author: Martin, J.

text:
    Walter Walrath et al., App’lts, v. William H. Abbott, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    1. Lunatic—Sale on real estate.
    The heirs of a lunatic may,- after her death, sue to establish and foreclose a vendor’s lien on the land, sold by the special guardian, for the amount of a worthless mortgage on other land accepted by him in part payment.
    3. Same—Payment.
    The .special guardian cannot accept, in part payment for the lunatic’s land sold by him, a mortgage on the land, unless permitted to do so by an order of court.
    3. Payment—Mutual mistake.
    The transfer of a worthless mortgage, under a mutual mistake of fact, in payment of, does not discharge, the debt.
    4 Vendor and purchaser—Lien.
    The vendor is, in equity, entitled to a lien for the purchase price of land, delivered to the purchaser without its payment.
    Appeal from a j udgment dismissing the complaint with costs.

      A. H. Bellinger and G. J. Palmer, for app’lts; H. Clay Hall and George W. Smith, for resp’t
   Martin, J.

The purpose of this action was to establish and foreclose a vendor’s lien upon certain real estate for a portion of the purchase price. The questions which are sought to be reviewed upon this appeal arise upon the judgment roll, which includes the summons, pleadings, the plaintiffs requests to find, findings of the referee, and judgment. Thus, the question to be determined is whether the referee’s conclusions of law are sustained by the facts found by him.

A brief statement of the facts seems necessary to a clear understanding of the questions involved. On May 8, 1888, Elizabeth R. Walrath, a resident of Herkimer county, was adjudged a lunatic,, and Walter Walrath was duly appointed as committee of her person and property by an order of the Herkimer county court dated on that day. He qualified as such committee, and entered upon the discharge of his duties. On the 25th day of the same month he, as such committee, instituted proceedings in the Herkimer county court for the sale of certain real estate which belonged to the lunatic. Such proceedings were had therein on the 1st day of August, 1888, Charles'E. Teall was appointed special guardian of such lunatic, and S. W. Petrie, Esq., was appointed a referee to inquire into the merits of the application, and to report the testimony, with his opinion thereon. Teall consented to act as such guardian, and duly qualified. Petrie qualified as referee, and took proof of the facts, and reported the same to the court with his opinion thereon. The value of the real estate was reported to be the sum of $2,100. Upon filing such report the court made an order confirming the same, and directing Teall, as special guardian, to make a contract for the sale and conveyance of the real estate, subject to the approval of the court, for a sum not less than $2,100, and alsd directing the guardian to report the terms and conditions of the agreement to the court before making a conveyance. Thereupon, and after the entry of the order, Teall, as special guardian, entered into an agreement with the defendant to sell him thé premises in question for $2,100, $600 to be paid in cash upon the execution of a deed, and the remainder to be secured by a bond and mortgage, payable $500 yearly, with interest, with an option to the defendant to pay more. Afterwards, and on the 23d day of November, 1888, the special guardian reported to the court the agreement madé with the defendant, and the terms thereof. This report was signed and acknowledged by special guardian, and the contract made with the defendant attached thereto. The report was ratified and confirmed by the court, and the special guardian directed, in the name of and for the lunatic, to execute, acknowledge, and deliver a deed of said real estate to the defendant upon his complying with the terms and conditions of the agreement. On the same day the guardian executed, acknowledged, and delivered to the defendant a deed of the real estate, which- was recorded in Herkimer county November 26, 1888 ; but the defendant gave no mortgage upon such real estate to secure any part of the purchase price thereof, as by such order and agreement he was required and had agreed to do. Prior to the 21st day of November, 1889, the defendant paid all the purchase money excepting the sum of $950. On that day it was agreed between"the defendant and Walter Walrath, who was still the committee, that the portion of the purchase price then remaining unpaid might be paid by an assignment of a mortgage held by the defendant against one Nelson, and the remainder in cash. The defendant stated that he considered the mortgage good, and Walrath was satisfied to accept it for its face value, with accrued interest, which was $23.75. The mortgage was assigned to Walrath by the defendant, and the residue of such purchase price was paid in cash. At the time of the assignment, Walrath was informed bv Nelson that there were two prior mortgages which were a lien on the mortgaged premises, one for $1,000, and one for $3,500, with some interest upon each. The assignment of this mortgage is the only way in which it is claimed or pretended that the sum of $523.75 of the purchase money was ever paid. One of the prior mortgages was subsequently foreclosed, and the property was sold, bnt it did not bring a sufficient sum to pay the two prior mortgages, and hence there was nothing to apply on the $500 mortgage thus assigned. The mortgage assigned contained a covenant by the mortgagor to pay the mortgage debt; but he was insolvent both at the time of the foreclosure and when the mortgage was assigned, so that nothing whatever could be realized either upon the mortgage or the covenant. On the 23d “day of March, 1890, Elizabeth E. Walrath, while still a lunatic, died intestate, leaving no husband her surviving, but left surviving her the plaintiffs, who were her only heirs at law and next of kin. Between April 18, 1890, and July 1, 1890, Abram H. Bellinger, at the request of Walter Walrath, who was the committee, tendered to the defendant the Nelson mortgage; and offered to surrender the same and cancel the assignment thereof, but the defendant refused to accept the mortgage or receive the cancellation of the assignment. About August 14, 1891, Bellinger, acting for the plaintiffs, tendered to the defendant a paper, under seal, executed by all the plaintiffs, which was, in effect, a reassignment of the mortgage to the defendant, and also tendered him the mortgage, and demanded payment of the $500, with interest from November 21, 1889. The defendant refused to accept the paper or to pay the money demanded. The referee found that the representations alleged in the complaint were not made by the defendant with an intent to cheat and defraud Walter Walrath, or any of the plaintiffs, and that the fraud and deceit alleged therein were not practiced by the defendant; that he did not know of or understand that the mortgage assigned was not of the value of $523.75; that the assignment of such mortgage was accepted by Walter Walrath as a payment of .$523.75 upon the purchase price of said real estate; that the balance of such purchase price was paid in cash by the defendant; and that, at the time of the commencement of this action, no part of the purchase price remained unpaid. As a conclusion of law lie held that the plaintiffs’ complaint should be dismissed upon the merits, with costs, and ordered judgment accordingly. The plaintiffs requested the referee to hold that the purchase price of the premises sold to the defendant was real estate. This he held. They also requested him to hold that the balance of the purchase price—$523.75—was real estate at all times subsequent to the deed to the defendant, up to the time of the death of Elizabeth E. Walrath, and that upon her death it passed as real estate to the plaintiffs, as her heirs and next of kin; that the assignment of the mortgage by the defendant to Walter Walrath, as committee, was not a payment of the balance of the purchase price„of the premises; that Walter Walrath, as committee, had no authority to release the defendant from his liability to pay the balance of the purchase price upon receiving the assignment of such mortgage; and that upon the death of Elizabeth E. Walrath the right to receive the balance of the purchase price of the defendant passed to the plaintiffs. The referee refused to find or hold any of these propositions, to which refusal the plaintiffs duly excepted.

The respondent contends that “the committee was the only person who had a right to commence this action. The lunatic being dead, the trustee took all the funds arising from the sale of the rea! estate, subject only to distribution, and he was the owner of the mortgage upon which the charge of fraud was made.” He cites § 2339 of the Code of Civil Procedure as sustaining this proposition. We find nothing in that section which would seem to uphold the proposition. Indeed, it is not quite clear as to what claim is intended to be made by the respondent. Assuming, however, that it was intended to challenge the right of the plaintiffs to maintain this action, the question of such right will be examined. Independent of statute, courts have no authority to sell the real estate of a lunatic, even for the payment of his debts, although the heirs at law and next of kin consent to such sale. Ex parte Pettit, 2 Paige, 596; Ex parte Hoag, 7 Paige, 312. Thus, the authority to sell such real estate must be found in the statute. The statute which authorizes such a sale, provides the procedure to be adopted, and to some extent declares the rights of the parties, is now contained in title 7 of chapter 17 of the Code of Civil Procedure. An examination of that title discloses that by the provisions of § 2359 the proceeds of the sale of the real estate of an incompetent person are to be deemed property of the same nature as the estate or interest sold, until the incompetency is removed. This- provision is not new. It was intended as a.reenactment of the provision of § 10 of chapter 417 of the Laws of 1864. The evident purpose of the statute, like the statute relating to the sale of infant’s real estate, was to preserve the character of the property in reference to the statutes regulating descents and distributions. Forman v. Marsh, 11 N. Y. 544; In re Price, 67 N. Y. 234; Sweezy v. Thayer, 1 Duer, 286. The statute which permiis the land of the lunatic to be sold and turned into money under the order of court is careful to provide that its character shall remain unchanged for the benefit of all interested therein, and is, indeed, but a repetition of the existing rule of equity. Hence, the sale of a lunatic’s real estate, even in partition, does not convert it into personalty, or does taking it by condemnation proceedings. Ford v. Livingston, 140 N. Y. 162; 55 St. Rep. 254 ; Cutting v. Lincoln, 9 Abb. N. S. 436; In re Barker, 17 Ch. Div. 241; In re Wharton, 5 De Gex, M. & G. 33 ; Awdley v. Awdley, 2 Vern. 192. It follows, we think, that if any of the proceeds of the sale of the. lunatic’s real property remained at the time of her death, she having then been a lunatic, its character as realty continued, and upon her death it descended to her heirs at law. If correct in this conclusion, we can see no sufficient reaspn why the plaintiffs, who were her heirs at law, were not the proper parties to bring this action.

