and, as such assessors, made, or caused to be made, an assessment roll of said town for that, year, and assessed the lands so owned and occupied by the plaintiff. The defendants also caused the taxes upon said property for the year 1892 (the same having been omitted from the roll in that-year) to be reassessed in the year 1893 by reason of which acts the plaintiff was compelled to pay the sum of $18.45 as taxes on said property for said years. The evidence shows that the plaintiff is a pensioner under the United States government, and that the property so assessed was purchased by him with the proceeds of his pension certificate; that he is a married man, having a wife- and five minor children, for whom he provides; and that said property is necessary and convenient for the support of himself and his family. The plaintiff’s property, under these circumstances, was exempt from taxation. Code Civ. Proc. § 1393 ; Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 121; Buffum, v. Forster, 77 Hun, 27; 59 St. Rep. 838; Matter of Murphy v. Jewell, 62 St. Rep. 202.

It is claimed, however, in behalf of the defendants, that the-act, on their part, of placing the property of plaintiff on the assessment roll, was a judicial act, for which they cannot be held liable in an action against them personally. They contend that inasmuch as the plaintiff was a resident of the town of Bethel, and the property actually situated therein, they had jurisdiction, both of the person and the subject matter; and the only remedy for an error of judgment or mistake on their part is to review the assessment by a proceeding for that purpose. This point, presented by the defendants’ counsel, raises the question necessary to be determined on this appeal. Assessors are subordinate officers, clothed by statute with certain limited powers and duties. Some of their duties are judicial in their nature, and as to those duties they are protected, to the same extent that other judicial officers are protected. But they possess such powers only as the statute confers upon them, and, when they go beyond those powers, their acts are absolutely void. The question in this case goes to the jurisdiction of the assessors to act, because, if they had jurisdiction over this property, their determination would be a judicial act, and they wonld not be personally liable for any error in the assessment, no matter how gross or flagrant. But did the defendants in this case have any jurisdiction over plaintiff’s exempt property ? The statute requires them to ascertain by diligent inquiry two things, viz. the taxable inhabitants, and the taxable property within their towns. They shall also make an assessment roll, in which they shall set down the names of all the taxable inhabitants therein. The law confers upon them no power over persons who are not taxable inhabitants within their town; neither does it give them any jurisdiction over property which is not the subject of taxation therein. The principle is now well established that, when assessors place upon the assessment roll of their town the name of a person who is not a taxable inhabitant therein, the assessment is absolutely void, and they are liable to an action by the party aggrieved. Mygatt v. Washburn, 15 N. Y. 316. There has been some conflict of opinion as to whether or not the same rule would apply to"i an assessment of property exempt from taxation, but it seems now to be equally well settled that it does. In the case of Prosser v. Secor, 5 Barb. 608 it was held that where assessors put the property of a minister of the gospel upon the assessment roll (the same being less than $1,500 in value, and therefore exempt from taxation), their act was illegal' and void. The same principle was applied in National Bank of Chemung v. City of Elmira, 53 N. Y. 52, and In re New York Catholic Protectory, 77 N. Y. 342, the court of appeals held that the act of assessors in placing exempt property on the assessment roll was void. It is claimed by the defendants that no proof was presented to them, on review day, that this property was purchased with pension money, and therefore exempt from taxation. The law does not require this to be done by a person whose property is not liable to taxation. By illegally placing it on the assessment roll they cannot impose upon him tho duty of appearing before them and making proof of the wrongful act. This duty is required of such persons only whose property is subject to the assessors’ jurisdiction. The evidence, however, does show in this case that the plaintiff appeared before the board on review day, and protested against the assessment of his property, stating, at the time, that the same had been purchased with pension money, and was exempt. This is not a question of good faith on the part of the assessors. They claimed to plaintiff, and no doubt believed that there was no law exempting his property from taxation, ana that they had been instructed by the state board of assessors ta put it on the roll. There is no .doubt that they acted in good faith, but the difficulty here is that they had no power or authority to assess this property, and the state board could confer none upon them. The judgment must be reversed, with costs.

Judgment reversed, with costs.


author: Van Brunt, P. J.

text:
    John Doherty, Resp’t, v. Charles S. Sweetser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Negligence—House loose in steeet.
    The jury have a right, in the absence oí explanation, to infer negligence from the fact that a horse is in the street without harness or halter and unattended.
    2. Same.
    In such case, the burden is upon the party in charge of the horse to show that he used all proper means to prevent the same and that he was without fault.
    Appeal from a judgment in favor of plaintiff.

      R. E. Deyo, for the motion; Mr. Schmitt, opposed.
   Van Brunt, P. J.

This action was brought to recover dam- . ages suffered by the plaintiff, he having been run over in the street by a horse. The evidence in this case showed that a horse belonging to one Dolman, and which had been hired by ' the defendant, and used by him during the day, drawing coal off a can al boat into the yard of the defendant, in the evening ran out of the yard, with no harness or halter upon him, and, colliding with the plaintiff, injured him severely. This action was brought to recover damages for such injuries. Upon the case being submitted to the jury, no evidence having been offered upon the part of the defendant, a verdict was rendered in favor of the plaintiff. It is urged that it was error to submit the case to the jury, upon the ground that there was no proof of negligence upon the part of the . defendant in allowing this horse to be at liberty in the public street; and this question is brought up by an exception to the ■charge, the court having instructed the jury that, in the absence of ■explanation upon the part of the defendant, they had a right to impute negligence from the fact of the horse being in the street without harness, without halter, and unattended. It is urged that it is necessary for the plaintiff to show some act of omission or commission upon the part of the defendant by reason of which the horse got into the street unattended. It is further urged that it is not shown how the horse got on the street,—whether he started away without cause, or broke away, or under what circumstances he- started off; and that such proof does not meet the requirements of the law in regard to the burden of proof in respect to negligence. And our attention has been called to various cases where this question has been discussed. It has been held that leaving horses unfastened in a public street is undoubted negligence. Norris v. Kohler, 41 N. Y. 42; and our attention is also called to cases in which it has been held that the mere fact of horses running away does not necessarily impute negligence. But in those cases it appears that the horses were properly attended, and attempted to be controlled. But we are cited to no case holding that negligence is not imputed where a horse is found loose upon the street, and causes damage, unless the owner shows the circumstances under which the escape has occured. It is negligence to allow horses to be in the public street unattended; and, where they are so found, the natural inference is that it was permitted, and it is not incumbent upon the party claiming damage to prove the negative of such permission. The burden is upon the party seeking to avoid the results arising from such a state of facts to show that he has used all proper means to prevent the same, and that he is without fault. It would seem, therefore, that the rule laid down by the.learned court was correct, and that the fact that this horse was in the street unattended called upon ' the defendant to make some explanation as to how he got there. It would certainly be placing upon the plaintiff a burden which is -entirely foreign to the ordinary rules of law to compel him to go into this yard from which this horse escaped, and prove what was done there in reference to its management,—facts which are peculiarly within the knowledge of the defendant, and which, if there has been no negligence, he will have no difficulty in showing. We are of opinion, therefore, that the exceptions should be overruled, and judgment ordered upon the verdict, with costs.


