text:
    Mary Rich, Resp’t, v. John Doyenn, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Landlord and tenant — Reletting—Estoppel.
    The landlord, by reletting the demised premises for a less rent after the tenant has abandoned them without sufficient cause, is not estopped from holding the tenant for the deficiency. .
    Appeal from a judgment in favor of the plaintiff.

      Henry W. Brush, for app’lt; E. A. Hayes, for resp’t.
   Lewis, J.

This action was brought against the defendant to recover rent alleged to be due the plaintiff for the use of premises consisting of the first floor and two rooms upon the second floor of a building on Seneca street, in the city of Buffalo, under a written lease executed by the parties. The term was for three years, commencing on the 1st day of May, 1888. The rent secured by the lease was $300 a year, payable in monthly installments of $25 in advance. The defendant took possession of the leased premises, and continued in occupation thereof until the 15th day of October, 1889, when he vacated them for the alleged reason that they had, through the fault and negligence of the plaintiff, become untenantable, owing to defective sewering and plumbing, which allowed filth and water to accumulate in the cellar of the building. The defendant paid the rent as it came due, up to and including the month of October, 1889, and thereafter neglected to pay rent, The premises remained vacant for five months after defendant left them. The plaintiff then leased them to another tenant for $18 a month. This action was commenced on the 19th day of June, 1890. There was nothing in the lease requiring the plaintiff to make repairs upon the premises. It contained the ordinary clause requiring the tenant to keep the premises in good repair. The defense interposed and relied upon by the defendant was — First, that the premises had become untenantable; and second, that the plaintiff consented to cancel the lease by accepting the key of the house and taking possession of the premises. There was evidence tending to show that when the defendant took possession of the property there was water in the cellar, which was pumped out from time to time. There was no sewer in the street in front of the premises, and none in the cellar, at the time of the leasing. Afterwards, and in the spring of 1889, a sewer was constructed in the street in front of the premises, which was connected with the cellar of the house by a sewer in a proper manner, so as to drain the water from the cellar. A stench trap was put into the sewer in the cellar, which prevented the sewer gas from entering the cellar. The evidence upon this question was conflicting, as was the evidence as to whether the plaintiff accepted the key of the house and consented to cancel the lease. The referee, upon sufficient evidence, found for the plaintiff upon these questions. The lease provided that the plaintiff should construct a barn for the use of the defendant. The plaintiff failed to fully perform his agreement in that respect, and the referee allowed the defendant a counterclaim for $25 on account of work and materials which he furnished to complete the barn. Reletting the premises, under the circumstances disclosed, did not estop the plaintiff from claiming of the defendant the $7 a month difference between the amount defendant had agreed to pay and the $18 a month paid by the new tenant. Reletting the premises did not give the defendant any cause for complaint, for he was thereby benefited to the extent of $18 a month during the remainder of the term of the lease. Doolittle v. Selkirk, 58 St. Rep. 328; Winant v. Hines, 14 Daly, 187; Joslin v. McLean, 99 Mich. 480. The referee inadvertently presumably, included in the amount which he found to be due the plaintiff $7 a month for ten months after the commencement of the action, making in all $70, to which he added interest upon the sums respectively as they fell due. This was improperly included in his report and in the judgment. The judgment should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff within twenty days give to the defendant a written stipulation, consenting to reduce the judgment to the extent mentioned. In case the stipulation be so given, the judgment as so modified should be affirmed, but without cost of this appeal to either party.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Alphonse Kloh, Resp’t, v. New York Fertilizer Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Attachment — Vacation. '
    A motion to vacate an attachment is properly denied, under general rule of practice 37, for failure to specify the irregularity.
    Appeal from an order, denying a motion to vacate an attachment made on the papers on which it was granted.

      Hugh A. McTernan, for app’lt; Robert L. Stanton, for resp’t.
   Per Curiam.

The order to show cause did not state the grounds nor the irregularity complained of upon which the motion to vacate the attachment was to be made. Under rule 37 of the general rules of practice it is provided that “ when the motion is for irregularity, the notice or order shall specify the irregularity complained of.1’ In the case of Stevens v. Middleton, 14 Weekly Dig. 126, it was held that “ defects in the affidavits used upon application for an attachment, which are not specified in a notice of motion to set aside the attachment, cannot be relied upon in support of the motion.”

The order should be affirmed, with $10 costs and disbursements.


author: Parker, J.

text:
    Schillinger Fire-proof Cement and Asphalt Company Resp’t, v. William H. Arnott et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Mechanic’s liens — Fokbhdlosure—Tkial.
    Chapter 342 of 1885, which authorizes the trial of issues without a jury in an action to foreclose a mechanic’s lien, is constitutional.
    2. Same — Deposit.
    The deposit of the amount claimed with the clerk of the court does not affect the character of the action to foreclose a mechanic’s lien. The claimant, in such case, is not entitled to the money deposited until he has recovered a judgment of foreclosure against the property.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion to strike the cause from the equity calendar.

      Carlisle Norwood,, for app’lts; B. Lewinson, for resp’t.
   Parker, J.

In May, 1890, the defendants, William H. Arnott & Co., entered into a contract with Rachel Cohnfield, as owner, for the erection of a building upon her premises in the city of New York. Subsequently Arnott & Co. sublet a portion of the work to the plaintiff, the Scillinger Fire-Proof Cement & Asphalt Company. On the 19th day of January, 1891, and within ninety days after the completion of the contract, the plaintiff filed a notice of lien in the clerk’s office of the city and county of New York, in pursuance of the provisions of chapter 342 of the Laws of 1885. Two days later, and on the 21st day of January, 1891, Arnott & Co., under subdivision 2 of section 24 of said act, deposited with the county clerk a sum of money, equal to the amount claimed in the lien, with interest to the time of said deposit, and thereafter a suit to foreclose the lien was commenced. The suit coming on to be tried at a special term of this court in November, 1892, the plaintiff made a motion to amend its complaint, which was granted ; one of the conditions being that the plaintiff should consent to Arnott & Co.’s withdrawal of the sum of money which they had deposited with the county clerk, and , accept in lieu and place thereof their personal responsibility, provided they should give a stipulation to that effect, which they did, and the moneys were thereafter withdrawn. When later the suit came on for trial, a motion was made to strike the cause from the equity side of the calendar, on the ground that the defendants were entitled to a trial by jury. Section 8 of the lien law expressly provides that “ the manner and form of instituting and prosecuting any such action to judgment, or an appeal from such judgment shall be the same as in actions for the foreclosure of mortgages upon real property, except as herein otherwise provided.” And it has uniformly been held, so far as we have observed, that suits to foreclose mechanics’ liens under the act of 1855, like suits to foreclose mortgages, are triable at special term. But the appellants urge that, if it be conceded that the statute authorizes the trial of such suits at special term, the act is in such respect unconstitutional. The grounds for this contention are so clearly stated and fully met in the opinion of Andrews, J., at special term, in overruling the demurrer interposed by the defendants to this complaint, that there is no occasion for us to do more than to say that we concur in the views therein ■expressed.

The appellants further contend that, in any event, their motion should have been granted, because this case is within the rule stated in Burroughs v Tostevan, 75 N. Y. 567, and Dudley v. Congregation, 138 id. 451 ; 53 St. Rep. 19, that in an action in the nature of a proceeding in rein to foreclose a statutory lien, in which case a personal judgment against some of the parties may follow as incidental to the general relief, such judgment cannot be rendered if the plaintiff fails to establish the lien. But we do not understand that rule to be applicable to the facts of this case. This suit was brought to foreclose a mechanic's lien, and if the lien had been invalid, or for any' other reason could not have been enforced, the plaintiff, under the rule established by the authorities cited, could not have had a personal judgment against the defendants. There was no failure of lien in this action, however. On the contrary, the right to enforce it was -established by the judgment, and the property was only saved from sale to satisfy the amount due under the lien, because the defendants Arnott & Co. deposited, in the first instance, with the county clerk, the sum of money equal to the amount claimed to be due in the notice of lien, with interest to the date of deposit, for which was subsequently substituted their stipulation of personal responsibility by command of the court. The deposit of the moneys did not change the character of the suit to be brought by the plaintiff. In order to recover, it was necessary for the plaintiff to establish the validity of its lien, which could only be done by a suit to foreclose it, which should result in a judgment in plaintiff’s favor. This question was before this court in Sheffield v. Robinson, 73 Hun, 173; 57 St. Rep. 146, and arose under subdivision 6 of section 24, in which case a bond was given to discharge the lien instead of a deposit of money as in this case; but the decision in that case, and the reason for it, is alike applicable to this one. As the case stood when the court required the plaintiff to accept the stipulation of the defendants to become personally responsible for the payment of any judgment which should be recovered, and permit defendants to withdraw the money to be used in their business, the plaintiff would become entitled to the moneys after it had been determined by a judgment of foreclosure that it had a valid lien, and not before or otherwise. This situation was not changed by the act of the defendants in substituting their undertaking in place of the moneys then on deposit.