Another question that arises upon this appeal is whether the plaintiffs were, upon the facts found, entitled to the relief sought. There can be no doubt that the real estate of the lunatic was transferred to the defendant, and that he agreed with the special guardian to pay him therefor the sum of $2,100. It is equally plain -that he had not paid him $523.75 of the amount. How much of the purchase price was paid by the defendant to the special guardian does not appear in the findings of the referee. It does, however, appear that a portion of the purchase price was paid to Walter Walrath, but by what authority, or that there was any direction of the court to pay him that sum, does not appear. Nor does it appear that Walter Walrath had any authority to receive the defendant’s assignment of the Nelson mortgage in payment of the defendant’s debt The order of the court was that $600 of the purchase price should be paid to the special guardian in cash, and the balance secured by a mortgage, payable §500 a year, with interest, and, at the option of the defendant, a greater sum might be paid. From the facts as found by the referee we have sought in vain to discover that the defendant had any power or authority to pay any portion of the purchase price by transferring the mortgage in question to Walrath. Walrath mad no power to collect the purchase price of the real estate sold, unless the court, by some order, authorized him to do so, or in some way placed the debt in his hands. The court, by its order, directed the manner in which the purchase price should be paid and secured. A fair construction of that order renders it manifest that the court intended to require that the portion of the purchase price which was not paid to the special guardian in cash when the deed was given should be secured by the defendant’s bond and a mortgage upon the premises sold. With the provision directing that such security should be given, the defendant did not comply. This provision must have been known to him, for it was a part of his agreement, and, without the order containing it, the person who transferred the real estate1 to him would have no power or authority to make such transfer. With this knowledge, and with an utter disregard of the order requiring him to give his bond and a mortgage on the real estate purchased, he took the deed, and afterwards sought to pay a portion of his then existing debt by the assignment of a mortgage that was worthless. Thus, we are called upon to determine whether, under these circumstances, the delivery and assignment of the Nelson mortgage can be regarded as a payment and consequent discharge of the defendant’s debt for that portion of the purchase price, although Walrath assumed to accept it as payment. Neither at common law nor by statute has a committee of a lunatic power to dispose of his estate without an order of the court. He has no title to, nor interest in, the real estate, but is simply an agent, officer, or representative of the court, and has no independent power to dispose of it in any manner whatever. In re Otis, 101 N. Y. 581; Pharis v. Geer, 110 N. Y. 336; 18 St. Rep. 534. Walrath. being at most a mere agent of the court, had no power to discharge the defendant’s indebtedness without an actual payment. An agent has no power to discharge an indebtedness, even upon actual payment to him, unless he is authorized by his principal to receive it. Smith v. Kidd, 68 N. Y. 130; Ritch v. Smith, 82 N. Y. 627; Brewster v. Carnes, 103 N. Y. 556, 564 ; 4 St. Rep. 264; Seymour v. Smith, 114 N. Y. 481; 24 St. Rep. 77; Crane v. Gruenewald, 120 N. Y. 274; 30 St. Rep. 971; Schermerhorn v. Farley, 58 Hun, 66; 33 St. Rep. 900. We do not perceive how the defendant could discharge his liability to pay the purchase price by an assignment of a mortgage to Walrath, who was not authorized by the court to receive it. Code Civ. Proc. § 2361, provides that the court must, by order, direct the disposition of the proceeds of such a sale, and also direct the investment of any portion which is not needed for the safe-keeping or immediate maintenance of the lunatic or his family, and must require a report of the disposition and investment thereof to be made as soon as practicable. In this case there was an order directing the manner in which the remainder of the purchase price not paid to the special guardian in cash should be invested or secured. This direction was wholly disregarded by the defendant, to whom it must have been known. Under these circumstances'we think the defendant had no right to pay or secure the purchase money in any other manner than that provided by the order of the court, and that when he disregarded that order, and attempted to pay it in another and different way, he did so at his peril. The pretended payment was made by the assignment of a mortgage ujpon, property on which there were two prior mortgages, given to secure amounts greatly exceeding the value of the land, and the mortgagor and only person liable to pay the mortgage debt was hopelessly insolvent, so that the security given for this portion of the purchase price of the premises, or assigned in payment thereof, was valueless. It may be that the defendant was unware of the fact that the mortgage assigned was worthless, and, in the absence of any finding to the contrary, it must be so held. If it be assumed that the defendant had no knowledge of that fact, it is quite obvious that Walrath was equally ignorant. Hence, it must be determined whether, since both-of the parties were ignorant of the worthlessness of the mortgage, a transfer of it to Walrath operated as a payment of the defendant’s precedent debt. In Roberts v. Fisher, 43 N. Y. 159, where the defendants, being indebted to the plaintiff for goods sold, gave him a promissory note of a third person, which was received by him in full payment and discharge of the debt, and the maker of the note was insolvent at the time of the transfer, though the fact was unknown to the parties, it was held that the case was one of mutual mistake of fact, and that the plaintiff was entitled to recover of the defendants his original debt. The same principle was held in the cases of Thomas v. Supervisors of Westchester, 115 N. Y. 47 ; 23 St. Rep. 851, and Duden v. Waitzfelder, 16 Hun, 337. The doctrine of these cases, as well as every principle of right and natural justice, require us to hold that the transfer of the Nelson mortgage to the committee did not operate as a payment of the defendant’s existing debt for the purchase price of the real estate in question, and that, as both parties were ignorant of the insolvency of the mortgagor and the worthlessness of the mortgage, the transfer was made under a mutual mistake of fact, and did not constitute a payment of any part of the purchase price. '

Having thus reached the conclusion that the portion of the purchase price of the premises which was attempted to be paid by the assignment of the Nelson mortgage still remains unpaid, the only remaining question which we need consider is whether the plaintiffs were entitled to a judgment declaring such unpaid purchase money a lien upon the premises sold, and directing a foreclosure thereof by a sale of the property to pay and satisfy it It seems to be well settled that, where a vendor delivers possession of an estate to a purchaser without receiving the purchase money, equity gives the vendor a lien upon the land for the unpaid purchase price. This is especially so where, as in this case, there was an agreement for a mortgage. 1 Beach, Mod. Eq. Jur. § 295; Chase v. Peck, 21 N. Y. 581, 584; Garson v. Green, 1 Johns. Ch. 308 ; Warner v. Van Alstyne, 3 Paige, 513 ; Arnold v. Patrick, 6 id. 310 ; Hallock v. Smith, 3 Barb. 267 ; Hare v. Van Deusen, 32 id. 92; Dubois v. Hull, 43 id. 26; Benedict v. Benedict, 85 N. Y. 625, 626 ; Payne v. Wilson, 74 id. 348, 351; Stafford v. Van Rensselaer, 9 Cow. 316; Seymour v. McKinstry, 106 N. Y. 230 ; 8 St. Rep. 580. We think the plaintiffs were entitled to the relief sought. These considerations lead to the conclusión that the learned referee erred in holding that no part of the purchase price remained unpaid, and in dismissing the plaintiffs’ complaint, and hence that the judgment should be reversed.

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

1 All concur.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Louisa S. Wolf, Pl’ff, v. Arminus Copper Mine Company et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed February, 1894.)

    Corporations—Ultra vires.
    Where the effect of an agreement between the corporation and the mort- , gagee is to postpone the time when the latter can, by a foreclosure, take from the former the mortgaged premises, the act of the trustees in making such agreement is not ultra vires and void.
    Action by plaintiff against defendants to restrain the delivery of a deed and for a judgment declaring the deed void.

      William Mann, for pl’ff; John L. Hill, for def’ts.
   Ingraham, J.

With the consent of all the stockholders, the defendant corporation executed a mortgage to the defendant Grasselli to secure the payment of a sum of money that it owed the mortgagee, An installment of $20,000 upon that mortgage coming due in February, 1893, the company was unable to pay, and an agreement was entered into between the mortgagee and the corporation whereby the mortgagee agreed to accept $60,000 and interest in full payment of the mortgage if paid on or before December 1, 1893, which was a reduction of something over $5,000 on the amount which was due, and the company agreed that, in default of the payment of the $60,000 and interest on or before December 1, 1893, it would execute a deed conveying the mortgaged premises to the mortgagee in full satisfaction of the mortgage debt, and that a deed to carry out that covenant was to be executed by the defendant corporation, and delivered to the United States Trust Company in escrow, to be delivered to the mortgagee in case of the failure of the corporation to pay the mortgage on the date named. The corporation (was unable to pay the amount due to the mortgagee, and the mortgagee then demanded from the trust company a delivery of the deed, and this action was brought to restrain the delivery of that deed, and for a judgment declaring the deed void. The sole ground upon which plaintiff bases his right to that relief is that the acts of the officers in making the agreement with the mortgagee and the execution of the deed in pursuance of that agreement was ultra vires, upon the principle established by the. case of Abbot v. American Hard Rubber Co., 33 Barb. 578. This principle is now well -established in this and most of the other states of the Union, and is a most salutary one, and the protection of stockholders in corporations requires that it should be, in all cases, vigorously enforced. The question here, however, is-whether the facts in this case are brought within the principle settled in the Hard Rubber Company Case.

