author: Putnam, J.

text:
    Selden S. White, Resp’t, v. Robert Wiley, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

      Trespass—Useov adjoining,lands when highway impassable.
    Where a highway is absolutely impassable a traveler may use the land of an adjoining owner without his consent; but he must go upon it near the highway and use as little of it as possible.
    Appeal from judgment in favdr of plaintiff for six cents damages and costs, rendered upon trial by the court without a jury.
   The following is the opinion at special term:

Putnam, J.

This action is brought to recover damages for trespasses alleged to have been committed in June and July, 1889. It was originally commenced in justice’s court, and, defendant pleading title, was transferred to this court.

The plaintiff shows possession of and title to the premises in •question prior to the alleged trespasses and the acts of trespass alleged in the complaint.

Defendant’s claim is that the locus in quo is a public highway;. second, or that it is a private way, reserved to one Louis Baker and liis assigns, and that defendant is an assignee of said Baker; third, defendant claims that at the time of the trespasses in question the highway adjoining the locus in quo was obstructed, and that defendant passed over the adjoining premises of plaintiff, necessarily to avoid such obstruction, as he lawfully might.

First. I do not think that the evidence establishes the fact that the locus in quo is a public highway, even if the defendant, under the pleadings, is in a position to assert that defense, which is quite doubtful. The evidence rather shows that the locus in quo was a vacant plot in front of plaintiff’s hotel, allowed to so remain by plaintiff and his grantors, and which people from time to time drove over rather by license than under a claim of right, and which plot appears to have been so used, not in any particular roadway, but in all parts of it. The evidence fails to show a highway, either by a public user for twenty years, or in any other way.

Second. As to the claim asserted in the answer and on the trial, that the locus in quo was a private way reserved to Louis Baker and his assigns, and that defendant is an assignee of said Baker, I think the reservations in the deeds read in evidence to Louis Baker and his assigns should be deemed rather a right of way “ appurtenant ” to some lands held by Baker, than a right of way-“in gross.” Washburn on Basements, 3d ed., p. 10.

If appurtenant to lands, the assignee to whom the right of way is reserved is an assignee of such lands. If the right of way reserved is one in gross it seems doubtful whether it can be assigned. See Washburn, 3d ed., page 10; 3d Kent’s Comment’s, 419-420; 2 Bouvier, 657.

But in any view of the case the reservation in the deeds could not give to Baker the right to make the public his assignee. It did not authorize Baker to make the lot in question a public highway. Yet this, in effect, is what the defendant claims. Concede that Baker could, by a proper conveyance, assign his interest in the way in question to any person or persons. It does not follow that he could authorize the highway commissioner to use it as the public highway during the period that the highway bridge was out of repair.

In my view, no assignment that Baker was authorized to make (if he was authorized to make any) was shown. It must be remembered that the lot in question was plaintiff’s. He had the right to the use of it, subject only to such right in it as was reserved to Louis Baker by deed. That use, as reserved in the deed, meant only the private use by Baker or his assigns. It did not mean a public user. If the claim of defendant is correct, Baker could not only have made the lot in question a public highway for a short period, but could have just as well made it a highway perpetually, and thus deprived plaintiff of his land. I think the deed gave Baker no such right.

Third. In my judgment the real question in the case is whether, under the circumstances shown, it was necessary for defendant or the public to pass over the lot in question, on account of the obstruction in the adjoining highway, caused by the defective bridge. On this question I have had, and have, serious doubts. On carefully considering the evidence in the ease, 1 have finally reached the conclusion that the evidence fails to show any necessity for the use made by defendant of plaintiff’s land.

In Holmes v. Seely, 19 Wend., 510, it is said: “In respect to the public way, if there be an obstruction so as to make the ordinary track dangerous, the traveler may go extra viam, passing as near the original way as possible.”

In Bullard v. Harrison, 4 Maule & Sel., 387-392, quoted and approved in Williams v. Safford, 7 Barb., 310, Lord Ellenborough remarks: “That the plaintiff has no right to break out of the road and go at random over the whole surface of the close.”

In this case it appears that the defendant was a highway com- ■ missioner and the evidence shows that he established a ferry opposite the plaintiff’s lot and built a dock on the locus in quo, and sent the public traveling on the highway through plaintiff’s premises. I think the evidence shows that the public could have traveled on the side of the highway until they passed the bridge without at all trespassing on the plaintiff’s premises. If it were necessary to do a small amount of grading to make the highway passable this should have been done by defendant.