Upon the merits two questions were presented: (1) Whether plaintiff had substantially performed its contract with Arnott & Co.; (2) if so, whether the refusal of the architect to give the-certificate of performance provided for by the contract should prevent a recovery. The first question the court answered in the affrmative, and the facts adduced, which were the subject of elaborate discussion in the opinion of the special term, justified the conclusion reached. As to the second, it was decided that the refusal of the architect to give the certificate was unreasonable, and therefore not a bar to plaintiff’s right to recover. Nolan v. Whitney, 88 N. Y. 648; Thomas v. Stewart, 132 id. 580; 43 St. Rep. 881; Crouch v. Gutmann, 134 N. Y. 46; 45 St. Rep. 470. It is a significant fact that the architect issued to Arnott & Co. the necessary certificate, covering the very work which the plaintiff performed, and which entitled them, under the contract, to payment from the owner. Confronted with this fact upon his cross-examination, the architect attempted to explain how it was that he came tó issue the certificate to the contractors Arnott & Oo.r that the work had ' been properly performed, in order that they might collect of the owner, and at the same time refused to issue-a certificate to this plaintiff, in order thát it might, under its contract, recover from Arnott & Co. His explanation was, in effect, that he issued the certificate to the defendants at the request of’ the owner, in order that a settlement between defendants and the owner might be effected. But this explanation was a most unsatisfactory one, for the owner did not need a certificate in order to settle with the defendants. If she was satisfied with the work which had been done, she needed not the assistance of the architect’s certificate in order to pay for it. If she was- not satisfied, and proposed to insist upon a deduction from the contract price, by reason of faulty work, it certainly did not strengthen her position to have the architect make a certificate, which, under the terms of the contract, bound her to pay the defendants in full. The fact that the work was substantially performed, as found by the trial court, and in which finding we concur, together with the other facts contained in the record, and which were to a considerable extent commented upon in the opinion of the court at special term, j ustified the holding that the refusal of the architect to give the certificate called for by the contract between plaintiff and the defendants was unreasonable. The judgment should be affirmed,, with costs. All concur.


author: McCarthy, J.

text:
    Katharine A. Hayden et al., Resp’ts, v. Franklin Post, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed April 16, 1895.)

    Principal and auent — Liability—Presumption.
    Where a broker is apprised, pending the negotiations, that the person who employed him to sell the property is acting as the agent of his wife who is the owner, he is presumed to have dealt with the husband during the rest of the negotiations as such agent, unless there is evidence to show an original undertaking on the latter’s part to pay the commissions.
    Appeal from a judgment in favor of plaintiffs.

      Baldwin & Blackmar, for app’lt; William E. Stillings, for resp’ts.
   McCarthy, J.

The evidence shows that the property in question was owned by Lena Post at the time of-the alleged employment of the plaintiffs, and therefore pending the negotiations. It also appears that such fact was made known to the plaintiffs pending the negotiations, and long before the signing of the contract and the consummation of the exchange. The plaintiffs, having been thus apprised of the agency of Franklin Post, must be presumed to have dealt with him during the rest of the negotiations' as the agent of his wife, the owner, unless we find some evidence to show an original undertaking on the part of Franklin Post to pay for these services. Otherwise, it would be an attempt to compel him to pay the debt of another, for which he would not be liable, unless in conformity with the statute of frauds. We have carefully examined the testimony, and have been unable to find any evidence showing a promise on the part of Franklin Post to pay. We think, therefore, that the court erred in not dismissing the complaint, as to Franklin Post, at the close of the plaintiffs’ case. Of course, on the new trial, by showing either the authority of Franklin Post to act for his wife, or that she participated in the negotiations or ratified his acts by any conversation or acts on her part, Lena Post would be liable. Again, the plaintiffs may-show the amount of commission to be paid, as settled by custom,, but they cannot prove no liability or employment by custom. There must be an employment of the plaintiffs by Franklin Post, and a participation or ratification by Lena Post, the principal, in order to make her liable. If the case had been tried on this line, the plaintiffs might have been successful. Without passing further upon the other questions raised, the judgment herein should be reversed, and a new trial granted, with costs to appellant, to abide the event.


author: Van Wyck, J.

text:
    John V. O. Muller, Resp’t, v. Hatch Cutlery Company, App’lt.

      (New York City Court, General Term,

      Filed April 9, 1895.)

    Attachment — Affidavit.
    Where it is a legal inference that plaintiff’s source of information and belief as to an assigned cause of action is the assignor, the attachment will not he vacated on the ground that the material allegations of the complaint were made on information and belief, the sources of which were not disclosed.
    Appeal from an order, denying a motion to vacate an attachment.

      Walter D. Clark, for app’lt; Fred. Q. Dow, for resp’t.
   Van Wyck, J.

The defendant’s notice of motion recited that the motion was made on the “summons, complaint, affidavit,, and warrant of attachment thereon” on the ground that the papers were defective and insufficient, in that “material allegations in said complaint were made solely on information and belief, and neither the complaint nor affidavit discloses the sources of plaintiff’s information and belief or knowledge of the same.” The plaintiff sues on a cause of action assigned to him directly from the person to whom the original cause accrued, and his averment that he is entitled to recover the specified sum of defendant over and above all counterclaims “known to him” is on knowledge, and is sufficient, and in strict compliance with the Qode, and so, too, his averment of the cause of attachment, that defendant is a foreign corporation. However, the averment of the cause of action is upon information and belief, and does not specifically state the source of-the same, but does state on information and belief that one Haines, the plaintiff’s assignor, performed personal services as salesman during the year 1893 for defendant, as its request, and at an agreed annual salary of $1,200, of which no part had been paid except $600; but the allegation that Haines thereafter, and before the commencement of this action, assigned to plaintiff said cause of action, and the money due to him from defendant for “said services,” is upon knowledge, and the legal inference is that plaintiff’s source of information and belief as to the cause of action is Haines, speaking by the assignment itself; and if written, it is a •solemn declaration, over his own signature, that he had performed •such personal services for such term, at such salary, of which $600 is unpaid, for defendant, at its request; and, if oral, the same declaration must have been made by him to plaintiff, who avers upon knowledge the assigment of the cause of action, and the money due from defendant for said services. And so, too, the legal inference is that Haines had personal knowledge óf this cause of action for his personal services performed by him as salesman for defendant, because the services of a salesman can only be performed by him in person, and not by him acting through another.

Order affirmed, with $10 costs.


author: Ehrlich, Ch. J.

text:
    Rosa Chaimson, Resp’t, v. Henry Henshing, App’lt.

      (New York City Court, General Term,

      Filed April 9, 1895.)

    -Appeal — Questions op pact. Where, upon the denial of a motion for a new trial on the ground that the verdict was contrary to law and the evidence, no order was entered, only questions of law are presented for review on appeal.
    Appeal from judgment, entered on a verdict in favor of plaintiff.

      Thomas B. Osbron and H. C. Botty, for app’lt; Robert Goeller, for resp’t.
   Ehrlich, Ch. J.

The action is to recover damages for injuries by the plaintiff consequence of negligence of the defendant. The proofs were sufficient to require the trial judge to submit the questions of negligence and contributory negligence to the jury. He did so submit them as favorably to the defendant as the facts warranted, and the jury rendered a verdict for •the plaintiff in the sum of $150. On the coming in of the verdict, defendant’s counsel moved for a new trial, on the ground that the vei’dict was contrary to law and the evidence; but no order was entered on the denial of the motion. So that we are called upon to review only the questions of law presented by the record. Peil v. Reinhart, 127 N. Y. 381, 385; 38 St. Rep. 913; Wright v. Hunter, 46 N Y. 409.

We find no error of law, and it follows that the judgment appealed must be affirmed, with costs.

All concur.


text:
    Richard Searl, Resp’t, v. American Tobacco Company, App’lt.

      (New York City Court, General Term,

      Filed April 9, 1895.)

    Pleading — Demurrer—Extra work.
    Where, in action for services, the complaint alleges that plaintiff was requested by the defendant to do certain extra work in addition to that for which by the terms of the contract he was regularly employed, a demurrer admits the request and does not raise an issue as to whether such work was embraced in, and compensated by, the original employment.
    Appeal from an interlocutory judgment, overruling a demurrer to the first cause of action alleged in the complaint.

      C. G. Bullard, for app’lt; Stiefel & Lauer, for resp’t.
   Ehrlich, Ch. J.

The complaint alleges an employment of the plaintiff by the defendant as assistant bookkeeper, “ his duties to consist of checking bills and orders, making entries from the sales book into the journal, taking off a trial balance, and doing a general office work as an assistant bookkeeper;” that thereafter and about February 1, 1894, while plaintiff was employed by defendant, and was attending to his duties as assistant bookkeeper, “ he was requested by defendant to do certain extra work in addition to that for which, by the terms of the contract above mentioned, he was regularly employed.” The value of this extra work is alleged to be $280. The defendant demurs to the count for extra work upon the ground that the implication is that it was embraced in and compensated by the original employment. The argument of the defendant is a very plausible one, and is apparently sustained by many authorities. But the difficulty is that the allegation of the complaint that the plaintiff “was requested by the defendant to do certain extra work in addition to that for which by the terms of the contract he was regularly employed ” is admitted by the demurrer. It was quite competent for the defendant to make a contract for extra work, and, for all that appears to the contrary, the parties in this case did not make an express contract to that effect. If such be the case, the implications which the defendant invoked are of no moment. We think that instead of demurring, thereby admitting that the plaintiff had been requested by the defendant to do certain “extra work,” defendant should have denied that fact, thus creating an issue; and if, upon the trial, it appeared, as it perhaps might, that there was no such contract for extra work, then appellant’s authorities might have great weight, because applicable to the state of facts adduced.

For these reasons we think the demurrer was properly overruled.

The interlocutory judgment must therefore be affirmed, with costs.


text:
    William W. Wart et al., Resp’ts, v. Arnold Koan et al., Def’ts. Michael E. Duffy, as Receiver, App’lt.

      (New York City Court, General Term,

      Filed April 9, 1895.)

    Parties — Intervention.
    Where it does not appear that a person has a right to he made a party to a pending action, it is a matter of discretion with the court to determine whether he should be given permission to come in as a party.
    Appeal from an order, denying a motion to permit the receiver to intervene.