author: Dykman, J.

text:
    Thomas F. Brown, Resp’t, v. Anne Brown, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Limitations—Money had and received—Infancy.
    Where plaintiff's father, as guardian ad litem, sued for personal injuries to plaintiff, and the judgment recovered was paid to him, though he did not give the security required by law, the statute of limitations did not commence to run against the plaintiff until he attained his majority, though an action could have been commenced in the name of plaintiff for the recovery immediately after it was received.
    2. Same.
    The six-years statute of limitation is applicable to such action.
    3. Same.
    The case does not come within the exception provided in subd. 1, §410 of the Code.
    Appeal from a judgment in favor of plaintiff.

      John F. Clarke, for app’lt; Cornelius O' Connor (Horace Secor, Jr., of counsel), for resp’t.
   Dykman, J.

The plaintiff in this action is the son of Thomas Brown, deceased, who died on the 28th day of February, 1893, leaving a last will and testament, which has been duly proved and admitted to probate. The defendant who was the second wife of the deceased, and the stepmother o£ the plaintiff, was appointed the executor of the will of her husband, and duly qualified as such. In the year 1876 the.plaintiff was injured by the Brooklyn City Railroad, his father was appointed his guardian ad litem for the purpose of commencing an action for the plaintiff to recover the damages he sustained from such injuries. The plaintiff was then an infant "about 14 years old. There was a recovery in favor of the plaintiff in that action of $1,500 on the second day of April, 1877, and his attorneys paid over to his father the sum of $1,262.50, the amount of the recovery, less the costs and expenses. That payment was so made to the guardian on the 15th day.of May, 1877. The plaintiff became of full age March 25, 1884, and this action was commenced in July, 1893. The father of the plaintiff did not give the security required by the law to authorize him to receive the money, and the trial judge has found that the plaintiff learned of the collection of said money about December, 1891. On the 30th day of March, 1892, the father of the plaintiff sold and conveyed certain real property which he owned, and, after making certain payments from the proceeds of such sales, he gave the balance, of $4,000, to his wife, Anne Brown, the defendant in this action. Such gift divested the deceased, Thomas Brown, substantially of all his property, and the trial judge has found upon sufficient facts and circumstances that the same was made with intent to defraud the plaintiff. This action was commenced in July, 1893,. to set aside an nullify the gift of $4,000 to the defendant, and compel her to account for that sum, with interest, and for the recovery of a judgment against her for the sum of .$1,711, with interest from May 20, 1877, and for other relief. The cause was tried before a judge without a jury, and he decided in favor of the plaintiff, and found the facts recited above in this opinion. A judgment has been entered upon the decision of the judge in favor of the plaintiff against the defendant declaring the gift of $4,000 to the defendant by the plaintiff's father void, as having been made to hinder and defraud the plaintiff in his lawful demands against his father, and awarding a personal judgment against the defendant in favor of the plaintiff for $2,777.89.

The action was authorized by chapter 487 of the Laws of 1889, which provides that any creditor of a deceased insolvent debtor, having a claim or demand against the estate of such deceased debtor exceeding in amount the sum of $100, may, for the benefit of himself and other creditors interested in the estate of such deceased debtor, disaffirm and treat as void all acts done and conveyances made in fraud of the rights of any creditor by such de-. ceased debtor, and for that purpose may maintain any necessary action to set aside such transfers or acts; and for the purpose of maintaining such action it shall not be necessary for such creditor to have obtained a judgment upon his claim or demand, but such claim or demand, if disputed, may be proved and established upon the trial of such action. The plaintiff did not sue in behalf of himself and other creditors, but that defect was waived by a failure to raise the question by answer or demurrer. It became necessary, however, for the purpose of administering the full relief contemplated by the statute, to ascertain in some way the other creditors of the deceased, if any there were. For that purpose an interlocutory judgment was entered appointing a referee to advertise for creditors, and upon the coming in of that report a final judgment was entered as stated above. The defendant has appealed from both judgments. The serious and important question in the case is whether the claim of the plaintiff is barred by • the statute of limitations.

“ It is the insistence of the defendant that the deceased received the money recovered from the railroad company without authority, and under circumstances which rendered it his duty to pay it over to the plaintiff at once; that an action for money had and received could have been maintained for its recovery without any demand, and therefore the statue of limitations commenced to run upon the receipt of the money. On the other hand, the plaintiff contends that the deceased was the trustee of an express trust, and received the money in question in that capacity, and therefore the statute did not begin to run against the plaintiff until the deceased openly renounced or repudiated the trust to the knowledge of the plaintiff. Upon that question of the statute of limitations our conclusion is in favor of the appellant. The father of the plaintiff received the money of the plaintiff which was the proceeds of his recovery against the railroad company without authority, and, as he had no right to receive it, he was destitute of authority to retain it. The relation which the law created between them was that of debtor and creditor, and not that of trustee and beneficiary. There was neither “ trustee,” “ trust fund,” nor “ beneficiary,” within the legal meaning of those terms. It was neither the intention or contemplation of either party to create a trust, and the deceased was charged with no trust with respect to the money he received, either in its management or control. In the case of Kane v. Bloodgood, 7 Johns. Ch. 90, Chancellor Kent said :

“ The word ‘ trust ’ is often. used in a very broad and comprehensive sense. Every deposit is a trust; every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity as a trustee for a breach of trust.”