The defendant corporation is a domestic corporation, organized under the laws of this state, formed and organized as alleged in the-complaint, solely and only for the purpose of acquiring and working certain mining property in the state of Virginia, which property is the property sought to be conveyed by the deed the plaintiff asked to have adjudged void. In 1889 the corporation became-indebted tó Grasselli, as trustee, in the sum of $125,000, and, with the assent of all of its stockholders, including the then holder of the stock now owned by the plaintiff, consented to that mortgage, and that consent was duly filed, as required by law. This mortgage, therefore, became a valid lien upon the property therein described, and the plaintiff, as a stockholder could not object to the-validity of the mortgage, as his predecessor in title, as a stockholder, had expressly consented to its execution. After the pay-, ment of various installments, amounting in the aggregate to $50,000,. on the first of February, 1893, an installment of $20,000 and upward of $3,000 back interest became due, which the corporation was unable to pay. It is not alleged that at the time there was any collusion as between the mortgagee and the officers of the corporation, or that the agreement then made was unfair or injurious to the corporation. The corporation, through its board of trustees, with the assent of most of its stockholders, and without express objection by the plaintiff, made the agreement, and, assuming that the corporation was then unable to pay the amount due on the mortgage, it would seem that the agreement as made was not only fair, but was an extremly favorable contract for the corporation. It had until December 1,1893, to pay its debt that was then due, and it obtained a reduction of the amount due of $5,000. The-creditor or mortgagee was prevented, pending that time, from taking any steps to recover the amount due on his mortgage, or to-foreclose it. The mortgagee has lived up to his contract, while the corporation has failed to perform its agreement. No special equity is shown that would entitle this corporation, or its stockholders, after having received the benefit of the agreement made with the mortgagee, to repudiate its obligation under the agree-meat; and unless, under the rule of the law above stated, this con-■v veyance is absolutely void, I do not think the court should interfere. As before stated, the mortgage was clearly valid, and by it the mortgagee had the right, on the first of February, to proceed to foreclose his mortgage. There is nothing presented in the moving papers showing that the corporation would then have had, or now has, any defense to that mortgage ; and if the plaintiff had proceeded, on February 1st, to foreclose, it would appear that, long before this time, he would either have had his money or the title to the property- The plaintiff having thus the right to have the property sold, and the proceeds applied to the payment of his debt, thus divesting the defendant of the title to its property, is there any legal objection in the corporation’s assuming to give to the mortgagee, in payment of its legal debt, the title to the property, which the court, on the complaint of the mortgagee, would have divested from the corporation had the agreement not been made? The principle relied upon by the plaintiff was stated in the opinion of Justice Sutherland, at special term, in the case of Abbot v. American Hard Rubber Co., 33 Barb. 580. In that ease the trustees of the corporation, organized to manufacture rubber under the Goodyear patent, attempted to sell all the property of the corporation in one lump, including its right to use the patent, with the exception of the legal title to some real estate in the state of Connecticut ; and to take in payment notes of the grantees. It was held that this transfer would, in effect, dissolve the corporation, and defeat the objects of its existence, and the principle was then, established that trustees or directors appointed to conduct and manage a corporation have no authority by their voluntary act to defeat the object for which the corporation was organized. And in the opinion of Mr. Justice Sutherland at special term, and in. the opinion delivered by Justice Allen on the appeal, the foundation upon which thf' rule was founded was emphasized. In that case the directors were attempting, by a voluntary act, to deprive the company of the object of its existence by the transfer; and its directors, elected to manage the corporation, and to accomplish the object for which it was organized, were given by the stoclcliolders no power to voluntarily wipe it out of existence. Allen, J„, at the general term, says:

“ By the transfer, if allowed to stand, although the corporation still remains in form, with property which might be applied to some lawful purpose, the existence of the corporation was nominal. Its substance was taken from it, and its property was valueless as a hard rubber company. It had no rights, no franchises, and no existence.” 81 How. Pr. 197.

Tiie latest case in which this principle has been applied in this state, to which my attention has been called, is the case of People v. Ballard, 134 N. Y, 269; 48 St. Rep. 166, and the principle is there stated by Judge Vann, delivering the opinion of the court:

“ A corporation cannot cease to exist of its own will. Its life continues until either the. charter period has expired, or the court has decreed a dissolution. The law made it, and the law only can put an end to it. As it cannot take its own life directly, it cannot do so indirectly, for that would be a fraud upon the law and against public policy. By the transaction complained of, the defendant company was stripped of all its property, and thus prevented from going on in business, and deprived of all means of carrying into effect the object of its existence. While a corporation may sell its property to pay its debts, or to carry on its business, it cannot sell its property in order to deprive itself of existence.”

Applying the rale thus stated, it would seem that it does not affect the act of the corporation in this case. Here the effect of the agreement made between the corporation and the mortgagee was not to strip the corporation of its property, but was to postpone the time when the mortgagee could, by a foreclosure, take from the corporation the premises' mortgaged. The object was not to transfer the property to another, but to prevent, for a time, the sale of the property, under operation of law, to pay the corporation’s debt. The corporation, by the consent of all its stockholders, had placed the mortgaged premises in such a position that a sale could be decreed upon the failure to pay the amount due upon the mortgage ; and while it still owned the legal title to the premises, such ownership was subject to the right of the mortgagee, which, upon the failure of the corporation to pay its debt, would result in its title to the property being diverted; and bv this act of the corporation the time when the property should be so diverted was postponed, and the agreement provided that the final diversion, when it came, if it did come, should be in full payment of the debt of the corporation. It seems to me clear that such a transaction cannot be said to be within the principle established by the Hard Rubber Company Case, and the act of the trustees of the corporation in making the agreement in question was not ultra vires and void. As before stated, the plaintiff shows no equity. It is not a case where a contract is executory in its nature, and where a party seeks to restrain its performance; but here the contract has been executed by the mortgagee. The plaintiff, as a stockholder in the corporation, has received the full benefit of such performance of a contract by"the mortgagee. No objection was ever made to the contract on behalf of the corporation or any of its stockholders, so far as appears, until the corporation had received the benefit; and it would seem to me to be extremely inequitable to allow the corporation to use the process of a court of equity so that the mortgagee, who has fully performed his contract, cannot have the benefit which is to be secured to him by such performance.

It is not alleged that the trustees of the corporation are insolvent, or unable to respond to the plaintiff in damages; and, if this act should be held to be unlawful, the plaintiff could have a remedy at law under the principles established in the case of People v. Ballard, supra. On the whole case, therefore, I think that the contract between the mortgagee and the corporation was valid, and that the act of the trustees in executing the deed to the mortgagee was not ultra vires, and that the deed is valid, and that, under the circumstances, there are no equities which would entitle plaintiff to the interposition oí a court of equity to restrain the delivery of the deed. The motion to continue the injunction is therefore denied, and the temporary injunction dissolved, with $10 costs.


author: Fursman, J.

text:
    Amelia M. Millard, Pl’ff, v. Otis S. Clark et al., Def’ts.

      (Supreme Court, Rensselaer Special Term,

      Filed February 3, 1894.)

    1. Trust—Creation.
    A trustee cannot be implied from a mere deposit of money in a savings bank by one person in tlie name of another.
    Same.
    If any rights remain in the settler as an individual, there is not a valid trust.
    Action by plaintiff against defendants, as executors, etc., to recover certain bonds, mortgages and bank pass books.

      JEdwin A. King, for pl’ff; H. D. Bailey, for def’ts.
   Fursman, J.

Orange E. Young died about March 14, 1892, leaving a widow and two daughters, of whom plaintiff is one, surviving him. By his last will, which had been duly proved, after certain specific devises and bequests, he gave to his widow the use and income during her life of all his other property, real and personal. Up to the time of her marriage the plaintiff lived with the deceased, and was supported by him. About February 1,1858, the plaintiff being then about ten years of age, the deceased opened an account in the Central Savings Bank of Troy in her name, and from time to time thereafter deposited money to the credit of such account. The pass book of the bank on which this account was stated was also in her name. The deceased told the plaintiff what he had done, and occasionally showed her the pass book, but he at all times kept possession and control of the pass book, and exercised control and authority over the account represented by it. On October 24, 1878, this account amounted to $349.91, and on that day was made a special deposit, bearing interest, in the Central National Bank of Troy, “subject to the control ” of said Young. Further deposits were made by Young to his new account. About August 13, 1864, the plaintiff being then about sixteen years old, Young told her he would give her $100 for a birthday gift, and would put it in the bank for her. At her request he permitted her to have actual possession of the money for a few hours, telling her, however, at the same time, that she 'must return it to him, and he would put it in the bank for her. She did return it, and he thereupon deposited it in the Troy Savings Bank to her credit, but “ subject to his sole control.” This account was also subsequently increased by deposits made by Young. The pass book representing this account was likewise shown to plaintiff by her father, and he frequently spoke to her about the moneys she had in the bank, which he was “ increasing for her at his death,” but he would not during her life let her have the money, though she asked him for it. Young often spoke of these accounts to his family, stating that they were the- plaintiff’s, and that she could have them at his death. The plaintiff often urged her father to turn the accounts over to her, but this he invariably refused, giving as his reason that she might have greater need of the money after his death than while he lived. The pass books were never delivered by Young to the plaintiff, but were always kept by him in his safe. The origin from which the first above mentioned account arose was a child’s savings bank, in which from time to time during the first ten years of plaintiff’s life the small moneys of different members of the family and others were placed as gifts to the plaintiff. Young took this money and deposited it as above set forth. About May 2,1889, Young withdrew $1,808.40 from these accounts, and invested the same in a certain bond and mortgage for $1,300 and another certain bond and mortgage for $500. To the first of these bonds he attached a paper writing, signed by him in these words:

“ This real estate bond of thirteen hundred dollars is for my daughter, Amelia M. Millard. It is the money she had in the savings bank to her credit, which was put in the bank when she was small. I now put it in this form so that she can realize more interest. At my death this is to go to her.”