      Kohn, Ruch & Lippman, for app’lt; Arthur Furber, for resp’ts.
   Ehrlich, Ch. J.

We think there is nothing in the papers which gave the receiver, Duffy, a right to come in as a party, and that it was for the court below, in the exercise of its discretion, to determine whether he should be given that permission. The court, after hearing argument pro and con, concluded that the action might proceed to a determination without the presence of the receiver, and therefore denied the application. We think there was-no abuse of discretion. Dunlop v. Insurance Co., 74 N Y. 145 White's Bank v. Farthing, 101 id. 344; Rosenberg v. Salomon, 144 id. 92; 63 St. Rep. 62.

The order appealed from must therefore be affirmed, with costs.

All concur.


text:
    Lazarus Blaut, as Assignee, etc., App’lt, v. Max Borchardt, Resp’t.

      (New York City Court, General Term,

      Filed April 16, 1895.)

    1. Account stated — Hot conclusive.
    An account stated is simply prima facie correct and may be impeached for any error induced by mistake or fraud.
    2. Pleading — Counterclaim—Demurrer.
    A counterclaim is not demurrable in law on its face, because of the absence of a demand for an affirmative judgment in the answer.
    Appeal from an order, overruling a demurrer to a counterclaim.

      Jacob Fromme, for app’lt; Isidore Hershfield, for resp’t.
   McCarthy, J.

We think the demurrer in this case was properly overruled. The answer, although partially inconsistent, yet was consistent in the fact of the denial of an account stated, the reason therefor being matter of proof, and not pleading. An account stated is not conclusive upon either party, but is simply prima facie, presumptively correct, and may be impeached for any error induced by mistake or fraud. It then loses its force and character. Samson v. Freedman, 102 N. Y. 699-701; 2 St. Rep. 434; Goodwin v. Wertheimer, 99 N. Y. 149-154.

Again the appellant says thg-t the counterclaims are demurrable in law on their face because the defendant does not demand an affirmative judgment is his answer. But this is not necessary. See Code Civ. Proc. §§ 503, 504, 509. This last section leaves the matter in the discretion of the defendant. In the case at bar the defendant, although setting up many clams, which, when estimated together, would be in excess of the plaintiff’s only seeks to be allowed so much as will equal the plaintiff’s claim. See Code Civ. Proc. § 502, subd. 1; also, see section 501. All the counterclaims appear on the face thereof as having existed at the time of the. commencement' of the action. The defendant can only recover, however, a counterclaim which is due at the time of the making of the assignment, and this is a matter of proof at .the trial.

The order is therefore affirmed, with costs.


text:
    William E. Warmsley, Resp’t, v. Thomas A. Darragh, App’lt.

      (New York City Court, General Term,

      Filed April 16, 1895.)

    Lunacy — Effect.
    The incapacity of a lunatic before office found is available only to himself or those in privity with him.
    Appeal from a judgment in favor of plaintiff.
    Brooks, O'Sullivan & Brooks, for app’lt; Nichols & Bacon, for resp’t.
   McCarthy, J.

The making and delivery of the note in question by the defendant, as well as the indorsement thereon, in the manner claimed, by plaintiff, being admitted, the question to consider is, can the defendant in this action attack the power of attorney from Robert L. Darragh to Laura A. Darragh and Edgar L. Whitlock, under which the note in question was indorsed and assigned? The defendant says that it was made by Robert L. Darragh, and secured, while he was of unsound mind and mentally incompetent, or, in other words, while he was a lunatic, and therefore such paper is null and void, and thus Laura A. Darragh could not act under such void power of attorney. It is not contended that there was an adjudication of Robert L. Darragh as a lunatic at the time of his death, but that proceedings were commenced and pending only. The fact that such proceedings had been commenced and were pending at'the time of his death would not and did not render him incapable of either making and executing a power of attorney, or any other deed, transfer, or other instrument, and until a committee of the person and estate of the lunatic had been appointed, andan inquisition and office found, the acts of the alleged lunatic are voidable, and not void. Since none of these conditions have taken place in the case at bar,' the acts of Robert L. Darragh, the alleged lunatic, were clearly voidable only. A deed executed by a lunatic before office found is not void, but voidable only, and therefore one not in privity with the lunatic cannot allege or prove the lunacy as matter of defense. Merrit v. Gumaer 2 Cow. 552; Stucky v. Mathes, 24 Hun, 461 ; and see particularly Ingraham v. Baldwin, 9 N. Y. 45, 47, 48. If Darragh has been formally adjudicated a lunatic, and a committee of his person and estate had been appointed, the power of attorney signed by him might have been absolutely void, and therefore any assignment or transfer under that power after such adjudication might be defeated by the defendant on that ground ; but that is not this case. See Wagner v. Harriott, 10 St. Rep. 709, 711. The incapacity of a lunatic before office found is like that of an infant. Either may avoid his contract, but the privilege is personal, and no stranger can avail himself of it. An infant, by indorsement, can transfer a promissory note, and he may join in an assignment for the benefit of creditors, and no one but the infant or his legal representatives'can question the legality of the transfers, which will hold good until legally avoided: and the rights of the parties who have in the meantime been compelled to pay are protected by such transfers. Yates v. Lyon, 61 N. Y. 344; Ingraham v. Baldwin, supra; Tilyou v. Reynolds, 108 N. Y. 558, 567; 13 St. Rep. 853. It therefore follows that, since the defendant is not permitted to attack the power of attorney, the assignment and transfer made thereunder by Laura A. Darragh are valid and binding, unless there is some provision in the power of attorney requiring that as to the matters involved herein it must be the joint act of Laura A. Darragh and Edgah Whitlock. It provides that as to certain acts they must be done jointly, but as to others they maybe done singly ; and from our examination we are satisfied that Laura A. Darragh had the right to act singly in the case at bar. The j udgment should therefore be affirmed, with costs.


author: Giegerich, J.

text:
    Bartolemy J. Olifiers, Pl’ff, v. Perry Belmont et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed April 21, 1895.)

    Officers — Ooktracts—Personal liability.
    Members of the committee, appointed under chap. 331 of 1892, do not, render themselves personally liable by making, on behalf of the committee, a contract which, because made in excess of their powers, is not binding-upon such committee. . ■
    Demurrrer to the complaint.

      Leavitt, Wood & Keith (John Brooks Leavitt, of counsel), for pl’ff ; Bowers & Sands (Charles N. Harris, of counsel), for def’t Belmont; Chandler, Maxwell & Philip (Harry Van Ness Philip, of counsel),, for def’t Chandler.
   Giegerich, J.

The complaint alleges: That, in and by chapter 331 of the Laws of 1892, the mayor of the city of New York was authorized and directed to appoint, within ten days after the said act became a law, a committee of one hundred citizens of that-city to conduct, manage, and direct the celebration therein of the four hundredth anniversary of the discovery of America. The said mayor duly appointed said committee. That said committee of one hundred appointed an executive committee of twenty-five members, which, subject to the rules and regulations of said committee of one hundred, had full power to act in its place and stead, and to which was delegated the power to enter into contracts for the expenditure of money necessary to the carrying out of the provisions of this act, and said executive committee was authorized to appoint all subcommittees it might deem necessary. That at a meeting of the said executive committee held on the 1st day of June, 1892, one 0. Gr. F. Wahle, Jr., was duly elected its secretary, and that a subcommittee was appointed, to be known as the “Art Committee,’’ consisting of the defendant Perry Belmont, Robert J. Hoguet, and J. Armstrong Chandler, together witli Messrs. D. F. Appleton,Alberts. Bickmore, MorrisK. Jessup, Daniel Gr. Thompson, and L. P. di Cesnola. That on or about the 24th day of August, 1892, the defendants in this action got together, and, in conjunction with a number of persons, not members of said art committee, and in the absence of the other members of the last mentioned committee, they, said defendants, assumed to act as the said art committee, and as if they formed a quorum thereof, and .resolved “to order 400,000 lampions from Olifiers.” That the plaintiff, prior to such meeting, had furnished to said committee, at its request, an estimate for the manufacture and delivery of such lampions, fitted with hangers and chains, at a cost of $80 per 1,000, and agreed that he would take back unbroken glasses at the rate of $10 per 1,000. That after the adoption of said resolution Secretary Wahle wrote the following letter to the plaintiff :

“Avgust 26, 1892.
“B. J. Olifiees, Esq., 85 Orient Ave., Brooklyn, JST. Y. — Dear Sir : Replying to your favor of the 22d inst., I desire to say that at a meeting of the art committee last night held it was resolved to request you to make 400,000 of the lampions, fitted with hangers and chains, at $80 a thousand, on condition that you will take back the unbroken glasses at $10 a thousand. I do not want you to come here and tell me that it will be impossible to do this, for you must do it. I wish you would let me know when you will be able to deliver the first 200,000.
“Very truly yours, Chas. Gf. F. Wahle, Jr., Secretary.”

The complaint further alleges that the plaintiff, supposing that said resolutions had been duly passed at a due and proper meeting of the said art committee, and replying upon the same as an acceptance of his estimate so furnished to said committee, and accepting the said order thus emanating from said committee as an order in due and proper form on behalf of the said committee of one hundred for said 400,000 lampions, began at once the manufacture of said lampions, entered into contracts for the glasses, tallow, wick, and other material to make the same, and was proceeding with such manufacture, when, on or about the 31st day of August, 1892, he was requested to stop his work by the following letter from Mr. Wahle

“August 30th, 1892.
“ B. J. Olifiers, Esq., 85 Orient avenue, Brooklyn, N. Y.
“Dear sir. — Please stop at once your work on the lampions ordered by the committee. You will hear further from me in two or three days.
“Very truly yours,
“ Chas. Gf. F. Wahle, Jr., Secretary.”