According to this principal, every lawyer who collects money for his client—in fact, every one who receives money for another —holds the same in trust But such persons are not trustees of a subsisting trust in the sense in which that term is legally and properly employed. They receive money belonging to another, which, according to equity and good conscience, they are bound to pay over, and they become debtors for the same. It is true that persons receiving money in a fiduciary capacity are sometimes denominated “ trustees ex maleficio” and “ trustees de son tori ”; but when such terms are applied they are employed only to designate those implied trusts which the law sometimes raises for purposes of justice, and to such trusts the ordinary rules of limitation apply. The si^c-year statute is applicable. Mills v. Mills, 115 N. Y. 75; 23 St. Rep. 604. Mr. Perry, in his works on Trusts (section 245), says: “ A person may become a trustee by construction by intermeddling with and assuming the management of property without authority;” but such persons are not trustees of an actual, subsisting trust. Such trusts are continuous and have well-defined characteristics, which impart to them validity and vitality, and require administration in the interest of a beneficiary, or “ fide commissary,” a term which Judge Story deems a euphonious substitute for “ cestui que trust," which is an awkward, barbarous phrase. Story, Eq. Jur. § 321, and note. In such a trust the statute does not begin to run until the trustee has renounced the trust to the knowledge of his beneficiary, or fide commissary. Lammer v. Stoddard, 103 M. Y. 673; 4 St. Rep. 225. The whole doctrine is tersely stated in the headnote to the case of Kane v. Bloodgood, supra, as follows :

“ As long as there is a continuing and subsisting trust acknowledged or acted upon by the parties, the statute does not apply; but if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period may constitute a bar in equity; but other trusts, which are the ground of an action at law, are not exempt from the operation of the statute.”

This case falls into the last category mentioned, and a cause of action accrued to the plaintiff when his father received his money. The case of Paries v. Satterthwaite, 132 Ind. 411, 32 K. E. 82, is quite similar to this, and is very instructive upon the questions here involved.

There is, however, another question for solution. The plaintiff insists further that the statute of limitations did not commence to run against him in respect to his claim against his father until March, 1892, because he had no knowledge of the receipt of his money by his father before that time; and that position is based upon the following provision of the statute :

“ Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time when the right to make the demand is complete, except in one of the following cases: Where the right grows out of the receipt or detention of money or property by an agent, trustee, or attorney, or other person acting in a fiduciary'Capacity, the time must be computed from the time when the person, having the right to make the demand, has actual knowledge of the facts upon which the right depends.” Code Civ. Proc. § 410.

A trial judge has found that the plaintiff learned of the collection of the money by his father about December, 1891, but if that is to be construed as a finding that he had no knowledge of such payment previous to that time, then the finding is entirely destitute of evidence for its support. There is no such proof in the case, and there is no testimony from which any such inference can be naturally drawn. On the contrary, the fair and natural inference from the testimony is the other way, and adverse to the plea of ignorance set up by the plaintiff. Let us examine. In the first place, the trial judge has found as á fact that the plaintiff knew of the recovery in his favor against the railroad company before his majority, but not the amount. In the next place, the plaintiff stated in his verified complaint that he had almost lost all recollection of the fact that a suit had been brought for the recovery, of damages for his injuries, and that his father had received any money for him as guardian ad liiem; that these facts were brought to his mind from a conversation he had with his friends. The language plainly implies that he had knowledge of the facts he states, but had almost lost all recollection of them, and that they were brought again to his mind by a conversation with his friends. The same inference is easily drawn from the circumstances which cluster round the transaction. The plaintiff was 14 years old at the time of the trial, and testified in his own behalf. He recollects the incident, and remembers stating to the jury the manner in which he was injured ; and an event so disastrous to him would not fade from his memory, as every step he took in walking reminded him of his injury. He knew he had not received any money on account of the recovery, and at his age he would naturally inquire whether it had been paid or remained unpaid. His knowledge of the payment of the money to his father at the time is the more readily inferred from his silence on the subject when giving his testimony in this action. It was not only essential, but vital, to prove his ignorance, and it was a fact which he was required to establish ; yet he did not swear to it. His testimony is guarded. He says his attention was directed to the suit brought in his behalf in 1876, about two years ago, but that is far from saying he was ignorant of the fact, or did not remember it. Besides that, he admitted in his testimony that he remembered the suit, and remembered .being a witness upon the trial. The failure of the plaintiff to testify to his ignorance is very significant, and justifies a presumption that he could not do so because it was not true, and that he was in possession of such knowledge all along. Besides all this, the plaintiff encounters this well-recognized principle of law: Where a party has knowledge of such facts as would induce a man of ordinary prudence to make further inquiry, a failure to make inquiry is visited with all the consequences of notice. Wade, Notice, § 11. The rule is peculiarly applicable to the plaintiff. He knew his father had sued the railroad company for him, and recovered. He knew the money had not been paid to him. He knew his father could furnish him all the information required. IE his father refused to do so, he could have learned all he required from the officers of the railroad company. If he was ignorant, he was put upon inquiry, and such inquiry would have yielded all the knowledge he required. We are therefore, on this ground alone, justified in charging the plaintiff with full knowledge of the receipt of the money by his father. A more general view leads to the same conclusion. Here we have the case of a. lad 14 years of age, when the mind is quite mature, receiving an injury to his leg which necessitates an amputation. His father, as his guardian, brings a suit to recover the damages he has sustained, and he is present at the trial, and testifies in his own behalf. There is a verdict in his favor, and his father receives the money. Thereafter he resides with his father for many years, even after he attains his majority. It is inconceivable that during all that time subsequent to the receipt of the money its reception was never mentioned by either the plaintiff or his father, and that the plaintiff remained in ignorance of its collection until about two years ago. We therefore reach the following conclusions:

First. The receipt of the money created the relation of creditor and debtor between the plaintiff and his father.