Conceding that this could not have been done by the defendant (under all the cases) he had no right to use any more of plaintiff’s premises than was absolutely necessary. As held in Holmes v. Seely, supra, defendant was bound to enter plaintiff’s land as near the highway as possible. It does not appear that he did so. He not only passed plaintiff’s lot at some distance from the bridge but passed over much more of it than necessary. ¡Nothing but absolute necessity justifies a traveler on a highway using the land of an adjoining owner without his consent and he can use what is absolutely required. It is not for the traveler, for his convenience or at his will, to ramble over another’s premises. He must go on it near to the highway and so as to use such land no more than absolutely necessary. If he does not he becomes a transgressor and is liable to an action.

In this case if defendant was not bound to keep within the highway he should have crossed the river so as to strike plaintiff’s land as near as possible to the road and so as to have only passed over a small corner of the lot.

I think the evidence establishes the fact that the defendant used more of plaintiff’s premises than was necessary, crossed said lot where he had no right to, and that therefore he is liable in this action. The damages, however, seem to be nominal. As the question of title is raised, plaintiff is entitled to the costs of the action.

Wilmer H. Dunn, for app’lt; J. F. Shedden, for resp’t.

Judgment affirmed, with costs, on opinion of court below.

Leabned, P. J., Landon and Mayham, JJ., concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    John McDowall, Resp’t, v. Cornelius Sheehan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    1. Manufacturing- companies—Trustee mat recover for services.
    A trustee of a corporation created under the manufacturing act, chapter 40, Laws of 1848, may recover for services rendered to the corporation.
    2. Same.
    Where a trustee has recovered against the corporation a judgment for such services, it is proper and necessary, in an action against a stockholder, under § 10 of said act, to prove the judgment.
    Appeal from judgment in favor of plaintiff.
    This was an action by plaintiff as a creditor of a corporation created under the manufacturing act, chapter 40, Laws 1848, known as the “ Saratoga Union,” to recover a debt from defendant, a stockholder, to the amount of his stock. Plaintiff was a trustee of the corporation, as well as a writer for it. Under § 10, stockholders are severally liable to creditors, up to the amount of their stock, until the whole capital stock has been paid in and a certificate to that effect shall have been made and recorded. Under §24, no stockholders shall be personally liable for a debt which is not to be paid within one year from the time it was contracted, nor unless suit is brought against the company within one year after the debt shall become due. The plaintiff’s claim was based on a contract for services, made March 18, 1887, and .$500 loaned July 27, 1887, for which a note was given. Certificate of incorporation was filed May 27, 1887. On October 16, 1888, plaintiff, having been at work to that date under said contract, brought suit on. these claims against the corporation (his services amounting then to some $1,400), and recovered judgment April 25, 1889. Execution was issued and returned unsatisfied. The defendant claimed that the money put by him in the corporation was a loan. A certificate representing the money was issued to plaintiff, who alleged upon tlie trial that he was acting for the defendant Sheehan, who did not wish his name to appear. The plaintiff paid nothing, and subsequently endorsed the certificate in blank, and it was handed to Sheehan. The recovery in this action was for $1,000, the amount of defendant’s stock.

      John Foley (J. W. Crane, of counsel), fór app’lt; Charles Lester, for resp’t.
   Learned, P. J.

There is sufficient evidence to show that defendant was a stockholder. He paid his $1,000 through Judge Putnam to the company, and he received through Judge Putnam a certificate issued in the name of McDowall and assigned by McDowall in blank. The acceptance and retention of this certificate showed that instead of making a present of the $1,000 to the company, he took stock therein. ,

It is true that he did not intend that his $1,000 should be so paid as to cause any personal liability. But Judge Putnam had been told that all the stock but $1,500 had been subscribed for (or paid) and had repeated this information to defendant, and thereupon had been authorized to pay the defendant’s $1,000 together with his own $500.

It turned out that the statement thus made to Judge Putnam was not true. But the plaintiff was not responsible for that error, and knew nothing of it. Nor can it be said that the plaintiff obtained anything by that untruthful statement and thus became responsible for it. The money paid by Judge Putnam went to the company and did not belong to the plaintiff.

There can be no doubt that for work done by the plaintiff for the company he had a right of action against it, although he was a trustee.

It was proper and necessary to prove the judgment against the company. The plaintiff then gave other evidence tending to show that the company owed him.