The complaint further alleged that on or about the 2d day of 'September, 1892, said Wahle notified the plaintiff that there was •a mistake, and that he should furnish 40,000 instead of 400,000 lampions, as appears by the following letter:

Sept. 1st, 1892.
•“Mr. B. J. Olifiers, 85 Orient avenue, Gfreenpoint.
“ Dear sir. — The order of the lampions should read 40,000, and mot 400,000. Please go ahead with this order, and when the same is completed and approved you will receive a voucher for the same.
“ Very truly yours,
“ Chas. Gf. F. Wahle, Jr., Secretary."

The complaint further alleges that the plaintiff at once took ¡steps to lessen, so far as he could, the damages resulting from the mistake; that he obtained a release, as to 200,000 of the glasses, ■of a contract he had entered into for the whole 400,000, but, as to the manufacture of the first 200,000, it had proceeded so far that he was obliged to complete the same, and plaintiff did complete the same, the said secretary promising that the committee would help plaintiff to sell them ; that thereafter the said executive committee did accept from the plaintiff 40,000 of said lamp-ions, and reduced his damage to that extent; that by reason of the action of the defendants, as aforesaid, plaintiff sustained large damages, as shown by a bill of particulars annexed to the complaint, which contains a statement of the items by which plaintiff succeeded in lessening his damages, and that the amount of the plaintiff's damages at the present time is the sum of $13,054.35, no part of which has been paid. Plaintiff demands judgment against the defendants for $12,703.96, with the interest from October 1, 1892.

The defendant Belmont demurred to the complaint upon the following grounds:

1 (1) That there is a defect of parties defendant, in that D. F. Appleton, Albert S Bickmore, Morris K. Jessup, Daniel Gr. Thompson and L. T. di Oesnola, the other members of said art committee, mentioned in the complaint, and Charles Gr. F. Wahle, are not made defendants.

“ (2) That the complaint does not state facts sufficient to constitute a cause of action.

(3) That several causes of action have been improperly united, —one being upon a contract of sale, a second in contract upon an implied warranty, a third in tort for fraud, and a fourth in tort for negligence of a public officer.”

The defendant Chandler also demurred on grounds the following; _

_ “ (1) That there is a defect of parties defendant, in that Messrs. I). F. Appleton, Albert S. Bickmore, Morris K. Jessup, Daniel ■Gr. Thompson, and L. P.'di Cesnola and C. Gr. F. Wahle are not made defendants herein.

“ (2) That several causes of action have been improperly united, —the first being a claim on contract of sale; and the second a claim on contract for breach of an implied warranty; and the third a claim in tort for fraud; and the fourth a claim in tort for negligence.

“ (3) That the complaint does not state facts sufficient to constitute a cause of action.”

The plaintiff also seeks to charge the defendants upon the theory that one who assumes to act for a principal without authority, and draws another into a contract upon the assumption of such agency, is liable to an action in favor of the party injured. Dung v. Parker, 52 N. Y. 494. But, as was said by the court in Hall v. Lauderdale, 46 N. Y. 70, 75:

“ The rule that the agent is liable when he acts without authority, is founded upon the supposition that there has been some wrong or omission on his part, either in misrepresenting or in affirming or concealing the authority under which he assumes to act.”

In that case the question was the authority possessed by a board of supervisors, and the court held that “ the boundaries of their power were known as well to the plaintiff as to the defendant.”

One who deals with a public agent is charged with knowledge of the law conferring his authority. Mayor, etc. of Baltimore v. Reynolds, 20 Md. 1; Clark v. Des Moines, 19 Iowa, 199; White-side v. U. S., 93 U. S. 247; Mechem, Pub. Off. § 809, note 2, and citations. In the present case the powers of the committee could have been ascertained by the plaintiff by a reference to the public statute (chapter 331, Laws 1892), from which' he would have learned that “ the power to make contracts involving the expenditure of money ” could be delegated by the committee of 100 only to the executive committee.

The rule applicable to such cases is stated by Judge Dillon, in his work on Municipal Corporations (volume 1, at page 264, note), to be as follows :

“ When the officers of a public or municipal corporation act officially, and under an innocent mistake of the law, in which the other contracting party equally participated, with equal opportunities of knowledge, neither party at the time looking to personal liability, the officers are not in such case personally liable, nor is the corporation liable.”

Which statement is supported by a citation of numerous authorities:

In Story on Agency (7th ed.) at section 307a, note 1, p. 380, the learned author says:

“ It has always seemed to us that the result of all the cases upon this point would not involve a public officer in any personal responsibility where he was understood to be acting in his • official capacity, and not intending to assume any personal responsibility, and all the facts in regard to the extent of his authority were made known to the party with whom he contracted at the time of the contract, or where the authority was matter of public record, and personally known to the other party. In such cases,, the promisee must take the risk of the promisor, being able to bind his principal.”'

In Sanborn v. Neal, 4 Minn. 126, 139 (Gil. 83), Emmett, C. J., in speaking for the court, said :

“ When public agents, in good faith, contract with parties having full knowledge of the extent of their authority, or who have equal means of knowledge with themselves, they do not become individually liable, unless the intent to incur a personal responsibility is clearly expressed, although it should be found that through ignorance of the law they may have exceeded their authority. * *■ * In this, as in other cases, the intention of the parties governs, and, when a person known to be a public officer contracts with reference to the public matters committed to his charge, he is presumed to act in his official capacity only, although the contract may not in terms allude to the character in which he acts, unless the officer, by unmistakable language, assumes a personal liability, or is guilty of fraud or misrepresentation. Being a public agent, with his powers and duties prescribed by law, the extent of his powers is presumed to be as well known to all with whom he contracts as to himself. When, therefore, there is nq want of good faith, a party contracts with such an officer with his eyes open, and has no one to blame if it should afterwards appear that the officer had not the authority which it was supposed he had.”

The foregoing extract is quoted by Mr. Mechem in his treatise on the Law of Public Offices and Officers, at section 809, and he cites numerous authorities in support of the statements therein contained. To the same effect as the case above cited are the cases of McCurdy v. Rogers, 21 Wis. 197; 91 Am. Dig. 468; Steamship Co. v. Harbison, 16 Fed. 688; and those cited under a note to 91 Am. Dec. at page 471. In Newman v. Sylvester, 42 Ind. 106, 113, Osborne, C. J., in speaking for the court, said:

“If his authority to act-is defined by public statute, all who contract with him will be presumed to know the extent of his authority, and cannot allege their ignorance as a ground for charging him with acting in excess of such authority, unless he knowingly mislead the other party.” ■ '

It follows,, therefore, that the defendants cannot be charged personally simply because they failed to bind their .principal, as no intention to interpose their personal responsibility can be presumed from the fact of such failure. Neither does the complaint aver such an intention, or any facts which would warrant an inference thereof, nor is misrepresentation or bad faith alleged. The conclusion thus reached upon the authorities is equally consonant with reason and public policy. It would be difficult to secure competent men to serve the public in many important capacities, should it be held that they did so at the peril of their private for: tunes in case of any mistake as to the scope of their authority. The defendants gratuitously rendered public service of an onerous nature, and no hardship is apparent in the requirement that one dealing with them, with a view to private gain, should assume the risk attendant upon his failure to inform himself as to the extent of the powers conferred upon them by public statute. These views dispense with the necessity of considering the objections of nonjoinder of defendants and misjoinder of causes of action, and it follows, therefore, that the demurrers should be sustained, with costs, with leave to the plaintiff to amend within twenty days upon payment of costs.


author: Bookstaver, J.

text:
    Charles F. Winch, Pl’ff, v. Farmers’ Loan and Trust Comany, as Executor, etc., et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed April, 1895.)