Second. That although an action could have been commenced in the name of the plaintiff for the recovery immediately after it was received, yet the statute of limitations did not commence to run against the plaintiff until he attained his majority.

Third. That the disability of the plaintiff resulting from his infancy was removed by the attainment of his majority more than six years previous to the commencement of this action, and that the six-years statute of limitation is applicable to this action.

Fourth. That the plaintiff must be deemed to have had knowledge of the receipt by his father of the money recovered from the railroad company immediately after its reception, and does not, therefore, come within the exception provided in subdivision 1 of section 410 of the Code of Civil Procedure.

Fifth. That the j udgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: Dykmah J.

text:
    Elizabeth S. Edgecomb, Resp’t, v. Sarah C. Buckhout, as Administratrix, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

      1. Master Aim Servant—Discharge— Question of Law.
    Where there is no dispute as to the facts, the right of a master to discharge his servant is a question of law.
    2. Same—Good Cause.
    A woman who, after making a contract to keep house for a man and to take care of him until his death, marries, thereby disqualifies herself from performing the contract.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Frederick J.Lancaster (Louis O. VanDoren), for app’lt; Daniel B. Thompson, for resp’t.
   Dykmah J.

This is an action brought against the administratrix with the will annexed of Eckford Webb, deceased, to recover the value of personal services of the plaintiff to him. The plaintiff entered the service of the decedent in August, 1880, under an agreement which fixed her compensation at $60 a month. It was paid down to February 1, 1881, when a new agreement in relation to her compensation was made, by which the plaintiff was to render the same services for the decedent until his death, for which she should receive as compensation therefor, by his will, a life estate in the house and lot ¡No. 78 Rush street, in the city of Brooklyn, $5,000 in cash, and $3,000 in railroad bonds. Under this agreement the plaintiff remained in the service of the deceased until about the middle of April, 1889,—about four years and a half before the death of Mr. Webb,—when she left. Three weeks before that time there was an interview between the plaintiff and the deceased, which was described by the plaintiff, in her testimony upon the trial, as follows :

“I said, ‘Uncle Eck, Mr. Edgecomb called here yesterday morning, and, to my great surprise, asked me to marry him, and I want your advice. That was about three weeks before I left Mr. Webb. He said, ‘Elizabeth, I have not any advice to give.’ He was very angry for a moment. Q. How soon after did you accept Mr. Edgecomb’s offier ? A. About 10 days. Q. From the time he proposed, in 10 days, you accepted that offer ? A. I cannot say it was just exactly 10 days to that time ; after I talked with Mr. Webb, and we talked about my going away if I did marry, and so on. Q. Did he say anything to you about your leaving, before you spoke to him and told him that you contemplated marriage with Mr. Edgecomb? A. ¡No, sir.”

When subsequently requested to state the whole of the conversation, she continued as follows:

“He said to me, when I told him, ‘Elizabeth, you promised to remain with me.’ I said, ¡Uncle Eck, so I will remain with you, just as long as I live’; and he said, ‘Mr. Edgecomb would not want you to wait upon me as you have always done.’ I said, ‘I have spoken of the matter to Mr. Edgecomb, and without his consent to that, which he freely gives, I would never marry him.’ Then I made three proposals, and he said he would consider them. I said, ‘I will remain here with you, and Mr. Edgecomb can remain at the Wall House, where he is. Another thing I will do is to take a house, furnish it, and get settled as soon as possible, give you the best rooms in the house, and care for you always as I have done, or Mr. Edgecomb and I will come here to live with you and care for you.’ And I proposed that, while I went on a short wedding trip, my stepmother would come and keep house for him. After considering, he gave me three weeks to leave the house. He said he would give me three weeks to leave the house; that he would not accept any of these arrangements that I was willing to make. ”

A witness produced by the plaintiff upon the trial testified to a ■conversation with Mr. Webb in relation to the foregoing propositions, as follows:

“ Mr. Webb said to me that his objections to any of those three propositions were that he did not propose to have a married man taround; he wanted the services of an unmarried woman. He also said to me that Mr. Edgecomb would not permit his wife to administer to him in the same manner that she had formerly done, and the manner in which it was necessary for him to be administered to.”

Mr Webb made a will in April, 1883,—more than two years after the new arrangement was made between him and the plaintiff,—in which'he provided for her according to his contract, but he revoked that will by another in August, 1891. The plaintiff waited until the termination of the period for which she was hired, and now claims to recover as damages the wages she was to be paid under her contract with the deceased. The defendant, on the contrary, insists that the discharge was justifiable, and that the reasons therefor were amply sufficient. The case was tried at the circuit before a jury. When the plaintiff rested, and again at the close of the testimony, the defendant moved to dismiss the complaint, and excepted to the denial of the motion. There was also an exception to the refusal of the court to direct a verdict for the defendant. The trial judge left it to the jury, as a question of fact, to determine whether or not the effect of the marriage of the plaintiff was to render it practically impossible for her to continue to render the same services as she had rendered before. His language was this:

“Í leave it to you, as a question of fact, to determine whether ®or not the effect of .the marriage was to render it practically impossible for the plaintiff to continue to render the same services as she had rendered before. As I have said, if you shall find that the effect of the marriage she was about to contract took it out of her power to perform the contract, then she cannot recover at all. If such was not the effect of the marriage, and if you shall find that it was practicable for her to go on and do just what she did before, and that Mr. Edgecomb, her husband, was willing that she should go on and do just as she did before, then Mr. Webb was not in a position to break off the relations until something actually occurred which made it certain that she could not go on. Of course, he was under no obligation to make any change in his-household to accommodate the husband. He was under no obligation to admit him there, either as the spouse of this lady or as a visitor, or for any purpose whatever, or to sacrifice one moment of the time which the plaintiff engaged should be devoted to him, in order that she might devote it to her husband. But he was not justified in breaking off the relation, if it were practicable that that relation should continue as it had continued, and it was intended to continue by the contract, if she did everything to render-such result possible."