Even if the liability on the note could not be a ground of recovery in this action because the action against the company was not commenced within the year, yet that objection does not lie against the cause of action for plaintiff’s services. For the plaintiff’s services continued till October, 1888, and in that month the action against the company was commenced.

The defendant urges that some of these services were rendered before the company was formed. This is immaterial, since a ' sufficient amount of service was rendered after the company was formed, to make an indebtedness to the plaintiff of over $1,000. And the recovery is only for $1,000.

The plaintiff was not a stockholder, although these shares had been issued to him. That had been done because defendant did not desire to appear as a stockholder. But plaintiff never paid for the share and assigned the certificate to defendant at once, and defendant must have accepted it; for it was produced by him at the trial.

Judgment affirmed, with costs.

Mayham, J., concurs; Landon, J., not acting.


text:
    Calvin Tyler, 2nd, App’lt, v. James B. O'Reilly, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 18, 1891.)

    Evidence—Custom in selling goods.
    Plaintiff authorized defendant to sell lumber for him but did not state whether for cash or on credit. Defendant sold to P. on credit and P. failed. In an action by plaintiff against defendant the latter testified in his own behalf that he sold P. on credit, which was the usual way. Plaintiff then offered to show a universal custom to sell for cash. This was excluded. Held, error.
    Appeal from a judgment in favor of defendant. •
    Action to recover for a quantity of lumber which defendant had sold for plaintiff.

      James I. Ourtis {T. F. Push, of counsel), for app’lt; Alpheus Potts, for resp’t.
   Learned, P. J.

The facts may be briefly stated as follows: The plaintiff authorized the defendant to sell some lumber for him. Nothing was said about the terms of sale; whether for cash or credit. In a subsequent conversation between defendant and plaintiff’s son, defendant said he could have sold some and taken paper, but plaintiff would not like that; and plaintiff’s son said no. Afterwards defendant sold some to Powell, that is, he authorized Powell to take it. Powell proved to be irresponsible.

The defendant testified in his own behalf that he sold this lumber in the usual way of selling that kind of lumber; on credit.

Afterwards the plaintiff offered to show that it was the universal custom to sell lumber for cash, and that it was the exception to sell for credit. This was excluded and plaintiff excepted. The court non-suited the plaintiff.

As defendant has been permitted, in order to justify his action, to testify that it was usual, to sell such lumber on credit, it is plain that the plaintiff should have been permitted to deny this.

Further, the conversation between defendant and plaintiff’s son tended to show that before the actual sale defendant understood that he was to sell only for cash.

This made a question for the jury.

The duty of the agent is stated in 2 Kent’s Com., 622, and is so familiar that we need not repeat it. We think that the case should have gone to the jury and that the evidence above mentioned should have been admitted.

Judgment reversed, new trial granted, costs to abide event.

Landon and Mayham, JJ,, concur.


author: Hardin, P. J.