    1. Pleading — Demurrer.—Presumption.
    It will not be presumed on demurrer, where the complaint relies distinctly upon a writing pleaded therein and gives it a meaning not warranted by its terms, that other written evidence will be produced on the trial to support such meaning.
    3. Contract — Contruction.
    An agreement to give plaintiff bonds of a gas company in return for information was held, in this case, to refer to a company proposed to be incorporated, and not to an existing company.
    Demurrer to the complaint.
    The plaintiff, for an amended complaint, complaining of the defendants, alleges: First. That heretofore, at the city of New York, and on or about the 4th day of March, 1890, Benjamin F. Sherman and Henry E. Fanshawe, for valuable consideration, entered into an agreement, in writing, with the plaintiff, a copy of which is hereto annexed, and made a part of this complaint, wherein and whereby, in consideration that the plaintiff would impart to them certain valuable information requested by them, they agreed to pay to the plaintiff five bonds of a certain gas company therein referred to, meaning the Equity Gaslight Company of the Eastern district of the city of Brooklyn, at the par value of five thousand ($5,000) dollars, as soon as issued or printed by the said company, and secured by first mortgage on the gas works of said company. Second. That thereupon the plaintiff then and there imparted to the said Sherman and the said Fanshawe the said information requested by them, and he otherwise duly performed all of the conditions of said agreement on his part. Third. That thereafter, and on or about the 29th day of October, 1890, the said Benjamin F. Sherman died, leaving a last will and testament duly proved on or about the lltb day of December, 1890, before the surrogate- of the city and county of New York, and recorded in Liber 445 of Wills, at page 178, etc., wherein the defendant the Farmers’ Loan and Trust Company, a domestic corporation, duly chartered under the laws of the state of New York, for such purpose, was named as executor of the said last will and testament; and the said defendant the Farmers’ Loan and Trust Company thereupon entered upon the performance of its duties as executor as aforesaid. Fourth. That thereafter, and on or about the 1st day of July, 1891, the said Equity Gaslight Company of the Eastern district of the city of Brooklyn, printed and issued its bonds, secured by a mortgage on its gas works. That the defendants, and . each of them, have failed to deliver to the plaintiff the five bonds as agreed, or any bonds whatever, after due demand on the defendants, and each of them, to the plaintiff’s charge in the sum of five thousand ($5,000) dollars; and he is informed and believes that the defendant Fanshawe is insolvent, and a judgment against him alone could not be satisfied. Wherefore the plaintiff demands judgment against the defendants, and each of them, for the sum of five thousand ($5,000) dollars, with interest thereon from the 1st day "of July, 1891, besides the costs of this'action.
    Dated New York, February 2Sd, 1895.
    Edward Swann, Plaintiff’s Attorney, 71 Broadway. New York
    City.
    New York, March 4th, 1890.
    Whereas, we, the undersigned, for ourselves and others in interest, propose the formation of a gas company in Brooklyn, or for operation in Brooklyn of a company already formed; and whereas Charles F. Winch, of New York, is in possession of certain information which, if imparted to us, is likely to be of value to us: We hereby agree, in consideration of said Winch having given to us such information, to give said Winch five (5) bonds of a first mortgage of said gas works or said company, making a par value of five thousand dollars in the best of any securities issued and payable as soon as issued or printed. It is understood that said information is of a-character to directly affect the validity or operation of a certain contract or agreement now made or in progress of making between us and the owners or supposed owners of a charter or franchise, commonly known as the Equity Charter or the Equity Company of Willi&mburgh, Brooklyn.
    B. F. Sherman.
    Hy. E. Fanshawe.
    Winess: E. M. Carroll.

      Edward Swann, for pl’ff ; Sullivan & Cromwell, for def’t Fanshawe.
   Bookstaver, J.

The complaint relies distinctively and unmistakably, upon the written contract exhibited upon its face, and attempts to make out a cause of action by placing a certain interpretation upon that contract, which interpretation is not, in my opinion, warranted by the language used. The defendants agreement was “to give said Winch five bonds of a first mortgage or said gas works or said company.” The words “said gas works of said company” clearly refer to a gas company “to be formed in Brooklyn or for'operation in Brooklyn,” or to ‘‘a company already formed” to be operated in Brooklyn. The last clause of the contract, which mentions the “Equity Gras Company of Williams-burgh, Brooklyn,” is quite evidently for the purpose of characterizing the information to be given, and not to specify the company meant. If the-intention had been to agree to give the plaintiff bonds of the Equity Company, it would have been easy to say so in so many words; but, instead of such direct and definite expression, the parties ex industria employ language which is indefinite and descriptive, and naturally so, because it is plain that their plans were at the time uncertain and contingent. It should be observed that the language is very guarded, in that the defendants did no agree or undertake, but only proposed, to form or operate a gas company. The plaintiff’s compensation was to be in bonds of such company, unascertained at the time, when they should at last have formed or operated it. He should therefore allege that the defendants formed or operated a company of the kind described. I do not think that the complaint could be saved by paroi proof upon the trial that the parties meant the Equity Company instead of one unascertained at the time. Such proof would be inadmissible as varying or contradicting the writing.

Neither is there any room for the presumption, in support of the complaint, that other written evidence will be produced upon the trial. The pleader relies too distinctly and unmistakably upon the particular writing pleaded. In this respect the case differs from Cahill Iron Works v. Pemberton, 27 N. Y. Supp. 932. There the allegation was that the consideration for the guaranty sued upon was the plaintiff’s agreement to renew certain promissory notes, and it was held that notwithstanding the fact that certain writings, which were pleaded as guaranties, failed to state any consideration, it would be presumed that other writings would be forthcoming upon the trial, and that those set forth should be disregarded as being a pleading of evidence, and therefore surplusage. Here the allegation is not that there was an agreement to give the plaintiff bonds of the Equity Company, but that a certain writing set forth had that meaning.

Upon the appeal in this case the attention of the general term was concentrated upon the refusal to allow any amendment to the complaint, which it held to be error and, as leave was given to amend, it was not deemed necessary to discuss the question now raised. The demurrer should therefore be sustained, with leave to the plaintiff to amend, if so advised, upon the payment of costs of demurrer only.


author: Bradley J.

text:
    Falding W. Skinner, Resp’t, v. Frederick Odenbach, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Evidence — Dbcbakations.
    The declarations of the occupants of portions of a tract of land as to the boundaries, made upon the land in pointing out the line, are in practical effect evidence only of the extent of their possession, and not of title, other than such as might be inferred from the occupancy.
    Appeal from a judgment in favor of plaintiff.

      Edward Harris, for app’lt; John Van Voorhis. for resp’t.
   Bradley J.

The action is to recover an undivided two-fifths of a parcel of land in the town of Greece, county of Monroe. In 1803, township No. 2, short range, west of Genesee river, consisting of upwards of 22,000 acres, and owned by Sir William Pul ten ey and others, was, by survey made by William Shepard, divided into lots, numbered from 1 to 62 inclusive. This division was represented by a map made by Shepard ; and by a partition deed made by the owners of the land in 1804, lot Fl¡p. 54 was set off to Benjamin Crosby, and lot No. 62 to Joseph Annin. It may be assumed that the survey and map were made in contemplation of the partition, which, as appears by the deed,- was made according to them. That township then was comprised in that portion of the territory of the county of Genesee which afterwards was included in the town of Greece, county of Monroe. Through mesne conveyances from Crosby, title came to John Berger, in 1851, of that part of lot 54, lying between Braddock’s Bay and Lake Ontario. In 1872, Berger made contract of sale of it to Adelie Skinner, wife of Eoswell W. Skinner. She died before performance of the contract, and after-wards, in November, 1875, Berger conveyed the land to those who were the heirs of the vendee, of whom the plaintiff was one. The finding of the referee that the land in question was within that so conveyed necessarily resulted in his conclusion that the plaintiff was entitled to recover. The contention of the defense is that the land in the possession of the defendant is in lot No. 62. And in view of the fact so found by the referee, and of the exception to such finding, and to his refusal to find to the contrary, the only question on this review for consideration of the merits is whether or not the conclusion that the premises in controversy are in lot No. 54 was fairly supported by the evidence. The eastern and north-eastern boundary of both those lots is Lake Ontario. They join, and 62 is north of 54. The south-easterly corner of the latter is not questioned, and its shore, or easterly, line, is described in the survey of Shepard as sixty-one chains and twenty-five links in length. If such is the length of that line of lot 54, it is quite clear that the land in question is in that lot. But it is otherwise if, as claimed on the part of the defendant, such line is ten chains shorter than that. While there is evidence to the effect that some alteration appears to have been made in producing the figure 6 in 61, and that it may have been changed from 5 to 6, the inference is warranted upon the evidence that, from whatever may have been thp alteration, it was corrective in purpose, and made by Shepard at the time he made his field notes. In them is the only place in which the figures indicating courses and length of lines of his survey appear. The map gives without figures the traverse by lines of the lots. The defendant sought to controvert the fact that the length of ihe shore line of lot 54 was sixty-one chains twenty-five links, and to sho w that it was only fifty-one chains twenty-five links. And for that purpose attention was called to the field notes, in which the monument at the south-east corner of 62 and the north-east corner of 54 is described as an oak tree, “ near the outlet of Braddock’s Bay,” and again as a “ black oak on the beach of the lake and Braddock’s Bay, m’k’d ‘S. Side No. 54, N. W. No. 62.’ ” There is no evidence other than that furnished by the field notes that any such tree was standing at the northerly end of the shore line sixty-one chains twenty-five links from the southeast corner of lot Ho. 54. The field notes also represent the course of the line running westerly from that corner between lots 54 and 62 as south, 73-£ degrees west, which is not the appropriate course of a line between those lots from the north end of a line sixty-one chains twenty-five links in length. The defendant then gave evidence tending to prove that there had been an oak tree a short distance south of the land in question, having some marks upon it, and which, as one witness testified, was eight rods from the lake shore. In view of all the evidence relating to an oak tree at the place, and bearing upon that .subject, the referee was permitted to conclude, as he did, that such tree was not the shore corner of lots 54 and 62, or on the line between those lots.