The jury rendered a verdict in favor of the plaintiff for $8,330. The trial judge submitted six questions to the jury, which, with the answers, are as follows:

“First. Was it agreed on or about February, 1881, between the plaintiff and Eckford Webb, that she should render services to him then as his housekeeper, and, as compensation of such services,'that he would, in and by his will, give her a life estate in 78 Rush street, Brooklyn, $5,000 in cash, and $3.000 in railroad bonds? Yes. Second. Did Eckford Webb dismiss the plaintiff from such service because she became engaged to marry Daniel W. Edgecomb? Eckford Webb dismissed the plaintiff because-she had informed him that Daniel W. Edgecomb had proposed marriage to her. Third. Did the marriage of the plaintiff to Daniel W. Edgecomb make it practically impossible' for her to continue to perform such services as she agreed to perform as-housekeeper for Eckford Webb? Ho. Fourth: Did the plaintiff voluntarily leave or abandon the service of Eckford Webb upon entering into her marriage engagement? Ho. Fifth. Has-the plaintiff been paid for such services as she rendered for Eckford Webb? Ho. Sixth. What was the fair, reasonable value-per month of such services as the plaintiff rendered to Eckford Webb? $85 a month. ,

In relation to the second question, it is to be said that it did not. present the question involved in the action. Webb did not dismiss the plaintiff from his service because she became engaged to Edgecomb, but because she intended to marry him. Both the4 question and answer are therefore immaterial.

The third question did not present a material point to the jury. The discharge may have been justifiable, even though it was practically possible for the plaintiff to continue to perform such services as she agreed to preform for Webb. The question was, assuming it to be one of fact, whether the contemplated marriage-of the plaintiff furnishéd a sufficient reason for her discharge. If a servant steals his master’s property, we suppose the larceny would constitute a valid legal justification for his discharge, and yet the jury might find it practically possible for him to perform his duties as he had done before.

We have, however, reached the conclusion that the question respecting the right of the deceased to discharge the plaintiff should. have been decided as a question of law, by the trial court, and that the submission of the question to the jury for determination, as one of fact, was erroneous. The testimony respecting the discharge was uncontradicted. It was all furnished by the plaintiff, and was not disputed. The cause of the dismissal is plainly stated. The evidence is free from conflict, and no question of fact was involved. Therefore, assuming the question to be one of law, what is its true solution ? The deceased man required the services of a single woman to take charge of his house, and to give him her personal attention, and he hired the plaintiff to fill that position and perform those duties. She was then a single woman, and he hired her because she was such. The evidence shows that he was pleased with her, and made his will to insure the performance of his contract with her. Finally the plaintiff informed the decedent of her offer of marriage, and sought his advice. He was displeased, and had no advice to give her. Then she made him three proposals for a modification of their contract, all of which contemplated her marriage, and were based upon that event. He did not accept her propositions, because he wanted the services of an unmarried woman; and he knew that Edgecomb would not permit his wife to administer to him as she had theretofore done, and it was necessary for him to have such administration. Of course, Webb was under no obligation to modify his contract with the plaintiff. He had bargained for a single woman to administer to his personal necessities and comforts, and he had a right to the benefit of his bargain. The case is peculiar. The plaintiff was about to change herself from a single woman to a married woman. The change would be radical, and, in the estimation of the deceased, it would prevent the plaintiff from carrying out her contract with him as fully as he had a right to expect and require. That seems to bring the case within the rule of law stated by an elementary writer as follows:

“Yet the legal principle is correct that for habitual negligence or unwarranted absence, or for any such conduct in fact as prevents a mutual agreement from being carried out to the reasonable satisfaction of the employer, the person employed may be dismissed.” 1 Schouler, Dom. Eel. (4th Ed.) § 462.

Marriage is not only a contract, but an institution. It not only creates rights and imposes obligations, but it confers a status. It may be stated as a general rule that when one fails to perform his part of a contract, or disables or disqualifies himself from performing it, the other party may treat the contract as rescinded. After mature deliberation, we think the marriage of the plaintiff wrought such a change in the plaintiff herself as to disqualify her from the performance of her contract with the decedent, and he was justified in considering her proposed marriage as a rescission of the contract on her part, and discharging her for that cause. The judgment and order should be reversed and a new trial granted; costs to abide the event. All concur.


author: Cullen,

text:
    Robert H. Sherwood, Resp’t, v. Maitland E. Graves, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Contract—Entire.
    Acceptance of services, rendered under an entire contract, authorizes a i recovery therefor without proof of full performance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Lowrey, Stone & Auerbach (Frederic A. Ward, of counsel), for app’lt; William B. Putney, (Henry B. Twombly, of counsel), for resp’t.
   Cullen,

is an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. The action is to .recover for services rendered by the plaintiff in procuring for the defendant the purchase and acquisition of the securities of and the liens upon a bankrupt railroad on Staten Island. There is no question that the contract was an entire one, and that the plaintiff was bound to prove a full performance of the contract, or a waiver by the defendant as to any deficiency, or that such deficiency was due to the fault of the defendant. So the trial judge charged. It was not error to submit the question of the terms of the contract to the jury; at least, by the submission no harm was done to the defendant. It may be conceded that the letters of February 29 th constituted the original contract between the parties, and such contract, being in writing, was to be construed by the court, and not by the jury. But this was not the contract under which the services were rendered. The defendant himself testifies that, after the original proposition on the $65,000 basis (that is the one contained in the letters), the plaintiff told him he could not get the road on that basis, and that then he told the plaintiff to go ahead and do the.best he could. Thus, there was a new contract between the parties, resting in paroi; and from that time it was not necessary that the plaintiff should obtain the securities of the road at a gross price of $65,000. It was sufficient that he should obtain them at a price satisfactory to the defendant. There was evidence showing that the defendant took up the great mass of these securities under negotiations made by the plaintiff with their holders. This was sufficient to show an acceptance by the defendant of the plaintiff’s services, and his approval of the price. The case was therefore properly for the jury, and we find no error in the charge by which it was submitted to the jury. The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs.