text:
    The People, Resp’ts, v. Cassius C. Corner, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Set ora—Not allowable against the state.
    In an action brought by the state upon contract, the defendant cannot set off damages by reason of the breach of other contracts by the state. To permit him to do so would be to allow him to do indirectly that which he could not do directly.
    Appeal from a judgment entered in Chemung county in favor of the-plaintiff for $10,661.96, upon the report of a referee. The referee found, viz. : “ That the plaintiffs between July 9, 1888, and January 21, 1889, inclusive, sold and delivered to the defendant at the New York State Reformatory at Elmira, brushes and brush materials at and for the price, and of the value of $11,627.97. All of said materials were so sold and delivered after August 2, 1888, and all of said brushes after that date, except $1,263.89, in value of the same.” He also found a payment had been made of $2,085.13. He also found the defendant indebted in $7.88 for moneys expended to the use of the defendant. As conclusions of law the referee found: First: “ That the counterclaim set up in the defendant’s answer is not available to the defendant or allowable against the state in this action or court.”
    In the defendant’s answer it was stated that sundry orders had been delivered to the officers of the New York State Reformatory at Elmira, and that the same had been accepted by the superintendent ; that the orders had not been filled and that “ the plaintiff herein had, for a good and valuable consideration, agreed to make, manufacture and produce for the defendant, and deliver to him, a large quantity of brushes, many thousand gross in number, and of various kinds and descriptions, which particular kinds and descriptions this defendant is now unable to designate. That of said orders, contracts and agreements, some, on the said 2nd day of August, 1888, had been partially carried out and kept by the said plaintiffs; and a partial- number of the brushes so to be manufactured by the plaintiffs and delivered to the defendant only have been so manufactured and delivered, while other of said orders or agreements the said plaintiff had not even partially complied with or carried out on the said 2nd day of August, 1888, and they had not manufactured or delivered to the defendant any of the brushes or goods which, under such orders or agreements, they had contracted to manufacture and deliver. * * * And defendant further alleges that by reason aforesaid set forth in this second answer and defense, all of which matters are herein set forth upon information and belief, he, the said defendant, has been damaged in at' least the sum of $10,000; and such sum this defendant asks this court to set off against any sum the plaintiffs may, upon the trial of this action, show themselves entitled to by reason of the matters set forth in the said complaint, and defendant asks that such damages as said defendant may show himself entitled to by reason of the matters set forth in this second answer and defense upon the trial of this action may be used to cancel or offset to the extent thereof the damages which the plaintiffs may, upon the trial hereof, show themselves entitled to by reason of the matters set forth in their said complaint, and that plaintiffs’ said complaint be dismissed; with costs, and for such other or further relief as to the court may seem just and proper.”
    Defendant gave some evidence tending to establish the allegations of his 'answer.
    The case states: “ Plaintiff’s counsel seasonably objected to all testimony offered by defendant tending to prove the counterclaim or cause of action alleged in the answer, on the ground that such claim was not available to the defendant or allowable against the state in this action, and at the close of all the evidence duly requested the referee to so find and hold.” The appellant requested the referee to find “ The defendant is entitled to recoup or counterclaim against the claim of the state and the amount due from defendant to the state in this action, the said sum of damages, or so much thereof as maybe necessary.” The referee refused so to find; an exception was taken to such refusal.

      Frederick Collin, for app’lt; Charles F: Tabor, attorney general, and Fraslus F. Babcock, for resp’ts.
   Hardin, P. J.

Appellant’s answer set up new matter, and under the answer he sought to establish new and independent orders given to the plaintiff; accepted by the plaintiff; a failure to perform in accordance with the orders and acceptances, and by reason of the breach to be allowed such prospective profits as would have come ' to him in the event of a fulfillment of the orders. Such new matter constituted a counterclaim. Wilder v. Boynton, 63 Barb., 547. Assuming that such new matter constitutes a cause of action in favor of the defendant, and that equitably and justly he was entitled to recover, by reason of such new matter, damages from the state, the question here presented is whether or no such recovery or allowance can be had in this action. If the plaintiff had not commenced this action, it is very clear and well settled by an unbroken line of authorities that the defendant could not have brought and maintained an action against the state. In seeking redress for the injuries sustained by him, if any, by reason of a breach of the terms of the orders referred to in his answer, his remedy would necessarily have been sought in a court of claims established by the state for ascertainment of damages in such and other cases. The People v. Dennison, 59 How. Pr., 157; S. C., affirmed 84 N. Y., 272.

Judge Rapallo, in speaking of the counterclaim in the case just cited, says: “Another mode of redress is provided by statute in such cases, and if the defendants have any just claim against the state they must apply for relief to the board of audit, the tribunal instituted by the state for passing upon such claims. As their claim was not triable or recoverable in this action, the judgment rendered herein does not conclude the defendants in respect thereto.” In Reeside v. Walker, 11 How., U. S., 290, it was said: To permit a demand in set-off against the government to be proceeded on to jud'gment against it, would be equivalent to the permission of a suit to be prosecuted against it. And however this may be tolerated between individuals, by a species of reconvention, when demands in set-off are sought to be recovered, it could not be as against the government, except by a mere evasion, and must be as useless in the end as it would be derogatory to judicial fairness.” In O’Hara v. State, 112 N. Y., 154; 20 N. Y. State Rep., 647, it was said: “ There is but little analogy between the position of a state in reference to the prosecution of claims against it and the condition of a citizen, subject at all times and in numerous tribunals to be brought into court and be prosecuted for his liabilities. The state can be prosecuted, in a legal sense, ■only by its own consent, and after it has created a tribunal to hear and decide claims against it” In Rexford v. State, 105 N. Y., 231; 7 N. Y. State Rep., 10, it was said: “ The state can only be sued by its own consent, and for liabilities which it chooses to .assume, People v. Dennison, 84 N. Y., 272, 281, and this has been •expressly held where the cause of action alleged rested upon some misfeasance or nonfeasance.” Appellant has called our attention to Danolds v. State, decided in this court in December, 1881, and affirmed by the court of appeals, 89 N. Y., 36. We find nothing in that case which sustains the contention of the appellant, it having been held in that case that after a valid contract has been entered into by the state it cannot “ destroy or avoid the obligation •of the contractthe case involved an inquiry into the force and validity of a contract, and the measure of damages for a breach of it. These questions had been presented to the board of audit, .and no question arose during the progress of that litigation akin to the one now before us.