A surveyor, who sought to locate on the ground the lines of lot -54 as established by Shepard’s survey, was called as a witness on the part of the plaintiff, and testified to the effect that in proceeding to do so he examined and ran the lines of several lots in the tract in the manner and for the purpose mentioned by him, to which it is deemed unnecessary here to specifically refer. He made a map, by which it appears that in running the shore line of lot 62 from its north-west corner he omitted to describe the last two courses and distances represented by Shepard’s field notes. On his cross examination his attention was called to it, and he testified that the traverse of the lake front of lot 62 as given by Shepard in his field notes ran down further south than the north-east , corner of lot 54, and to a point south of the defendant’s hotel. Those last two lines, as described in the field notes, were “ S., 30 deg.W., 9, 50,” 11 S., 7 deg. W., 6, 48.” By an examination of the map of the witness it is seen that the shore line of 62 is represented as extending considerable distance southerly from the line of the last course there given by him. He further testified that when he got there he couldnot tell where to go by Shepard’s notes, whose survey he found would not balance up; and he did not and could not draw it any further, because his courses and distances wonld not balance, and for the further reason that the courses would be out in the lake, that the lines as surveyed by Shepard has been washed away, and the best that could be done was to plat his survey upon a map. That is what he attempted to do, and Shepard’s notes would not balance on 62. The view of the witness was that there was some error in the description of Shepard’s, field notes of the southern portion of the shore line of lot 62. He assumed that the shore line of lot 54 had the length described in the field notes, and that the description of the line between those lots, as “S. 73J deg. W.” was erroneous. He further testified that by the scale whicli he adopted of Shepard’s map the length of the shore line of lot 54, as represented by the map, was at least sixty-one chains and twenty-five links. There evidently is-a mistake somewhere in Shepard’s field notes in relation either to the shore line of 'lots 54 and 62, or in the course of the line between those lots. The- witness refers to a map of the subdivision of lots 60 and 62 into seven lots, made by Benjamin H. Brown, prior to 1835, and to a survey of the eastern part of lot 6 of that subdivision (which is in lot 62, and bounded easterly by the lake), made by Austin Spencer, in 1847; and, as the witness understands them, those surveys correspond with those of the witness in the location of the line between lots 54 and 62, and the survey of Spencer describes its course as south, sixty-six degrees west; and as a verification of Brown’s survey, in support of such location of that line, reference is made to ins map, and the scale on which it was made. There is no black oak tree on it near that, line as it approaches the lake, but it appears that there was, shortly before the trial, in 1893, an elm tree standing there, as described by the surveyors, nearly three feet in diameter, having a surveyor’s mark nearly grown over, a portion of which he cut out and produced at the trial; and he added that, in his judgment, those marks were made in the neighbourhood of ninety years before. The survey of this portion of the tract was made by Shepard in the latter part of November and fore part of December, 1803. And there is some evidence tending to prove that when the elm is without leaves, (as it is that season of the year) a casual observer may not distinguish it from oak. It is possible that the suggestion is applicable to the early surveyor, although he was familiar with the woods and the various kinds of timber in that locality. The importance of great care and accuracy in representing the lines and corners of the lots may not then have been as apparent as it has since become by reason of increased value of the land. It may be observed that in the contract of Berger with Adelai Skinner, and in his deed to the plaintiff and others, before mentioned, the easterly or lake-shore line of lot No. 34 was described as sixty-one chains and twenty-five links in length.- The parcel of land so conveyed was subdivision lot 4 of lot 54 as subdivided by Yalentine Bros, in 1818. And the deed from the Bank of Monroe to Charles Rhodes, of date June, 1848, conveyed the east part of subdivision-6 of lot 62 as surveyed by Spencer, to which survey reference has already been made. There is evidence on the part of the plaintiff to the effect that the south line of the land so conveyed was the line between 54 and 62. And the plaintiff also gave evidence-tending to prove that from and after the time that Berger took his deed, in 1851, the lands so conveyed to him and Rhodes were treated by the occupants as adjoining, and that the contested line, which, as the northern boundary of lot 54, would include the land in question in that lot, was by occupation, acts, and declarations of the occupants for more than twenty years recognized as the line, between their lands.

It may be observed that some difficulty in reproducing the line along the lake as it was represented by the survey of 1803 may have been occasioned by the fact that during the period subsequent to that survey the land along the shore to considerable extent, as well as timber, had been taken away by the action of water. And some uncertainty at this late day very likely exists as to the precise locality of some of the lines of the survey then made by Shepard in dividing that large tract of land into lots. It is a matter of common observation and experience that the courses and distances as represented by the early surveys in forests are not entirely correct, and that monuments of such surveys, when found and well identified, are much more reliable and satisfactory. The present case is an illustration of the opportunities which those surveys furnish for controversey about lines, and the doubt and; difficulty which in such cases may attend judicial determination.

The defendant obtained, in 1890, the deed under which he claims. Whether or not his grantors had or he took by their deed title tO' any land in lot 62 is not the subject of inquiry on this review, only as it incidentally arises in considering the question of the location of the line between that lot and lot 54. Treating the land in question as in the latter lot, it is difficult to see that the gran tors of Frisbee, who made the deed to the defendant’s grantors, had title to any land in lot 62. The learned referee gave at some length his reasons for the conclusion that it was in lot 54. The question was one of fact. And the view here taken is that the finding of the referee that the land in controversy was in lot 54 is fairly supported by the evidence. The declarations of the occupants, made upon the land, in pointing out the line, were in practical effect evidence only of the extent of their possession, and not of title, other than such as might be inferred from the occupancy. This was not error. Jackson v. Mc Call, 10 Johns. 377; 3 Washb. Real Prop. (4th ed.) 427. There was no error on the trial to the prejudice of the defendant.

The judgment should be affirmed.

All concur.


author: Bradley, J.

text:
    Buffalo Press Club, App’lt, v. James W. Green, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 12, 1895.)

    Contract — Consideration.
    An agreement to compound, stifle, or suppress a criminal prosecution for a felony cannot constitute a valid consideration, and a contract based upon such a consideration is void.
    Appeal from a judgment in favor of defendant.

      Simon Fleischmann, for app’lt; Frank C. Laughlin, for resp’t.
   Bradley, J.

The action is upon an instrument under seal, executed by the defendant and others, by which they guaranteed and became sureties severally, in limited amounts, for the payment of an indebtedness to the amount of $900 of Charles L. Lancaster to the plaintiff. The consideration expressed in the agreement was one dollar, and the forbearance of proceeding by civil action to collect from Lancaster for two years. The defendant alleges that the consideration was the promise of the plaintiff to delay and stifle the criminal prosecution before then instituted against Lancaster by indictment for grand larceny, founded upon the charge of appropriating to his own use the money of the plaintiff, of which he was treasurer; and the trial court, found that such was the consideration. This finding was supported by the evidence in so far that Lancaster’s proposition to pay a specified sum of such indebtedness, and procure such undertaking of guaranty, was accepted by the plaintiff with the understanding that he should be released from the custody in which he then,was, and the prosecution upon the indictment suspended. The preliminary payment was made, and the agreement of the defendant and others executed and delivered. Lancaster was thereupon released from custody upon his own recognizance. This was done at the instance of the plaintiff, through some of its members representing it in that behalf, to enable Lancaster to seek service, and obtain the means of making payment to the plaintiff as contemplated. The plaintiff was at liberty to accept the obligation of sureties for the payment of the amount of the liability of Lancaster for the deficit, notwithstanding the pendency of the criminal prosecution, and it would be effectual unless rendered invalid by an agreement on the part of the plaintiff to seek to delay or stifle the prosecution. City of Cohoes v. Cropsey, 55 N. Y. 685; Barrett v. Weber, 125 id. 18; 34 St. Rep. 358.

It is a rule of the common law that an agreement to compound, •stiflle, or suppress a criminal prosecution for a felony cannot constitute a valid consideration, and that a contract based upon such si consideration is void. It is deemed a matter of public policy, involving the welfare of society, that persons should not, by motives of pecuniary interest, be permitted to interfere with, impede or prevent prosecutions for felony and other offenses of a public nature. Bank v. Mathewson, 5 Hill, 249 ; Conderman v. Trenchard, 58 Barb. 165 ; Conderman v. Hicks, 3 Lans. 108. It is urged that this doctrine is not applicable to the contract made by the defendant and others, because it does not appear that.there was any consideration for the undertaking other than that expressed in it, which was a valid one. It is true that it does not appear that any agreement on the part of the plaintiff, or any one in its behalf, lo use any means or effort to relieve Lancaster from criminal prosecution, or to delay or suspend it, was communicated to the defendant or to those who with him executed the agreement; but that .agreement was obtained by Lancaster to carry out his proposition, .and was accepted by the plaintiff, and the consideration upon which it was -procured by him, and delivered to the plaintiff, was Shat before mentioned, as found by the trial court. The contract was infected with the taint of the consideration upon which, as between the plaintiff and Lancaster, it was obtained 'by him or in his behalf, and delivered to and accepted by the plaintiff; and therefore the defendant’s undertaking, was not disconnected with the illegal purpose, nor was it founded upon a new or independent consideration. In the opinion of the trial court, delivered by Judge Titus, the reasons for the conclusion there reached are so well and fully stated as to render any addition to them quite unnecessary on this review.

The judgment should be affirmed.

All concur.


text:
    Holly Manufacturing Company, Resp’t, v. Clarence H. Venner et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895).

      1. Deposition — Discovert and inspection.
    A member of a late firm does not excuse his failure to comply with an order to produce its books by stating that the books, several months before, had been removed from his office in New York to a vault in Boston, and that, though they had arrived and been put into the vault, he could not find them.
    3. Same.
    What facts were held a good and sufficient excuse for the copartner in not producing the firm' books in compliance with such an order.
    Appeal from an order directing the defendants to make discovery and allow inspection of firm books.