All concur.


author: Cullen J.

text:
    George Wilber, Resp’t, v. Mary Wilber et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Equity—J ukisdiction.
    An action in equity will not lie to determine and declare the several rights and interests of parties in personal property.
    Appeal from a judgment in favor of plaintiff.

      L. B. Sackett, for app’lts; Wood & Morschauser, for resp’t.
   Cullen J.

This is an appeal from a judgment entered upon the report of a referee. We are met at the threshold of the discussion of this case with the objection that the action cannot be maintained. The plaintiff alleges that he is the owner of certain personal property, consisting of farming utensils, live stock, etc., on the farm of the plaintiff and defendants; that the defendants have, or claim to have, some right or interest in said personal property ; that the defendants are in possession of the property, and refuse to permit the plaintiff to take possession of the same. Thereupon the defendants pray judgment that the several rights and-interests of the plaintiff and defendants in said property be determined and declared. The judgment follows the prayer, and declares that plaintiff owns certain of the chattels; that each of the defendants owns others of the chattels; and that certain of the chattels are owned in common. We know of no precedent for an action of this character. The action is concededly not for a partition of chattels owned in common, nor for an accounting between the parties as partners. The plaintiff seeks to establish no equitable title to the chattels, nor to enforce any trust. He rests solely on his legal title, and avers that the defendants have or claim an interest in the chattels. If the defendants are part owners with him, he has no right to take the chattels from their possession. His only remedy is by the action for partition given by the Code. If he denies defendants’ interest in the chattels, his remedy is replevin or conversion. Even as to real estate, equity will not entertain an action to remove a hostile claim as a cloud on the title, unless the instrument is en its face valid, and its invalidity proceeds out of facts not appearing in the proof necessary for the claimant to make in an action to enforce his claim. The action to quiet claims to real estate is not equitable, but legal and purely statutory; no such action being maintainable except in compliance with the statute. Certainly, equity will not take cognizance of suits in equity as to chattels where it would not entertain jurisdiction of similar suits as to real estate. The judgment appealed from should be reversed, and complaint dismissed, with costs. All concur.


author: O’Brien, J.

text:
    Paul G. Grening, App’lt, v. George Malcolm, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Appeal—Case—Statement.
    A statement in the case that it contains all the “testimony ” is not equivalent to one that it contains all the “evidence.”

      2. Same—New Tbial.
    The granting or refusing of a new trial on the minutes is largely a matter resting in the discretion of the judge who presided at the trial.
    Appeal from an order granting a motion on the minutes to set aside a verdict in favor of plaintiff, and for a new trial on the ground that the damages were excessive and that the verdict was contrary to the evidence and the law.

      Richard T. Greene, for app’lt; Edward D. Bettens, for resp’t.
   O’Brien, J.

This action was brought to recover $9,919.50, the value of plaintiff’s services rendered as a broker in obtaining for the defendant the sum of $150,000, which services consisted in promoting, organizing, and perfecting a brewery company, and in negotiating and selling certain of its securities. The performance of some service was admitted, the value alone being placed in dispute, and upon this issue as to the value of such services the question was submitted to the jury. The jury found in plaintiff’s favour for $7,000, which was then and there set aside, and a new trial ordered. It is from this order that the plaintiff has appealed, insisting that,' as there was no exception taken to the submission of the question, or motion made either to dismiss the complaint or for the direction of a verdict, the court could not set aside the verdict as contrary to law, if. there was any evidence to sustain it. Upon the rule of law thus invoked the appellant confidently appeals to the evidence as furnishing sufficient basis for the amount of the verdict. In this connection, however, it is to be noticed that the case on appeal has no statement that it contains all the evidence, but only a statement that it “ contains all the ' testimony taken on the trial of this action.” This is insufficient, it having been held that such a statement is not equivalent to the statement that the case contains all the evidence, and, in the absence of the latter statement, the general term is precluded from reviewing questions of fact. Randall v. N. Y. El. Railroad Co., 76 Hun 427; 59 St. Rep. 352. To avoid this question being presented to us again, and assuming that all the evidence most favorable to the plaintiff is contained in the case, we have examined it with a view of determining whether the appellant’s position is correct in holding that it was reversible error in the trial court to set aside the verdict. The testimony offered by plaintiff as to the character of his services, and the value placed thereon by himself and his experts, was neither satisfactory nor conclusive; and, offset as it was by the two experts produced by the defendant, and the fact that upon a submission of this question of value to an umpire he fixed the amount at $1,500, it cannot be claimed that the judge erred in regarding the verdict awarded as excessive. As aid in Horan v. Central Park, etc., Railroad Co., 59 St. Rep. 691:

“ The thing that ascertains the'valueof testimony is mainly the manner of its delivery, the apparent candor and sincerity of the witness, or his manifest simulation and dissimulation. Of this decisive test of truth the trial court has the full advantage, while we are without it. Hence the rule that on appeals from orders giving or refusing new trials upon a claim that the verdict is -against the evidence and the justice of the case the decision of the trial judge is of the weightiest influence. Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948.” _

_ In addition to this case from which we have quoted, which is authority for the proposition that an order of the trial judge setting aside a verdict as against the evidence will he reversed only for abuse of discretion to the prejudice of justice, we have another authority in the case of Young v. Stone, 77 Hun, 395; 60 St. Rep. 419, wherein the cases are collated and discussed, and from which it will be found that the language employed in nearly all the cases relating to this subject is somewhat similar, in holding that the granting or refusing of a new trial on the minutes is largely a matter resting in the discretion of the judge who presides at the trial. Thus in Barrett v. Railroad Co., 45 N. Y. 632, it is said:

“ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered ■evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.”