In United States v. Giles and others, 9 Cranch, 228, a somewhat ■similar question to the one now before us was under discussion, and in the course of the argument it was said: “ This defendant could not maintain a suit against the United States. To give him the benefit of the set off would' be a violation of the prerogative •of the United States.” Thereupon “the court stopped the counsel for the United States upon this point, saying they were satisfied.” In the course of the opinion delivered by Livingston, J., it was said at page 237 : “If then, in a suit against Giles himself, a claim for these credits, under existing circumstances, could not be sustained, neither can it in an action on this bond, without permitting the defendant to do indirectly what the marshal could not have done directly, and in this way avail themselves of what the law seems to regard as a default, or at least a negligence on the part of their principal.”

Concurring, as we do, in the result reached by the learned referee, which he has fortified by an extensive opinion citing and reviewing numerous authorities, and the learned counsel for the appellant having conceded in the argument that he has “ been unable to find any New York state authorities squarely, responding to the question,” we may very appropriately omit further comment. We think the case was properly disposed of by the referee, and we therefore sustain his report.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Henry Griffin, Resp’t, v. Duane C. Jackson and Josephine, Jackson, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Justice’s court—Pleading.
    A complaint in justice’s court alleged that defendants are indebted to-plaintiff in a sum specified for a balance due to him for work and labor done for them at their request within six years last past, no part of which had been paid. Held, sufficient.
    2. Same—Default—Proof of claim.
    Defendants having made default, plaintiff testified that he had a claim against them for labor between certain dates named; that the labor was-performed at their request; that they had paid some on the work, and there remained due a sum named, no part of which had been paid, and that he had demanded such balance. Held, sufficient to sustain a judgment for such sum.
    3. Same—Summons.
    A clerical error in the date of the copy summons served will he disregarded where such copy correctly states the return day.
    Appeal from a judgment of the county court of Lewis county, affirming the judgment of a justice of the peace rendered in favor of the plaintiff for $16.45.

      F. Merriam Bagg, for app’lts; L. W. Fiske, for resp’t.
   Hardin, P. J.

Plaintiff before the justice in a complaint in-writing declared “ that the defendants are indebted to him in the sum of $13.25, being for a balance due to him from the defendants for work and labor done and performed for them at their request within six years last past, no part of which has been paid, and for which he demands judgment and costs.” Pleadings are to be liberally construed; especially so in a justice’s' court. The complaint alleges the defendants are “indebted to him,” and states what the sum of that indebtedness is, and also states that it is for balance due to him from the defendants for “ work and labor” done and performed for them at their request. In United States v. State Bank of N. C., 6 Pet., 29, the word “ due” found in a pleading was considered, and Judge Story stated that it was used to express the state of the indebtedness, and that when it was so used it was equivalent to the words “ owed” or “ owing,” and he added that it was sometimes used to express the fact that the debt had become payable. This construction was involved in the court of appeals in Allen v. Patterson, 3 Selden, 480. This case was cited approvingly in Blackmar v. Thomas, 28 N. Y., 71, in the opinion of Balcom, J., in which opinion he said: “The same-strictness in pleading is not required under the Code that was exacted by the courts under our former system of practice.”

We agree with the learned counsel for the appellant that upon the default of the defendants or their failure to appear before the justice, it became incumbent upon plaintiff to prove his cause of .action by legitimate and sufficient evidence. Armstrong v. Smith, 44 Barb., 123.

Section 2891 of the Code, relating to justices’ courts, is as follows: “ If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case.” It is insisted in behalf of the appellant that- the plaintiff’s evidence did not make out even aprima facie case. We think otherwise. The plaintiff testified as a witness, viz.: “ I have a claim against the defendants for labor, commencing 28th day of February, 1889, until 17th day of June, 1889; this labor was performed at their request; they have paid me some on the work; there remains due me now on .said labor $13.25, no part of which has been paid; I have demanded the said balance.” In our view the evidence is entirely sufficient to sustain the judgment rendered by the justice.