An exactly similar writing, signed by him, was attached to the second bond. The interest thereafter collected on these bonds was placed by him to the credit of the account in the Central National Bank, and at the time of Young’s death there was a small sum remaining to the credit of each of the accounts above mentioned. Young never delivered to the plaintiff either the pass books or the bonds and mortgages in his lifetime, and at his death they were found in his safe. His executor and executrix under his last will thereupon took possession of them as part of his estate. A proper demand having been made and refused, the plaintiff sues to recover them, and asks, a decree declaring her to be the owner thereof.

The plaintiff does not claim that the facts establish a gift to her. Indeed, every element necessary to coustitute a valid gift seems to be lacking. Beaver v. Beaver, 137 N. Y., 59 ; 50 St. Rep. 69; Jackson v. Twenty-third St. R. R. Co., 88 N. Y., 520; Young v. Young, 80 N. Y., 422; Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep. 405. The plaintiff insists, however, that these facts constitutes a valid declaration of trust in her favor. A trust as to personal property may be created by parol, but to create it the acts or words relied upon must be clear and unequivocal, and must imply that the person creating it has divested himself of all title to the property, and thereafter holds it only as trustee for another. Young v. Young, 80 N. Y., 422, 438. No particular form of words is requisite, but the donor must have evinced by acts which admit of no other interpretation, that his subsequent possession and control of the property are as trustee; and not because of any individual rights remaining in him. Heartley v. Nicholson, 44 Law J. Ch. 277. There must be either an explicit declaration of trust, or the circumstances must leave no reasonable doubt that a trust was intended to be created. A trust cannot be implied from a mere deposit of money in a savings bank by one person in the name of another. Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep. 405. To establish a trust it must apperthat no power is left in the settler to revoke it or to defeat its effect by any different disposition of the property. When once created, it becomes irrevocable, and, while the trustee may possess and manage the property, his right to do so is as trustee only. If any rights remain in him as an individual, there is not a valid trust, Meiggs v. Meiggs, 15 Hun, 453. Testing this case by these rules, the facts proved are insufficient to create a trust. The money deposited by Young was his own. He never surrendered the control of it. When he converted it into the bonds and mortgages he treated it as his own, and attached to these a paper showing that they were to become the plaintiff’s only in the event of his death, and all his conversations on the subject were to the like effect. There was no gift, because there was never any delivery of the property. There was no trust created, because the settler never relinquished Iris title to and control over it There was, at most, a mere unconsummated intention to give; and it is well settled that to constitute a gift, whether by delivery only, or by the creation of a trust, either in the third person or in the don- or himself as trustee, the act constituting the transfer must be consummated, and not rest in intention merely. Enough must be done to pass the title. Martin v. Funk, 75 N. Y. 134. The facts show a testamentary intention, rather than a trust. Young undoubtedly meant that this property should become the plaintiff’s, but the circumstances leave no room for doubt that he meant it should become hers only at his death. This necessarily excludes the idea that he intended any immediate transfer of title when he made the deposits, or at any time. Markey v. Markey, 13 N. Y. Supp. 925; 38 St. Rep. 173; Kelsey v. Cooley, 11 N. Y. Supp. 745 ; 33 St. Rep. 775; In re Crise's Estate, 7 N. Y. Supp. 202; 26 St. Rep. 84. In Martin v. Funk, 75 IT. Y. 134, cited by counsel for plaintiff, there was an explicit declaration of trust. At the time the deposit was made the intestate stated that he wanted the account to be in trust for Lillie Millard, and it was so entered on the books of the bank and on the pass book. In each of the other kindred cases to which my attention was called there was either a distinct declaration of trust, or the circumstances were such as to leave no doubt that a trust was created, and the title to the property fully transferred. Those cases are, therefore, quite unlike the present. In Hamer v. Sidway, 124 N. Y. 538; 36 St. Rep. 888, the decision was put expressly on the ground that there was a good consideration. Here there was none. It seems clear in this case that the gift rested in mere intention that it should take effect at the death of Young. It is settled law that “a court of equity cannot render that gift perfect which the donor has left imperfect, and cannot convert an imperfect gift into a declaration of trust, merely on account of that imperfection.” Young v. Young, 80 N. Y, at page 437.

Judgment is ordered for the defendants.


author: Russell, J.

text:
    Gerton Carriage Company, Pl’ff, v. Richardson, Def't.

      (Supreme Court, St. Lawrence Special Term,

      Filed January, 1894.)

    Supplementary proceedings—Disputed title.
    Supplementary proceedings are not given for the purpose of trying dis puted questions of title.
    Motion to punish defendant for contempt.

      A. Z. Squiers, for pl’ff; John G. Keeler, for deft.
   Russell, J.

This is a motion to punish the defendant for contempt in disposing of $400 in cash, which came to his hands as the proceeds of a public ball given by him in an hotel at Russell, derived from the use of the ball room, and the refreshments more or less inseparable from such occasions. It is claimed that the money was used by him in the payment of debts incurred by him in running the hotel and the purchase of supplies. The defendant contends that the money was not his, but belonged to the estate of his deceased wife. He is executor of that estate, and also receives, by the will of his wife, his support from the rents, profits, and income of the estate, and, if necessary for the purposes indicated, has the right to use the principal. The hotel is a part of the estate. No accounting had been had, and no separation made of the parts necessary for his support, and the heirs, legatees, or devisees of the deceased wife do not seem to care to bring the executor to account. Whatever, therefore, should rightfully flow from the estate by way of income is mixed and mingled with whatever accrues by virtue of his using the property of the estate for business purposes, on the plea that thus alone can the property be preserved intact and its wasting away prevented; for, aside from the amount necessary for his own support, there are fixed charges to be met, such as the interest on $2,500 of mortgages, taxes, insurance and repairs, aside from any possible debts owing by the estate. The extreme process of attachment for contempt should not, of course, lie, unless the óourt, upon the evidence, would make an order requiring the defendant to pay over the money, if in his hands, to the satisfaction of the judgment upon which the supplementary proceedings are based. Supplementary proceedings are not given for the purpose of trying disputed questions of title, or of ousting the common-law and equity courts of jurisdiction to settle such questions by the familiar methods of trial, giving in such cases, as should be given the right to jury trials. These proceedings are designed as in the nature of summary proceedings, to ascertain from the debtor, under oath, what property he may have, and afford a short proceeding for the application of his property to the payment of judgments in cases of clear right. This is in accordance with the general principles of the administration of justice, and is not intended to derogate from the ordinary jurisdiction of the courts, where there is a substantial conflict upon the question of ownership. In such cases the ordinary forms of courts must be invoked. Williams v. Thorn, 70 N. Y. 270; Code Civ. Proc., § 2463; Rodman v. Henry, 17 N. Y. 484. In the case at bar the executor may be called upon to account for the use of the property, and, if he has derived benefit from it in transacting business, the rule may possibly follow him that he shall put in all of the proceeds for the benefit of the estate over and above what is necessary for his support. At all events, until there is a clear separation of the amounts necessary for his support from the gross sums received, I cannot see how a judge, under the statutory authority conferred upon him with reference to supplementary proceedings, may order any portion to be applied to the payment of the personal debts of the defendant. If he engages in business with the property of the estate rightfully, then a proceeding might lie in the form of an action to separate and determine the amount which should go to his individual creditors. If he engages in business wrongfully with the property, the cestui que trust may claim that it is all for the benefit of the estate, giving him allowance only for the sums he is entitled to for his support. Such a serious question of title, therefore, arises in the attempt to determine what interest he has in the usufruct of the estate of his deceased wife; that the courts ought not to determine it by orders made in supplementary proceedings. In so determining, for the purposes of this motion, I do not overlook the legal reasons which maintain that where an executor or administrator uses the property of an estate in business, and thereby converts it into other property, or derives other personal property from the use of that belonging to the estate, strictly speaking, the legal title is in the person, and not in the executor. The estate could not maintain an action of trover or trespass against a person dealing with the apparent proprietor of the business; but that conclusion does not make decisive the rights of the estate against the executor to possibly require the surrender of all of the property which he thus acquires, as in equity belonging to the estate itself. For the reasons given in the foregoing opinion, the motion is denied. Motion denied.


author: McAdah, J.

text:
    Charles Uhland, Pl’ff, v. Hester Uhland, Def't.

      (New York Superior Court, Equity Term,

      Filed February, 1894.)

    Divorce—Co-respondent.
    A co-respondent, in an action for divorce, must either take advantage of his privilege to decline answering questions that may tend to criminate or degrade him, or else he must testify truthfully.
    Action by plaintiff against defendant for divorce on the ground of adultery.