Having regard to the discretion vested in the trial judge, and the testimony offered to support the evidence set aside, we do not think that there is any ground upon which to assert that such discretion has been abused. The order accordingly should be affirmed, with $10 costs and disbursements.

Van Brunt, P. J., concurs in result.


author: Follett, J.

text:
    William H. Burgess, Resp't, v. Walter S. Badger, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Partnership—Liquidation—Compensation.
    A liquidating partner is not, in the absence of an agreement therefor, entitled to compensation.
    Appeal from a judgment in favor of plaintiff.
    This action was brought for an accounting between partners. October 15, 1890, the litigants executed a written contract by which they became equal partners, under the firm name of W. S. Badger & Co., “ for the transaction of the commission dry goods business in the city of Hew York and city of Boston.” By the first article of the contract, it was agreed that the partnership should begin October 15, 1890, and end October 15, 1891, unless previously dissolved by notice, or by an operation of law, for a cause other than the death of one of the partners. The following articles are the ones which relate to the claims made by the parties to this action : “ Article Second. Said Badger shall not be required to contribute any capital to said firm, but may do so with the consent of said Burgess; but said Burgess shall contribute such amount of capital to the firm from time to-time as shall be; reasonably necessary for the requirements of the business of the firm, but he shall not have the right or be bound to contribute, as» capital, any more than that amount.” “ Article Twelfth. No-advance shall be made by either partner on goods consigned to the firm, exceeding two-thirds of the fair market value at the time, of the advance of the goods upon which the advance is made.” “ Article Thirteenth. In case of the death of either partner during the continuance of the partnership, the partnership shall not» thereby be dissolved, but shall continue for six months thereafter; and the estate of the deceased partner shall be entitled to the same share of the profits of the business during such six months, and bear, sustain, and pay the same share of the losses and expenses of the business during that period which the deceased partner would have been entitled to, or been bound to bear, sustain, and pay, in case he had lived. Article Fourteenth. Either partner may dissolve said partnership at anytime, whether during or at the expiration of said one year, or afterwards, by giving six months’ notice in writing of his intention to dissolve the same, to-his copartner. Article Fifteenth. And it is expressly provided, notwithstanding the foregoing provisions, that, if either partner shall commit any substantial breach of any of these articles of partnership, the other partner may thereupon, or at any time thereafter, if he so elects, dissolve said partnership without giving any previous notice. Article Sixteenth. Upon the dissolution of said partnership, all the assets and property of said firm shall be sold and converted into money with all reasonable dispatch, except débts owing to it, and those shall be collected with all. reasonable dispatch, and such as shall not be collectible shall be-sold and converted into money. The proceeds of the sales of its assets and property, including the proceeds of the sales of any debts, and also the money collected on debts owing to it, shall be applied first to pay the debts of the firm to others than the partners therein, and, after the payment thereof in full, then next to» the payment to each partner of what shall be owing by the firm to him for capital contributed by him to the firm, and interest-thereon, or money lent by him to the firm, and interest thereon, and after the payment thereof in full the surplus shall be divided amongst the parties according to their respective interests therein.” On the 15th of September, 1891, the partnership was dissolved, and it was then agreed that the defendant should liquidate its affairs, who thereupon, from time to time, converted the assets of the firm into money, and paid over large sums to the-plaintiff. On the 29th of April, 1892, the defendant delivered to-the plaintiff, the following account:
    “ W. H. Burgess, in account with W. S. Badger & Go.
    “Interest to April 29, 1892.
    Dr. Or.
    Feb. 1. By balance............... $6,225 6&
    Api. 20. “ interest to date............. 81 97
    “ ' “ “ share of profit & loss......... 5,250 99

      Apl. 29. To cash, expense, rent, &c., pd
    A. Van Bergen & Co...... $2,022 27
    “ “ “ pd. W. S. Badger, , liquidating business............. 10,000 00
    Balance......................... 463 63
    12,022 27 12,022 27
    To balance...................... 463 63
    “ B. & O. B. W. S. Badgee & Co.,
    “ L McA.”'
    The plaintiff acknowledged the correctness of the statement, except the items $2,022.27 and $10,000, which he refused to allow, and on the 11th of January, 1893, brought this action. The defendant, in his answer, omits the item of $2,022.27, and increases the charge for liquidating the business to $15,000, and also alleges that the plaintiff ref used to perform his covenant to furnish capital, as provided in the second article of the partnership agreement, to his damage in the sum of $25,000. The plaintiff, by his reply, denied the allegations contained in the answer setting forth counterclaims. The issue thus joined was tried before a special term, which found all of the material facts in favor of the plaintiff.

      John J. Adams, for app'lt; Payson Merrill, for resp’t.
   Follett, J.

The court held that the defendant had failed to establish his alleged counterclaim, and that he was not entitled to compensation for liquidating the business, and that the plaintiff was entitled to recover $11,559.67, the amount shown by defendant’s statement of April 29, 1892, less the items of $10,000 and $2,022.27, aside from an error in the item “ interest to date,” which was found to be $83 instead of $81.97—a difference of $1.03. But two questions are presented on this appeal: (1) Are the third and eighth findings of fact sustained by, or are they contrary to the weight of evidence ? (2) Is the defendant entitled to compensation for liquidating the affairs of the firm?

“(3) On September 15, 1891, the said firm was duly dissolved by mutual consent, the particular time of such dissolution being determined by the defendant.” "(8) The plaintiff, Burgess, complied with the provisions of the partnership articles requiring him to contribute such amount of capital to the firm from time to time as should be reasonably necessary for the requirements of the business of the firm, and duly complied with all the articles of partnership on his part.”