      E. C. Sprague, for app’lts; T. E. Ellsworth, for resp’t.
   Bradley, J.

The action is in the nature of a creditors’ bill founded upon judgments recovered by the plaintiff against the American Waterworks Company, an Illinois corporation, in June and July, 1892, upon an indebtedness existing prior to July 25, 1891. The plaintiff alleges that on that day a transfer was made by that company of all its property to another company, having the same name, incorporated in New Jersey; that thereupon the New Jersey company issued to the Illinois company its preferred and common stock, which was by the latter company distributed among its stockholders; that there was no other consideration for the transfer; that the firm of C. H. Yenner & Co. composed of the defendant Clarence H. Yenner and AYilliam A. Underwood, was •one of such stockholders, and that each of those copartners received a certain number of shares of the stock of the New Jersey company, without consideration; that shortly thereafter the firm of C. H. Yenner & Co. was dissolved, and another firm of the same name, composed of Clarence H. Yenner, George P. Toby, and Frederick II. Mills, was organized ; that this firm assumed all of the debts and liabilities of the other, and, as the consequence, owed the Illinois company $40,000. These transactions are alleged to have been a scheme 'intended to defraud the creditors of the Illinois company. The purpose of the discovery sought is to fur. nish evidence in support of the matters alleged; and it is repre. seated by the" petition that the plaintiff has no other means of obtaining the evidence to prove the facts essential to the substantial relief for which the action is brought. *

The provisions of the statute on the subject are substantially the same as were those of the Eevised Statutes. It is provided that an order for discovery and in default to show cause may be-vacated “ upon satisfactory proof by affidavit (1) that it ought not, to have been granted; or (2) that the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document or other paper directed to be produced or inspected.” Code Civ. Proc. § 806.

The defendant Venner, in his affidavit, in answer to the matters' alleged in the petition, states that the books mentioned in the petition were not, nor were any of them, in his possession or under his control. Under such circumstances, the proof by affidavit of such facts would be deemed sufficient to fairly require the vacating of an order for discovery or for denial of the prayer of the petition on. which it is obtained, because the question of possession or control or power to produce is a matter resting in the personal knowledge of the party against whom the proceeding is directed. Hoyt v. Bank, 1 Duer, 652; Woods v. De Figaniere, 25 How. Pr. 523; Ahoyke v. Wolcott, 4 Abb. Pr. 41; Bradstreet v. Bailey, id. 233 ; McIlhanny v. Magie, 13 Civ. Proc. R. 16.

In the present case the books in question, of the firm of C. H. Tenner & Co., were until some time in 18.93 in the office where the business of the firm had been transacted in the city of New York,, and of which Venner was an occupant. In the summer of that year the defendant Venner was examined in proceedings supplementary to execution instituted by the plaintiff, and by subpoena duces tecum, he was required to produce those books on his examination. He there stated that from three to five months before-then the books were removed to the vault of the office in the city of Boston, in charge of his brother George, for want of room in the New York office, and because they were not in active use. At a. later day to which his further examination was adjourned, he stated, in substance, that he had been to Boston, and that, although the books had reached there and been placed in the vault, they could not be found ; that he had made search and inquiry for them in vain. He said that the books were sent to the Boston office-upon his suggestion. In a proceeding to punish him for contempt for not producing the books pursuant to that subpoena, the reasons-given by him for his default were not deemed satisfactory to the-court, and the determination that he was in contempt was .sustained on review. Matter of Holly Manufacturing Co. v. Venner, 74 Hun, 458 ; 57 St. Rep. 230. His statement on the subject in Ms affidavit in this proceeding adds substantially nothing to that in the other proceeding On the subject. He states that he has done everything in his power to discover the whereabouts of the books, has searched the vault in Boston, and made diligent inquiry of all persons who would be likely to know about them. What he says about his inability to produce the firm books is applicable alike to his individual account books, of which discovery and inspection are sought. He says that he had no recollection of seing them since October, 1892, at which time his office was moved from one set of rooms to another, in Ho. 33 Wall street, Hew York. There is certainly some mystery about the disappearance of all those books which the plaintiff desires to inspect. There is no apparent reason, and none given, why any person hostile to the defendant Tenner would care to take away the books, or conceal them from him, to his prejudice. The circumstances are such as to justify the inference that the disposition made of the books, whatever it may be, was not in hostility to him, or intended to thwart any purposes desirable on his part. It is not seen that the discretion of the court was improperly exercised by the conclusion that the defendant has not satisfactorily accounted for his nonproduction of the books, and that his failure to do so was evasion. Hicks v. Charlick, 10 Abb. Pr. 129; Fenlon v. Dempsey, 21 Abb. N. C. 291 id.; 19 St. Rep. 231; Perrow v. Lindsay, 52 Hun, 115; 22 St. Rep. 474.

The relation of the defendant Toby to the books of the firm of C. H. Venner & Co., of which he was a member, is somewhat different. His affidavit is to the effect that the firm was dissolved July 31, 1892, and since that time; and after August 1st of that year, he had been only an occasional visitor to the offices occupied by Tenner; that he has no knowledge whatever of the whereabouts of the books of the firm or of the individual books of Tenner; that none of them have been in his possession or under his control since the 1st day of August, 1892; that he has no recollection of seeing them since that time ; and that he is unable to produce them. There are no facts or circumstances appearing to countervail the apparent effect of the affidavit of the defendant Toby in answer to the petition; and it is difficult to see how he can properly be charged personally with the failure to produce the firm books for inspection. It is urged that Toby’s answer would serve the purpose of Tenner if the answer of the latter were stricken out. ' That can be so only to a very limited extent, and that is in the denial that the defendants Tenner, Toby, and Mills, as copartners, under the firm name of C. H. Tenner & Co., are indebted to the Illinois company in the sum of $40,000 or any sum. This is the only matter within the allegations of Toby’s answer which appears to be the subject of joint liability of those parties arising out of their alleged joint contract. There is no denial of the charge that the second firm of that name assumed the debts and liabilities of the former one. The complaint alleges substantially that the Illinois company transferred all its property to the Hew Jersey company, and that the certificates of stock of the latter company were delivered to the Illinois company, and were distributed by it before the first firm of C. H. Tenner & Co. was dissolved, and that thereafter that corporation practically did no business. It would therefore seem from the allegations of the complaint that the joint liability of the members who constituted the later firm is dependent upon indebtednsss of the former firm to the Illinois company. The mere fact that Toby answered the complaint cannot be given an effect prej udicial to him in the proceeding to" obtain inspection of the books, and to punish for contempt art his failure to produce them. As the firm was dissolved in July, 1892, and the occupation of the office by Toby was then discontinued, and thereafter continued by Tenner, nothing appears from which complicity of Toby with Tenner in respect to the books can be inferred, nor does there seem to be any relation between them from which it may be assumed.

The order as to the defendant Toby should be reversed, and as against the defendant Clarence H. Tenner affirmed.

All concur.


author: Lewis. J.

text:
    Town of Corning, Resp’t, v. Charles Head, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.

    Highway — Obsthuctioit.
    An action to recover a penalty for obstructing the highway may be maintained without giving the defendant notice of the obstruction and directing him to remove the same within the statutory time.
    Appeal from a judgment entered in favor of plaintiff.

      George T. Spencer, for app’lt; E. C. English, for resp’t.
   Lewis. J.

This action was originally brought in a justice’s court, under section 104 of the highway law of 1890 (chapter 568), to recover of the defendant a penalty of $5 for obstructing a highway in the village of Gibson, Steuben county. The defendant interposed a plea of title, and the action was thereafter brought in the county court, and the trial resulted in a verdict for the plaintiff for a penalty of $5, and from the judgment entered thereon an appeal was taken to this court. The plaintiff gave evidence tending to show that at an early day the owners of the land now corriprising the village of Gibson, and including the premises in question, caused to be made a map, on which the premises in dispute were laid out as a street. The undisputed evidence tended to show that thereafter, for thirty or forty years, the public used the street thus laid down on said map as a highway. Said street extended from Main street, in said village, westerly, to and across Back street. The highway authorities, while said way was so being used, indicated an acceptance thereof as a highway by working and repairing the same from time to time. After it had been so used and occupied, the defendant purchased a lot, the boundaries of which included the premises in dispute ; and thereupon he entered a fence across the entire width of said way at the point where it intersected Main street, which prevented the public from using the street as they had been accustomed to do, and it was for this-obstruction that the action was brought. It was conceded upon the trial that proceedings had never been taken by the highway authorities to lay out this street as a highway; neither had it ever been ascertained, described, and entered of record as a highway in the-records of the town ; neither was there any proof of any direct actual notice to the defendant of the existence of the highway, or to-remove the obstruction. The premises in dispute haying been dedicated as a highway, and used as such by the public for more than twenty years, and. having been accepted and worked by the authorities as a highway, became a legal highway. Speir v. Utrecht, 121 N. Y. 420 ; City of Cohoes v. President, etc., D. & H. C. Co., 134 id. 397. The defendant, having obstructed it, became liable to the penalty provided by section 104 of the Highway Law (Laws 1890, chap. 568), which provides that “whoever shall obstruct, or encroach upon any highway, shall forfeit for every such offense the sum of $5.” It was not necessary to give the defendant notice of the obstruction, specifying the extent and location thereof, and direct him to remove the same within sixty days, as is provided by section 105 of the highway law. The latter section provides for a penalty of $25 for not removing an enroachment. This action was brought under that section, but under section 104, as stated, and the authorities to which our attention is called by the appellant’s counsel holding that the statutory penalties for enroachments are not applicable to highways except such as have been laid out or have been ascertained, described of record, as entered in theAown clerk’s office, have no application to cases arising under section 104. The testimony of David Kimball to the effect that he had heard Butler S. Wolcott state that there was a road through there, and that it must not be occupied with lumber, was not competent evidence, for Wolcott was not shown to have had title to the premises at the time of making the declaration, but was simply occupying adjoining premises. The error, however, was not of sufficient importance to justify our granting a new trial. The existence of the highway was so clearly established by other and competent evidence, which was not in any way contradicted, that Wolcott’s declarations cannot with any propriety be claimed to have had any effect upon the verdict We see no reason for disturbing the judgment. It should be affirmed, with costs.