      J. H. Bogan, for pl’ff; F. H. Richmond, for deft.
   McAdah, J.

The defendant and co-respondent have been contradicted by so many material circumstances and in so many respects that the maxim, “falsus in uno, falsus in omnibus," destroys the reliability and value of their testimony. The evidence produced by the plaintiff, though largely circumstantial, when considered in detail and generalized, carries conviction as to the defendant’s guilt and establishes the plaintiff’s right to relief. The position of the co-respondent merits notice. He undertook to make clear the fact that he.was innocent of the wrongdoing charged, but signally failed in the task.' He evidently supposed that, though guilty, he was performing a necessary duty' in attempting to prove the contrary. This is not so. The first obligation of every individual is to abstain from familiarities or conduct which may connect his name with evil doing or the appearance of it. This is a duty owing to society, and, if observed, will prevent any person being connected with divorce scandals in the unenviable position of co-respondent. It will do more, it will stop divorces, —a desirable end. If, however, the individual so far forgets his duty as to do acts which connect him with such unpleasantries, he must, when he comes into a court of justice, testify to the truth, the whole truth, and nothing but the truth, or claim that privilege which is the right of every criminal,—to decline to answer questions that may tend to criminate or degrade him, tA. prevalent notion has gone abroad that a man found in flagrante delicto with a woman has her honor in his keeping, and is bound to defend it even to the extent of perjury. Ho such rule has ever found its way into morals or law, and such pretexts will not be tolerated for a moment as a defense to perjury. People who hold to such a sentiment are sadly in need of reformation. Chivalry and perjury are not convertible tgrms. It is far better that this be distinctly understood, that men may be deterred from liaisons, rather than have them believe that such, things are safe, and they may, by perjury, crush truth or hide guilt. When such matters get into the courts, the public may depend upon it that the evidence will be sifted by experienced hands, and the truth reached, however difficult the- ordeal may be. While the testimony of an interested party is competent, it is, nevertheless, weighted with interest, which impairs its value, unless it is corroborated, or so highly probable as to make it appear credible and believable. If a co-respondent declines to answer, he may, perhaps, be regarded by some as cowardly or unjust. If he answers straight out, he may be charged with appearing proud of his shame. But these are risks libertines must expect to brave. They owe their origin to the original sin, which is the thing to be avoided. Keep away from it. The position of the guilty, when exposed under the crucial test of judicial examination, is indeed an unhappy one. The penalty is heavy. The law has not endeavored to make it pleasant,—for it never encourages wrongdoing,—and has refrained from providing anything that makes it safe. Indeed, it is difficult to suggest any honorable way out of a dishonorable dilemma after you are in. With this admonition, which ought not to be without its lesson, the court must award the plaintiff that relief to which the law entitles him.

Decree in favor of plaintiff.


author: Bookstaver, P. J.

text:
    Charles T. Balch, Resp’t, v. Bernard Wurzburger et al. App’lts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Plbadisqs—Amendment—District court.
    An amendment, which deprives defendant of an opportunity to claim the right of removal from district court to common pleas, ought not to be granted.
    2. Same.
    Two actions in district court, each for wages or salary, should not be consolidated and changed into a cause of action for breach of contract.
    Appeal from a judgment of the district court in the city of New York for the first judicial district.

      Samson Lachman and Theodore Baumeisier, for app’lts; Dennis A. Spellissy, for resp’t.
   Bookstaver, P. J.

The record of the proceedings upon the trial begins as follows: “The court on motion of the plaintiff’s attorney allowed the amendment of the summons in the present suit by adding to the amount claimed, the amount named in the summons in the other suit between the same parties and grants an amendment to the complaint by making the cause of action a breach of contract instead of for salary.” By this amendment two actions, one begun December 19th, 1893, for §30, and one commenced January 24th, 1894, for $90, were in effect consolidated and the defendants in the second action were deprived of the defense which they had set up in that case of a former action pending. The amount claimed in each action separately was not sufficient to permit the defendant to remove it to this court; but after the amendment the amount was increased to a sum which did entitle defendant to do so. But he was by the amendment deprived of any opportunity to claim that right. This of itself deprived them of a substantial right, and ought not to have been granted for that reason. Besides the complaint in each of the two actions was for wages, while the amendment changed the cause of action to one for a breach of contract. In Dows v. Morrison, 2 Misc. 54; 49 St. Rep. 143, we held that it was error for a justice of a district court to add by amendment at the trial a cause of action for breach of contract, to a cause of action for salary due. Here two causes of action for wages or salary were practically consolidated and changed to a cause of action for breach of contract, which makes the error greater rather than less. Ho court has power to amend pleadings at the trial so as to introduce a new and entirely different cause of. action. In Dexter v. Ivins, 133 N. Y. 551; 44 St. Rep. 244, referring to an alleged change from an action for salary to an action, for damages for wrongful discharge, the court refused to reverse the judgment on the ground that no such change as was charged and relied upon by the appellants had in fact been made, but distinctly intimated that if such had been the case it would have been error. See also Cumber v. Schoenfeld, 16 Daly, 454; 34 St. Rep. 770.

The judgment should therefore be reversed with costs to the appellants. We cannot order a new trial of this case, as none could be had upon the pleadings as they stand.

Bischoff, J., concurs.


author: Pryór, J.

text:
    George Baumiller, Resp’t, v. The Workingman’s Co-operative Association, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Pleadings—General denial.
    In an action on a policy the defense that the action was prematurely brought cannot be availed of under a general denial.
    2. Same—Affirmative defense.
    That the plaintiff defaulted in proof of compliance with the condition of the policy, is a defense which the defendant should allege and establish.
    3. Appeal—Objection.
    That no sufficient proof of plaintiff’s claim was presented to the company, is waived by the omission of a seasonable and specific objection.
    Appeal from judgment of district court.

      W. B. Donihee, for app’lt; Joseph Steiner, for resp’t.
   Pryór, J.

In an action on a policy of insurance in the Workingman's Co-operative Association, for “ sick benefits,” the plaintiff had judgment; to reverse which the defendant urges the present appeal. He challenges the judgment upon three grounds:

First. That the action was brought prematurely, because before expiration of the thirty days allowed by the policy. The fact is not apparent; and it was an affirmative defense of which the appellant could not avail himself under his general denial.

Second. That no sufficient proof of plaintiff’s claim was presented to the association. We think otherwise; at all events the defect, if any, was waived by the omission of a seasonable and specific objection.

Thirdly. That the plaintiff defaulted in proof of compliance with the condition of the policy. But this, too, was a defense which the appellant should have alleged and established. Richmond v. Niagara F. Ins. Co., 79 N. Y. 230; Piedmont, etc., Ins. Co. v. Ewing, 92 U. S. 377.

Another answer to the appeal is, that the motion to dismiss the complaint omitted to specify the particulars of non-performance of conditions. Webb v. Odell, 49 N. Y. 583. The judgment consists with the justice of the case, and is not invalidated by any legal error.

Judgment affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    John J. Brady, as Administrator, etc., Resp’t, v. The Prudential Insurance Company of America, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Insurance—Life—Cancellation of policy.
    A provision in a policy that, in default of payment of premiums when due or within four weeks thereafter, the company should be at liberty to cancel the policy without further notice, implies that, until affirmative action is taken, the policy is to remain in full force and effect.
    Appeal from a judgment of the district court in the city of New York, for the fifth judicial district, rendered by the justice, without a jury, in favor of the plaintiff. Action to recover upon a policy of life insurance.

      William 0. Campbell, for app’lt; James A. Donegan, for resp’t.
   Bischoff, J.

The policy sought to be enforced in this action was one issued upon payment of weekly premiums and concededly the last premium was paid June 6th, 1892. The insured died August 9th, 1892 without having tendered the premiums in arrear; nor were such premiums tendered to the defendant Company at any time after the insured’s death. The main question litigated in the court below was whether, or not, the policy was in force at the time of the insured’s death. The policy expressly provided, among other things, that payment of the weekly premiums should be made on Monday of each week to the Company’s collector, but that if any premium should remain uncollected on the day of maturity it should be incumbent upon the insured to pay the premium at the Company’s Home-office, or to its authorized agent, within four weeks thereafter, in default of which the company should be at liberty to cancel the policy without further notice. The defendant did not cancel the policy until August 15th, 1892, six days after the insured’s death. We are of the opinion that the foregoing provisions of the policy fairly imply that affirmative action was to be taken by the defendant company to cancel the policy and that until such action be had the policy was to remain in full force and effect. Cook on Life Ins. § 98, p. 181; Scheu v. Grand Lodge Independent Forresters, 17 Fed. Rep. 214. Until such affirmative action was had the insured could not have successfully resisted payment of the defaulted premium if such payment was insisted upon by the defendant. It was optional with the defendant to cancel the policy. Hence the insured was in no position to urge as a defense to a demand for payment of the premium that the contract of insurance had expired. Accordingly the policy must be deemed to have been in force at the time of insured’s death, when it matured, and the beneficiary’s right to payment of the sum insured accued. The subsequent attempt of the defendant to cancel the policy could not enable it to escape liability. The conclusion reached renders futile any discussion of the question whether, or not, the policy in question is affected by the provisions of chap. 341, Laws of 1876, as amended by chap. 321, Laws of 1877.