The plaintiff, in his complaint, alleges that the partnership was dissolved September 15, 1891, by mutual consent. The defendant, by his answer, admits that it was then dissolved, and alleges that it “ was dissolved because of the refusal of the plaintiff to contribute capital as agreed in said articles of copartnership.” June 10, 1891, the defendant wrote the plaintiff as follows:

“June.10th, 1891.
“My Dear Burgess: Yours rec’d. In talking with you the other day, I told you I thought the present copartnership expired, underits articles, on Oct. 15th. In reading them over, I find it expires on six months’ written notice. Be it as it may, I do not think we shall have any trouble in terminating it, when it ■appears to be to the interest of all-concerned. * * *
Yours, ■ - ■ W. S. Badger.”

So far as the record shows, this was the first that was written or said between the partners about dissolving the firm. On the 15th of June," 1891, the partnership then" having existéd for eight months, the plaintiff notified the defendant, in writing, that the partnership would be dissolved six months from that date. Subsequently, and on the 15th of'September, 1891, the‘firm was!'dissolved. From this fact, and1 the other1 evidence, it is apparent that the dissolution, which occurred long before either partner -could have compelled it, was the result of a mutual agreement. The defendant alleges in his answer that‘he consented to the dissolution because the plaintiff had failed toi perform the second .article before quoted, for which he claims $25,000 damages. The fact that the defendant made up a certaiir statement of the- affairs' -of the firm- on the 29th of April, 1892, without preferring any-«claim for damagés, and never having suggested such ‘a claim until after the plaintiff refused to allow the two items-in his account, is-' a significant one, and greatly discredits the' validity of the defendant’s claim for damages. It is singular that the defendant failed to discover, or at least to complain, that the plaintiff had broken his covenant, to his damage in so large an amount, until a disagreement arose over the account. Without repeating the evidence which 'sustains the findings, we are of the opinion that the facts were well' founded, and that they are sustained by the evidence. This brings us to the question whether the defendant_was entitled to recover for winding up the affairs of the firm." Upon this issue the court found:

“(7) There was no agreement between the said partners that the defendant,' Badger, should be allowed any amount for liquidating the business, and no claim was made by the defendant Badger1 that he should be entitled to be paid any amount for liquidating the business before the rendition of the said account, on or about April 29, 1892, and the defendant is not- entitled to charge the plaintiff with any amount for liquidating the business."

This finding is amply sustained by the evidencé. The defendant did not testify that the plaintiff at any time agreed that compensation should be made for liquidating the affairs of the firm, and the plaintiff testified that there was no such agreement. On the contrary, he testified: “Mr. Badger said there should be no expense for collection. I offered to collect without any ■ expense. Mr. Badger said there would be no trouble and no expense.”

The defendant denied that he agreed to collect without compensation, or that the plaintiff offered to liquidate the affairs of the firm without compensation. The defendant testified :

“It was finally determined between Mr. Burgess and myself to dissolve the firm on the 15th of September, 1891. The stock of goods we had on hand at that date aggregated $300,000. The outstanding accounts owing us amounted to $495,059.94. The trial balance shows that amount exactly. Mr. Burgess was here at the date of the dissolution, and talked the matter over with me. He wanted to put the settlement of the affairs of the business into the hands of a third party, and I declined to allow that. He then wanted to put it in the hands of a receiver, which I also declined.”

On his cross-examination he testified:

“ There was a conversation between us on this subject of who should do the liquidating, at my office, 105 Worth street, New York, or it might have been at lunch,—at one of those two places. I think we had several conversations on that subject. The whole subject of the matter was that he wanted to put this business into the hands of a third party to liquidate. He said a third party. He did not mention whom he wanted. I declined. Then he wanted to put it in the hands of a receiver. I declined to allow that. I told him the proper place to liquidate that business was where it was carried on; that is, where I wanted it to be done,—at the former store. It was Van Bergen Co.’s store after that. He finally consented to that. I have no recollection of saying that I wanted to liquidate that business because I was going on with these accounts, and I wanted to attend to collection with the old customers. The reason I put forward was, I thought the business would be liquidated better and cheaper there.”

Whether a partner is entitled to compensation for winding up or liquidating the affairs of a firm, after dissolution, has arisen (1) when a dissolution has occurred by operation of law, as by the -death of a partner; and (2) when a firm has been dissolved by the agreement of the partners. In the absence of an agreement, express or implied, that a surviving partner shall be paid for winding up the affairs of a dissolved partnership, he is not entitled to compensation for such services. Johnson v. Hartshorne, 52 N. Y. 173-180; Ames v. Downing, 1 Bradf. (Sur.) 321; Denver v. Raone, :99 U. S. 355-358; Beatty v. Wray, 19 Pa. St. 516; Brown v. McFarland, 41 Pa. St. 129; Tillotson v. Tillotson, 34 Conn. 335-366. Care should be taken to distinguish between the cases arising over claims for compensation for winding up the affairs of a partnership which has been dissolved, and those arising over claims for compensation for continuing, after the death of a partner, the business of the firm, pursuant to the articles, or with the consent of the personal representative of the deceased partner, who receives the profits arising from the continuation of the business. Robinson v. Simmons, 146 Mass. 167, is a type of this class of cases. For stronger reasons, a liquidating partner in case of a voluntary dissolution of a firm, is not, in the absence of an agreement, entitled to compensation, because the condition does not arise by operation of law, but by his assent; and the rule tliat in such a case the liquidating partner, in the absence of an agreement, express or implied, is not entitled to compensation for winding up or liquidating the affairs of the dissolved firm, is too well settled to be questioned. Coursen v. Hamlin, 2 Duer, 513; Dunlap v. Watson, 124 Mass. 305; Story Partn. (7th ed.) § 331, note; T. Pars. Partn. (4th ed.) § 155, note 1; Colly. Partn. (Perkins’ ed.) § 199.

The judgment should be affirmed, with costs. All concur.