All concur.


author: Lewis, J.

text:
    Graves Elevator Company, Resp’t, v. Masonic Temple Association of Olean, Def’t. Benjamin U. Taylor, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Parties — Intervention.
    Section 452 of the Code, which authorizes a person not a party, who has an interest in the subject-matter of the action, to be brought in as a party, applies to actions at law as well as to suits in equity.
    2. Same.
    The evidence was held sufficient to show that the petitioner had such an interest in the controversy as entitled him to he made a party defendant.
    Appeal from an order, denying the application of the petitioner to be permitted to come in as a party defendant and defend the action.

      F. W. Kruse, for app’lt; A. J. Hastings, for resp’t.
   Lewis, J.

In the the year 1892 the defendant, the Masonic Temple Association of Clean, entered into a contract with one William D. Moore for the construction of a building in Clean. Moore’s contract included the furnishing and placing in the building of a passenger elevator, which the plaintiff, at the request of Moore, furnished and placed in the building. Moore sublet the construction of various parts of the work. After the elevator was in the building, Moore having failed to pay his sub-contractors, a number of them filed mechanics’ liens against the building for work and material which they had performed and furnished. Benjamin U. Taylor was one of the subcontractors who filed a lien. So did the plaintiff. The amount of its claim was stated to be $1.800. After-wards plaintiff and other lienors joined in an action in the supreme court, making the Masonic Temple Association, Moore, Taylor, and other parties defendant, for the purpose of foreclosing and adjusting the rights of the parties under their various liens. The issues joined were referred to a referee for trial, and, while said action was pending and the trial was proceeding, an accounting took place between the parties to said action, including the plaintiff in this action, for the purpose of ascertaining the amount due and owing by the Masonic Temple Association to the contractor William D. Moore. The sum of $14,509.41 was found to be the ■amount due said contractor. This sum was sufficient to pay in full all the liens prior to Taylor’s, and nearly sufficient to pay his claim, but nothing was left applicable to plaintiff’s claim, its lien being the last one filed. When it was ascertained that the liens prior to the plaintiff's would consume the' entire fund, application was made to the referee in its behalf for leave to withdraw from the action, upon the ground that under its contract with Moore the elevator was to be its property until it was paid for. The application was granted, and the action proceeded to judgment. By the terms and provisions of the judgment, it was established and determined that there was due from the defendant, the Masonic Temple 'Association, to Moore, the contractor, the sum of $14,-509.41; and it further provided that that sum should be deposited by the defendant in the Exchange National Bank of Olean, to be paid by it upon the liens therein provided for, but none of the said moneys were to be applicable, by the terms of said judgment, to the paynlent of the claim of the plaintiff herein, for the reasons before stated. The amount thus found due to Moore was deposited in said bank. The amount found due by the referee from the contractor to Taylor was $7,615.43. The judgment provided that from the sum found due Moore $1,800 should be retained and deposited in 'the said Exchange National Bank, to be held by said bank until the question of the liability of the Masonic Temple Association to pay the claim of the elevator company, or the right of the said elevator company to reclaim the said elevator, should be finally determined by'a court of competent jurisdiction, or until such questions were determined by an agreement of the parties interested, to wit, the parties to the action and the said Taylor; and that -when such final determination should have been made, or such agreement concluded, if it was to the effect that the elevator was the property of the Masonic Temple Association, and not the property of the Graves Elevator Company, then the $1,800 should be paid over to Taylor, to be by him applied upon his lien. If, however, it should be determined or agreed that the elevator was the property of the plaintiff, then the $1,800 was to be paid to the Masonic Temple Association, in the event that the elevator company reclaimed said property ; and if the elevator company did not reclaim the property, and it should be determined or agreed that the elevator belonged to it, then the $1,800 was to be paid to the elevator company, and the elevator in that event was to belong to the Masonic Temple Association, even if it should be determined or agreed that the elevator did at the time of making said referee’s report belong to the said elevator company. The Graves Elevator Company thereafter commenced this action against the Masonic Temple Association to recover the possession of the elevator, the value of which was stated in plaintiff’s affidavit to be the sum of $1,800. After the commencement of said action, and before the service of the complaint therein, the appellant, Taylor, made application to the court to be joined as a party defendant in said action, his claim being that he had an interest in the subject thereof. It appeared in his affidavit, in addition to the facts above stated, that while he was furnishing the materials and doing the work upon the building, the elevator was placed therein and made a part of it by the workmen of the elevator company, and that he thereafter continued to do work upon the building, having in mind the fact that the building was sufficiently in progress of completion, and that sufficient money would be due from the owner to the contractor, to make him secure in doing the work and furnishing the materials, and that he relied upon the elevator, as belonging to the owner of the building, as part of his security. His affidavit further stated that he took part in the accounting before the referee, but was only interested in seeing that the amount due the -contractor was sufficient to cover his liens upon the building, in addition to those prior thereto, and that had he known that the elevator was not a part of the building, or was claimed by the elevator company, some of the sums which were allowed in the settlement, and which would have increased the amount due to Moore, and also other sums which would have reduced the amount due on liens prior to his, would not have been allowed by him. From this, he claims, arises by way of estoppel a defense which is personal to himself. The appellant’s motion was denied, and from the order denying the motion this appeal was taken.

It is apparent from the facts stated that Taylor has an interest in having it adjudicated that the elevator is a part of the building, and belongs to the owners thereof, whereas the defendant has very little, if any, interest in the event of the action. If the plaintiff succeeds in establishing its title to the elevator, it will receive the $1,800 on deposit. It cannot with any propriety be contended, in view of the arrangement stated, that the elevator will be removed from the building. If the plaintiff fails in establishing its claim to be the owner of the elevator, the $1,800 will belong to and will be paid to the appellant Taylor. The appellant and the plaintiff are therefore the only parties interested in the question to be litigated. It is the contention of the counsel for the respondent that, it being an action at law, the cannot be to in other parties than those it has chosen to make defendants;. and lie relies upon the case of Chapman v. Forbes, 123 N. Y. 532; 34 St. Rep. 351, as sustaining his contention. He claims that case holds-that section 452 of the Code of Civil Procedure has reference only to suits in equity, and not to actions at law. Since the granting of the order from which this appeal was taken, the case of Rosenberg v. Salomon, 144 N. Y. 92; 63 St. Rep. 62, has been decided by the court of appeals. If the case of Chapman v. Forbes, supra, can be construed as sustaining the contention of the respondent’s counsel, the doctrine of that case must, we think, be held to have-been modified and limited by the Rosenberg Case. The latter case-was an action of replevin brought against the sheriff of Kings county to recover the possession of certain chattels levied on by him under execution against Salomon and Wolf. Salomon and Wolf were made parties, and they applied for leave to intervene as parties defendant. Their motion was granted, the order affirmed at general term, and again in the .court of appeals. The court held that section 422 of the Code, with its new added provision, applies to legal as well as equity actions. The appellant made ai case entitling him to be made a party defendant.

The order appealed from should be reversed with $10 costs and. disbursements, and the motion granted.

All concur.


text:
    Flour City National Bank of Rochester, App’lt, v. George McKay, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Appeal — Verdict. .
    A verdict, on conflicting evidence, will not be disturbed on appeal, where the evidence is sufficient to sustain it.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a'new trial, made on the minutes.

      George F. Youman, for app’lt; Walter S. Hubbell, for resp’t.
   Lewis, J.

This action was brought to recover a balance claimed to be due on a promissory note for $1,500, made by the defendant on the 5th day of December, 1888, payable to the order of James J. Guthrie, and by him delivered to the plaintiff. The making and delivery of the note were admitted by the answer. The defense relied upon appears in the testimony of defendant and Mr. Guthrie.

The sole question presented by this appeal is whether the verdict, ■was so far against the weight of evidence that it should for that ■reason be set aside. Guthrie's testimony, if true, made out a defense. He testified that the note in suit was made by the defendant for his (Guthrie’s) accommodation soleljr; that he delivered it to the plaintiff bank; it was credited to his account at the bank upon a past indebtedness; that after his failure, by request, he met Mr. McHaughton, the attorney of the bank, and Mr. Hathaway,. its president; that they requested him to confess a judgment for the amount of his indebtedness to the bank, and to assign certain securities belonging to him, including a mortgage for $5,000, and also to trarisfer to the bank about 2,000 bushels of malt belonging to him and the defendant as copartners; that he told them that he would give them an assignment of the malt and of the $5,000 mortgage upon condition that the bank would surrender certain notes which it held as collateral security for his indebtedness to the bank; that he called attention particularly to the note in question, and insisted, as condition of making the transfer, that it should be surrendered; the subject of McKay’s financial standing was discussed; that it was stated that about all he had was the interest in this malt, and it was agreed that the mortgage and the malt should be transferred to the plaintiff, and in consideration thereof they would surrender the note -of defendant; that he did thereupon assign the mortgage and thereafter the defendantin whose name the title to the malt stood, transferred the malt to the plaintiff. McKay testified that he had learned from Guthrie, before executing the transfer of the malt, of the arrangement he had made with the bank in regard to surrendering the notes. The testimony tended to show that Guthrie had advanced most of the money for the purchase of the barley from which the malt was made. McKay, however, had put into it the sum of $474.68. The malting business had been done in his name. The plaintiff, after obtaining the mortgage and malt, refused to surrender the notes. The president of the bank and the attorney testified that they had no recollection of having agreed to surrender the McKay note; that no such agreement was made. Other facts appeared in evidence which tended in some degree to corroborate the testimony of Guthrie and McKay.-

The trial justice, who saw the witnesses and heard their testimony, was of the opinion that the verdict was not against the weight of evidence. After-an examination of the case, we incline to the same opinion. It follows that the judgment and order appealed from should be affirmed.

All concur.