The judgment should be affirmed, with costs.

Giegerich, J., concurs.


text:
    Sarah L. Cable, Resp’t, v. Roger V. Bonnell, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Landlord and tenant—Eviction.
    There cannot he a constructive eviction without a surrender by the tenant.
    Appeal from a judgment of the district court in the city of New York for the eighth judicial district, rendered by the justice, "without a jury, in favor of the plaintiff. Action for rent.

      P. O. Taiman, for app’lt; Douglass & Minton, for resp’t.
   Bischoff, J.

The plaintiff sued for rent, due under a written lease, and defendant set up a counterclaim of $250, “for work done under orders of the board of health.” By the terms of the lease, defendant was to make “ ordinary repairs ” upon the premises, and plaintiff, the landlord, assumed the duty of complying with the orders of the municipal authorities with regard to the condition of the same. ' It appears that defendant has been dispossessed from the premises at the expiration of the two months for which rent was claimed. The justice gave judgment for the plaintiff, disallowing the counterclaim, and, upon the evidence, we find no ground for disturbing his determination. Defendant failed to establish the fact that the repairs which he testified to having made, were required by order of the board of health, conflict of testimony appearing with regard to the single item of expense of $15 claimed by him to have been actually so incurred. Upon such conflict, the justice’s finding as to the fact is not, in this case, to be questioned, Weiss v. Strauss, 39 St. Rep. 78; and in so far as the other evidence given by defendant with regard to repairs to the roof, plumbing, etc., may be of concern, it formed no basis for a recovery under the pleadings. The one exception relied upon by appellant does not call for a reversal, since the verbal agreement sought to be established by the evidence excluded, with reference to the meaning of the words “ ordinary repairs,” was, if to be regarded in any way as admissible, entirely immaterial to the isáhes presented for litigation. , The fact that appellant remained in possession of the premises until dispossessed, disposes of the claim of eviction; there cannot be a constructive eviction without a surrender by the tenant. Boreel v. Lawton, 90 N. Y. 293. Judgment affirmed, with costs.

Bookstaver, P. J.,': concurs.


author: Bisohoff, J.

text:
    Jacob Furst, as Treasurer, etc., App’lt v. Simon Jacobson, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Appeal—Conflict of evidence.
    The decision oí a district court justice upon a conflict of fact, which practically requires him to disbelieve the evidence given by one or the other side in reaching his conclusion, will not be interfered with by the common pleas, in the absence of any apparent bias, prejudice or failure to deliberate properly upon the whole evidence.

      Appeal from a judgment of the district court in the city of New York, for the fourth judicial district, rendered by the justice, without a jury, in favor of the defendant. Action for money had and received.

      Benj, F. Gretsch, for app’lt; George Hahn, for resp’t.
   Bisohoff, J.

The action was brought to recover the sum of $20 alleged to have been loaned to the defendant by the Furriers’ Union, an unincorporated association^! which plaintiff was treasurer, the defendant being a member of the association. In support of his claim the plaintiff produced four printed forms, each setting forth a promise to pay the sum of $5 loaned at the time of execution, this re-payment to be made when the subscriber should be at work in the season of 1892. It is undisputed that these papers were signed by the defendant, and that at the time of such signing he received the amount in question, but the defendant’s testimony shows that, in the parties’ understanding, the money was given to him absolutely upon his application, as of right, he being at that time a member in good standing and “ locked out ” in accordance with the order of the association. He further testified that he was informed at the time of the transaction that the papers referred to were merely receipts which it was necessary for him to sign, and that relying upon this representation and being unable to read English he did so sign them. According to the extract from the constitution of the association, read upon the trial j it appears that no loans were permitted and that all money paid to members was to be in the form of gifts. Evidence was given for the plaintiff to the effect that an amendment to this constitution had been made about a month previous to the payment in question, whereby loans were provided for, but no record of its adoption was produced. The witness, testifying to this fact, further stated that the defendant was present at the meeting when the amendment was adopted, and that he voted in favor of it. This the defendant flatly denied, stating that he was not present at such meeting and had no knowledge of the amendment. We consider that the courts determined adversely to the plaintiff is supported by the evidence, for, by giving credit to the defendant’s testimony, a finding that the contract to repay was induced by false representations properly results and an availing defense is thus established. With the justices decision upon a conflict of fact which practically required him to disbelieve the evidence given by one side or the other in reaching his conclusion, we are not to interfere in the absence of any apparent bias or prejudice or failure to properly deliberate upon the whole evidence. The few exceptions taken upon the trial are not relied upon by appellant, and an examination of them discloses no error.

Judgment affirmed, with costs.

Bookstaver, P. J., concurs.


text:
    John Hutton, Resp’t, v. Jeremiah C. Murphy et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Pleadings—Non-joinder.
    In an action against one partner to recover damages for the negligence of his firm, the defense of non-joiner of necessary parties defendant is invalid.
    3. Parties—Appearance.
    The voluntary appearance of a defendant obviates the need of serving him with the summons.
    3. Appeal—Exceptions.
    Exceptions to the admission of evidence are not the subject of review, where no ground of the objection is stated. ,
    A Damages—Negligence—Horse.
    In an action for injuries to a horse through the negligence of defendant, the sums expended for its treatment, and for the hire of a horse to take its place during such time, are proper items of damage.
    Appeal from a judgment of the district court in the city of New York for the third judicial district, rendered by the justice without a jury, in favor of the plaintiff. Action to recover for injuries to personal property; such injuries having been occasioned by the negligence of the defendants’ servants while engaged in the driving of a team.

      Hyland & Zabrislae, for app’lts; William K Cook, for resp’t.
   Bischoff, J.

The summons as it was originally issued out of the court below, and served upon him, named Murphy as the only defendant. On the return day the justice, on motion of plaintiff’s counsel, and under objection by counsel for Murphy, directed that the summons be amended by adding, as parties-defendant, the names of O’Beirne and Finn. Assuming that the justice erred with regard to the allowance of the amendment the error was available, if at all, to the defendant Murphy only, the other defendants, subsequently added, being concededly not before the court at the time. Murphy, however, was in no sense aggrieved by the assumed error. His defense of non-joinder of necessary parties-defendant was invalid.. The principle that there is no contribution between wrong-doers does not obtain where a person is made a wrong-doer bv inference of law only, Dicey on Parties, 2nd Am. ed. Ch. XXVII, Rule 1,04, p. 492; and the action being one to recover damages in tort for the negligence of the co-partnership firm of which Murphy was a member at the time was maintainable against each member severally, or against them jointly, id. Roberts v. Johnson, 58 N. Y., 613; Dyett v. Hyman et al., 129 N. Y., 351; 41 St Rep. 644. The authority of the court below to amend the pleadings is unquestionable. Runge v. Esan, 6 Misv. R. 147; 56 St. Rep. 409. From the justice’s certificate to the return of the proceedings in the court below it appears that all the defendents appeared in the action, and this is supported by the minutes of the trial which are made a part of the return.

The voluntary appearance of the defendants O’Beirne and Finn obviated the need of serving them with the summons. Code Civ. Pro. § 3209 ; Consolidation Act, chap. 410, Laws of 1882, § 1296; Abramson v. Koch, 57 St. Rep. 512; 27 N. Y. Supp. 310. Murphy was admittedly so served. The jurisdiction of the court below touching the persons of each of'the defendants to render the judgment appealed from is therefore unassailable.

The action was brought to recover damages sustained by reason of a collision between plaintiff’s horse and a vehicle in the control of defendants’ servant in the course of his employment, which collision resulted in injuries to the horse necessitating the destruction of the latter after some continued treatment. We find ample evidence in the record to support the justice’s determination that the accident in question occurred through the negligence of defendants’ servant in driving at a high rate of speed and in failing to check his progress when plaintiff’s horse was caused to cross the street by its rider, it appearing that the defendants’ wagon was at a sufficient distance from the horse, when the act of so crossing the street was attempted, to justify the attempt, and to have enabled the accident to have been avoided had ordinary and reasonable care been exercised by the defendants’ driver. The account of the occurrence as given by this driver, testifying in behalf of the defendants was to some degree at variance with the testimony given for the plaintiff as to the intervening space between the wagon and plaintiff s horse, and the evidence was in direct conflict upon the question of the driver’s endeavor to check his speed. The defendants' witness also testified that his wagon was impelled forward at the time of the accident by reason of its having been struck from behind by a truck, he having suddenly reined in his horse ; but there was also testimony given by a police officer, who was present at the time, that there were no other wagons about when the accident occurred. The driver’s story was rendered somewhat improbable by the fact that a slight scratch upon the back of the wagon was the only visible result of this alleged impact, according to the witness, and it appeared that great force would be required to have caused the injury to plaintiff’s horse, i. e„, to drive the shaft of the colliding wagon eight inches into its flank. The determination as to the witnesses’ credibility, and of the truth upon a conflict of the evidence, was eminently for the trial court, and we find no sufficient reason for disturbing the judgment upon the evidence.

The exceptions taken upon the trial with regard to the admission of evidence are not the subject of review, no ground of the objection having been stated. Meyers v. Cohn, 53 St. Rep. 223 ; 4 Misc. R 185; Cruikshank v. Gordon, 118 N. Y. 178; 28 St. Rep. 784. The motion made in one instance to strike out testimony appealed to the jhstice’s discretion and is not reviewable upon appeal. Platner v. Platner, 78 N. Y. 90, 101. The exception to the denial of the motion to dismiss the complaint, made upon the ground that contributory negligence was shown, presents no error in our view of the evidence. The award of damages is sustained .as to its amount by the proof given at the trial, and in computing this amount it was proper for the justice to consider the sums expended by plaintiff for the treatment of the injured animal and for the hire of a horse to take its place while under treatment. Laytin v. Brady, 20 N. Y. Supp. 534 ; 48 St. Rep. 935 ; Smith v. Consumer's Ice Co., 52 Supr. Ct. R. 430; Albert v. Bleecker St., etc., R. R. Co., 2 Daly, 389 ; Sutherland on Damages, Vol. 1, p. 100, and cases cited. The judgment should be affirmed as to each of the defendants, with costs of this appeal. Bookstaver, P. j., concurs.


text:
    Fannie Kahn, App’lt, v. Leopold L. Weill, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Principal and agent — Liability.
    A party, who does not reveal that he is acting as an agent but negotiates- and contracts in his own name, is liable as principal.
    Appeal from the district court in the city of New York, for the ninth judicial district.

      Aaron Kahn, for app’lt.
   Bookstaver, P. J.

This action was brought on a breach of warranty. From the return it appears that on the sale of a gilt parlor suit of furniture the defendant warranted the gilding for one year and the upholstering for two years, and agreed to keep, it in repair for that length of time. This was in writing and was not disputed, nor was it disputed that the gilding came off in; patches because of careless manipulation on the part of the de-:' fendant in gluing on a portion of the upholstering. Repeated requests were made of the defendant to repair the furniture, which he neglected to do. Finally the plaintiff demanded back the purchase price and offered to return the furniture to defendant. The defense is extremely hazy; some attempt was made to show that the frames of the furniture were purchased of other people, and that the defendant was only responsible for the upholstering; but this is clearly rebutted by the bill of sale, in his own handwriting. He also claimed that he offered to repair the furniture, but he never made such offer until after this action was brought, although frequently requested to attend to it before. The justice probably rendered judgment in defendant’s favor because he testified that he did not own the business but carried it on for his sister, Minnie Weill. In arriving at this conclusion he must have overlooked the fact that all the negotiations were carried on between the parties as principals. The defendant at no time revealed the fact, if it was a fact, that he was acting as agent for anyone; the bill of sale was made out and signed by defendant in his own name, or rather the name of “A. L. Weill,” which certainly was not the name of Minnie Weill, and it was not shown that the A. L. Weill was the name of any other person than the defendant. As the plaintiff was corroborated by her husband, another witness and the bill of sale, and as this testimony was not denied by the defendant the verdict should have been in her favor.

The judgment is reversed and a new trial ordered, with costs to the appellant.

Pryor, J., concurs.


text:
    Michael C. Kuhn, Resp’t, v. The American Automatic Knife and Novelty Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)
    1. Appeal — Exceptions.
    Exceptions, which do not present the ground of objection, are unavailing for purposes of review.
    8. District court — Pleadings—Reply.
    No reply is required in the district court.
    Appeal from a judgment of the district court in the city of New York, for the second judicial district, rendered by the justice, without a jury, in favor of the plaintiff. Action for money due on contract for work, materials, etc.

      M. Hallheimer, for app’lt; Thomas F. Coeti, for resp’t.
   Bisohoff, J.

The action was brought to recover a balance due upon a contract, by the terms of which plaintiff was to manufacture and supply a certain quantity of dies, cutting apparatus and steel tools to the defendant for use in its business. Defendant set up a breach of the contract, in that the goods furnished were not cut and fitted to an exactitude required by the agreement of the parties, and, further, made certain allegations in its answer, which were characterized as counterclaims, whereby it was set forth that certain expense had been incurred by defendant by reason of this alleged failure of performance upon plaintiff’s part. Agreeably to their respective contentions, evidence of considerable extent was adduced for either party, with regard to the manner in which the work had been performed, and a conflict resulted which called for that determination by the justice which was peculiarly within his province, and with which this court has uniformly declined to interfere in the absence of apparent injustice. There was ample evidence to support the judgment in plaintiff’s favor, and, further, it appeared from the testimony of one of the defendants’ witnesses that absolute exactness in manufacture of the goods was not contemplated by the contracting parties.

It was claimed that the court had no jurisdiction of the person of defendant upon a ground that its place of business was in Kings county, but on the evidence presented upon this question, the justice was well authorized to find that, as a matter of fact, this corporation had a place of business within the jurisdictional limits. The record is liberally punctuated with exceptions taken by appellant, but upon a careful examination they are found to be in no way of sufficient merit to require a reversal of the judgment. Those taken to rulings upon questions asked by plaintiff’s counsel on the direct examination failed to present the grounds of objection in all but one or two instances, and are unavailing for purposes of review. Meyers v. Cohn, 53 St. Rep. 223; Malcolm v. Lyon, 46 id. 921. Many exceptions were taken 'to' the court’s refusal to allow the introduction of much obviously cumulative testimony, and to other rulings, relative to the order of proof, which rested entirely within the court’s discretion. Consideration of these numerous exceptions, in detail, is uncalled for and would in no way be of benefit to appellant. It is claimed for the appellant that two of his witnesses were erroneously excluded from testifying as experts, but upon the evidence given in support of their qualification we find no reversible error in the justice’s determination of this preliminary question of fact. See Slocovich v. Orient Ins. Co., 106 N. Y. 62; 12 St. Rep. 806. It is contended that the plaintiff did not serve a sufficient reply to defendant’s counterclaims, and that, therefore, judgment upon the pleadings for the excess of such counterclaims over the amount demanded in the complaint, should have been awarded. These counterclaims were most inartificially pleaded, containing merely an allegation of the necessary expenditure, by reason of the facts alleged, with no demand for affirmative judgment, the relief prayed being merely that the complaint be dismissed! Furthermore an allegation was embodied with this pleading to the effect ' that defendant had instituted an action, then pending, for damages sustained by reason of this alleged breach of contract, the express subject matter of such counterclaim, which allegation would, in general, be available alone to defeat a recovery by a defendant. Code Civ. Proc. § 495. At the trial no motion for judgment on the pleading -was made, the defendant having merely moved that the “ complaint be dismissed” upon the ground that “no reply had been served,” and the justice further called counsel’s attention to the fact that a reply had actually been served before the trial. It is now claimed that the reply served was not sufficient and that the defendant was entitled to judgment. Apart from the apparent insufficiency of defendants pleading, and the fact that a proper motion for judgment was not made, there is no force in this contention, for a reply is not required in the district courts. The pleadings to be interposed in justices’ courts are enumerated in § 2935 of the Code of Civjl Procedure and this section regulates as to pleadings in the district courts. Laws of 1882, chap. 410, § 1347. No provision for service of a reply is found in the above section of. the Code, and it has been uniformly held that a reply is unnecessary and inadmissible in justices’ courts, new matter in the answer being deemed to be controverted for the purpose of forming an issue. Conklin v. Field, 37 How. 455 ; Hodges v. Hunt, 22 Barb. 150; Wilcox v. Palmeter, 2 Hun, 517.

The counterclaim was therefore not admitted upon the pleadings and the justice having found that, there was no breach of contract upon the plaintiff’s part, the defendant’s clidm, arising out of the alleged breach, necessarily failed.

Upon the record we find no ground for disturbing the judgment in the interests of substantial justice.

Judgment affirmed, with costs.

Bookstaver, P. J., concurs.


author: Pryor, J.

text:
    Charles V. Morgan, Resp’t, v. Etta Goldberg et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Appeal—Conflicting evidence.
    The common pleas will not overrule the decision of a justice of the district court on a direct conflict of evidence.
    3. Lease—Memorandum—Waiver.
    A paper, which is intended to be a mere memorandum to certify that the tenant had a lease, does not operate as a waiver of any of the terms of the original lease.
    Appeal from judgment of a district court in favor of landlord in a summary proceeding.

      Louis Steclder, for app’its; B. 0. Henderson, for resp’t.
   Pryor, J.

In a summary proceeding the tenant asserted a right of possession by virtue of a privilege of renewal. Bat, the privilege of renewal was conditioned on a written notice of at least ninety days before the expiration of the original term; and the trial court negatived the fact of the notice. The testimony on behalf of the tenant is of a character that vindicates the incredulity of the justice. Even upon paper it provokes suspicion ; but, then, doubtless the manner of the witnesses was indicative of their untruthfulness. In any event, it is not for ns to overrule the decision of the justice on so direct a conflict of evidence. Lynes v. Hickey, 4 Misc. 522 ; 54 St. Rep. 120.

Shortly after the death of the original lessee, upon a representation of his widow that her husband’s copy of the lease was lost and a request that the landlord would “give something to show that they had a lease,” he delivered this paper: “Received from Ettie Epstein the sum of sixty-five dollars on account of rent for house Ño. 248 East Broadway, leased for five years, with the privilege of five, commencing May 1st, 1888. Said premises are rented at the rate of seven hundred and twenty-five dollars ;” subscribed by the landlord. The appellants insist that here was a waiver of the stipulation for notice of renewal in the original lease; hut the contention is plainly untenable. On the contrary, the paper was a mere memorandum to certify the fact that the tenant had a lease. It was not intended as a surrender of the lease and the substitution of a new contract of letting; else assuredly its terms would have been more precise and complete. A lease of valuable property for a period of ten years, was never so drawn.

Judgment affirmed with costs.

Bookstaver, P. J., and Bisciioef, J., concur.


text:
    John Riegelman, Resp’t, v. The Third Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Negligence—Matter of law—Collision.
    _ It is negligence, as matter of law, for a car to be started up so as to collide with a carriage, while in the act of turning and crossing the track at a distance of only from 40 to 100 feet.

      2. Same—Contributoby.
    A party may recover, notwithstanding his own negligence exposed him to the risk of injury, if the company, after becoming aware of his danger, fails to use ordinary care to avoid injuring him.
    3. Same.
    There is no negligence in passing upon the track in front of a cable car which has come to a full stop, though but a short distance away.
    Appeal from a judgment of the district court in the city of New York for the tenth judicial district.

      Henry L. Scheuerman, for app’lt; William M. Watson, for resp’t.
   Bookstaver, P. J.

This action is brought to recover for in-' juries to plaintiffs wagon growing out of a collision with a north bound cable car of the defendant company on December 30th, 1893, on Third avenue between 119th and 120th streets. Appellant contends that the respondent was guilt}'- of contributory negligence and that the record shows no evidence of defendant’s negligence. We have examined the record and find that the evidence was contradictory on both of these points and was such as would not have justified the trial justice in withdrawing either of these questions from the consideration of the jury, and its finding, therefore, on these questions, is conclusive upon us in the absence of anything to show that the jury were influenced by passion, bias or prejudice. But it is claimed that the trial judge erred in his charge to the jury. The circumstances of the accident were as follows: The plaintiff was sitting in his carriage on the east side of Third avenue, about midway between 119th street and 120th street, the horse was headed south, and as the plaintiff was turning him about in order to drive up the avenue, the carriage was struck by a north bound cable car and crushed against one of the pillars of the elevated railroad. In respect to the accident, the justice charged: “The rule of law is that the plaintiff must show not only that the defendant was negligent, but that he himself was free from negligence. If you believe the plaintiff’s statement, in my judgment lie has so shown; and if you believe the plaintiff that at the time he started to turn his horse’s head to cross the track, the defendant’s car was at a dead stand-still at 119th street, and that while said car was so standing, plaintiff’s horse was crossing the track, he was doing what he had a right to do : if the gripman of the defendant’s car saw him and attem pted to get through while the plaintiff was in the position stated, the gripman had no right to do so. * * * The plaintiff has attempted to show that this car was stopped at the crosswalk when he started to get across the track, and if this is so and he was doing that which he had a right to do, the defendant had no right to proceed and collide with the plaintiff; the gripman should have waited until the plaintiff’s horse and roekaway got out of the way before proceeding on his journey with the car.” These portions of the charge are quoted because they are relied upon by the appellant as being erroneous. All the facts here said by the justice to have, been stated by the plaintiff in his testimony, had been, as the record shows, so stated by him. There is therefore no question of an inaccurate review of the testimony. Some parts of the charge omitted bear strongly against the respondent and show that the appellant has ho ground for complaint because of partiality. The justice was right we think in holding as he substantially did, that as a matter of law it was negligence for the car to be started up so as to collide with the plaintiff’s carriage while his horse was crossing the track and in the act of turning and at a distance of only from 40 to 100 feet. The evidence as to the distance is very conflicting, and even plaintiff’s testimony which is all that has to be considered as the question is presented, is not very clear. The appellant’s counsel argues with much force that on the whole the plaintiff’s own testimony shows that the car was not more than from 10 to 35 feet distant at the time the plaintiff drove his horse upon the track and at the time the car was started; but this does not avail, because the less the distance the greater the negligence in starting the car while the track immediately ahead was obstructed. Upon the principle followed in Mallard v. Ninth Ave. R. R. Co., 15 Daly, 376; 27 St. Rep. 801, and in Thomas v. Kenyon, 1 Daly, 132, 142, that a plaintiff may recover notwithstanding his own negligence exposed him to the risk of injury, if the defendant after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, the question of plaintiff’s negligence is not necessarily involved. But as both the trial and the appeal have proceeded upon the theory that this question is at issue, we will say that in our opinion there is no negligence in passing upon the track in front of a cable car which has come to a full stop, although but a short distance away. The exigencies of traffic on crowded streets demand that other vehicles be not required to wait for an indefinite time to ascertain how long a stop will be. made by a cable car. For these reasons we think the trial justice did not err in expressing an opinion as to the negligence of the defendant under the circumstances stated by plaintiff, provided the jury believed that testimony. The other portions of the charge clearly stated the _ law in regard to the negligence of the plaintiff and the effect it should have upon a recovery in the action. lie charged, among other things, that “ plaintiff was bound to show he did not contribute to the injury and that he did not do anything by which it took place. If you believe he did any act by which tins, injury took place, then he cannot recover. If the statement of defendant’s witnesses be correct, the plaintiff cannot recover at all.”

The judgment should be affirmed, with costs. Bischoff, J., concurs.


text:
    Annie E. Smith, Resp’t, v. Charles E. Maxfield, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

      1. Landlord and tenant—Relation.
    A landlord cannot have two tenants for the same property during the same time.

      2. Same— Holding over.
    The fact that a few articles, belonging to the tenant, were permitted to remain on the demised premises after the expiration of the lease, with the consent of the landlord’s agent, does not constitute such a holding over as to charge.the tenant with subsequent rent.
    3. Same—Repairs.
    A clause in the lease that the tenant should repair and make good any damage occurring through any neglect on his part, does not make him liable for all expenditures which the landlord may see fit to make.
    Appeal from a judgment of the district court in the city of New York for the third judicial district.

      Abner C. Thomas, for app’lt; J. O. McEachen, for resp’t.
   Bookstaver, P. J.

This action was brought to recover $82, of which $32 was claimed for rent for one month and $50 as damages for injuries to the leased premises. The justice gave a judgment for $43.17, but the record does not show how the amount was made up. At the close of the plaintiff’s case a motion was made to dismiss the complaint, which was denied and an exception taken. By the terms of the lease between the parties, it expired on the 1st day of May, 1893. In April of that year and before the end of that term, the plaintiff rented the property to one Fisher, who paid $16 on account for the month of May, and he was therefore entitled to the possession of the premises, and the plaintiff accepted him as tenant. This being the case, plaintiff could not recover from the defendant for the month of May. He could not have two tenants for the same property for the same time. Gardner v. Keteltas, 3 Hill, 330 ; Mechanics & Traders Fire Ins. Co. v. Scott, 2 Hilton, 550. The grounds upon which it was sought to hold the defendant for rent for the month of May arose from the fact that a few articles belonging to defendant were left in the premises, the facts in regard to which appear to be as follows : Prior to May, the defendant gave notice to the plaintiff that he intended to move. On the morning of that day nearly all of the furniture of the defendant was removed from the premises, and the keys were delivered to the janitress, who received and retained them. At that time some one of defendant’s family told the janitress that they would come back for a crib and piano, which were left in the premises, to which she answered “All right.” The latter testified that in similar cases articles of furniture were usually allowed to remain until they could be conveniently removed, to oblige tenants, and if they proved to be in the way, they were removed to her own apartments or some other place. In this case, they were no inconvenience to any one as Fisher, the new tenant, did not move in. 'It would therefore seem to be clear that the defendant surrendered the premises to the agent of the plaintiff on May 1st, and that the articles which remained in the rooms after that date were allowed to remain by the agent of the landlord, and that this was pursuant to a custom recognized by the plaintiff and her agent in such cases. We therefore think there was no holding over and that the court erred in allowing rent for a month, if that, constituted any part of the sum of $43 awarded to the plaintiff. H on the other hand all of this sum was allowed for damages to the freehold, we think it was excessive. The evidence of the plaintiff was that she expended $50 in repairing the apartments. But the case seems to have been tried by the plaintiff on the theory that any expenditure she might have seen fit to make, was chargeable to defendant The proof was that the house had been built about five years and had been occupied by another tenant previous to the defendant; who had used it up to May 1st, 1892, when that tenant moved out. There were holes in the wall caused by nails having .been driven in. The wall paper was somewhat defaced and it was thought sufficient to patch it by pasting pieces over the holes. There is no claim that new paper was put on defendant’s premises when he took them. The only evidence on the part of the plaintiff as to the condition of the flat in May, 1892, is that plaintiff’s husband thought in was in fairly good condition, and expended $10 or $12 in touching up the hardwood polish and rubbing it down. After the defendant had occupied the apartments' for another year with his family, the repairs alleged to have been done by the plaintiff were very complete. The woodwork was all rubbed down, holes filled up with putty, to match the woodwork ; it was then varnished and cleaned and brought to a good finish. ¡New gold paper was applied to two of the rooms and the walls of the kitchen were painted and in other respects the apartments were made as nearly new as possible, at an expense of $50, some portion of which was certainly chargeable to the damage caused by the former tenant. Besides which some allowance ought to be made for tho imperfect condition of the premises after the repairs. But the covenant in the lease on the defendant’s part was not to restore the premises to any better condition than he found them, but was only that he should repair and make good any damage occurring through any neglect on his part. The judgment therefore should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bischoff and Pryor, JJ., concur.