In Schoonmaker v. Spencer, 54 N. Y., 366, it was said, viz.: It is the uniform practice of the courts, in reviewing proceedings had before a justice of the peace, if possible, to sustain them by -every'reasonable and warrantable intendment.”

(2.) It seems the original summons was issued and dated June 22, 1889 ; it was made returnable June 29, 1889. The same was personally served upon the defendants. We do not regard the ■circumstance that the copy served bore, by a clerical mistake, the erroneous date of the summons as of June 29, 1889, of any importance. The body of the summons required the defendants to appear before the justice on the 29th of June. The original summons was correct as to its date, and the clerical error made upon the date of the copies served did not mislead the defendants. We think, for the reasons suggested by the learned county judge in his opinion, that the clerical error was properly disregarded; besides, § 3063 requires the county court, as well as this court, to disregard technical errors which do not affect the merits. We think the judgment of the justice was properly affirmed by the county court, and we must, therefore, sustain its action.

Judgment of the county court of Lewis county, affirming justice’s judgment, affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    The Empire Steam Pump Co., Resp’t, v. Horace Inman, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Sale—Acceptance.
    Plaintiff, in 1886, sold to defendant a steam pump on condition that the latter might return it if not satisfactory after thirty days trial; otherwise he was to keep and pay for the same. He did not offer to return it until October, 1888. In an action for the purchase price, it appeared that from January 1, 1887, to April, 1888, -defendant used the pump at inter vals, although complaining to plaintiff from time to time of its failure to work properly, and asking and receiving instructions how to remedy the defect complained of. Held, that his use of the pump and acts in relation thereto amounted to an acceptance thereof.
    :3. Same—Evidence.
    Defendant was not allowed to testify as to whether the pump worked satisfactorily when connected with the street water main or with the tank) and reservoir. Held, no prejudicial error, as the time allowed for tests had. passed, and the pump was not sold or represented to be capable .of working under pressure from the city water mains.
    Appeal from a judgment entered upon the report of a referee in Jefferson county.' Action to recover the purchase price of a. pump sold by the plaintiff to the defendant, sent to and delivered, to' him in the city of Amsterdam, N. Y.

      Peter J. Lewis, for app’lt; Kilby & Kellogg, for resp’t
   Hardin, P. J.

Plaintiff delivered to the defendant one No.' 2' steam pump, which it had agreed to sell to the defendant for the sum of $140. The referee finds, as a matter of fact: “ That the delivery of said steam pump to the defendant- was made in pursuance of an agreement in writing, entered into between the plaintiff and the defendant, on or about the 13th day of October, 1886, whereby the plaintiff agreed to sell and deliver to the defendant at the said city of Amsterdam the pump aforesaid, for the sum of $140; that defendant was to put up the said pump and give it a trial of thirty days, and if said pump did not work entirely satisfactory to the defendant, he was to return the same to the plaintiff at the end of said thirty days trial at the expense of the plaintiff; otherwise, defendant was to keep said pump and pay therefor the sum of $140.” While we find in the-appeal book a contrariety of evidence in respect to the facts stated in the finding which we have quoted, we think the evidence warranted the referee in making such finding, and that the same is-neither contrary to evidence nor against the weight of evidence. The referee further found as a matter of fact, viz.: “That since-about November 23, 1886, the said pump has been and remained in the possession of the defendant, at Amsterdam, aforesaid, and from about January 1, 1887, to about the month of April, 1888, the defendant continued to use the said pump at intervals, although complaining to plaintiff from time to time of its failure to work properly, and asking and receiving instructions from plaintiff how to remedy the defect complained of.” There is evidence to support the finding which' we have just quoted. The referee further found, viz.: “ That at the time of the delivery of said pump to the defendant, it was in " perfect condition as-a suction pump.” The referee found as a conclusion of law: “ That the acts of the defendant in retaining and using the said pump for the time and in the manner aforesaid, amounted to an-acceptance of the same by him.” Defendant has taken an exception to this conclusion of law, and his learned counsel insists tons that it presents error. We think otherwise. We think upon the evidence found in the appeal book, and upon the findings of fact made by the referee, he was justified in holding as a matter of law that the defendant had accepted the pump and became liable for the contract price.

In Brown v. Foster, 108 N. Y., 387; 13 N. Y. State Rep., 805, in a case somewhat similar to the one before us, it was said, viz.: “While the vendee is entitled to a reasonable time for ex-animation, long enough to put the machinery in motion and see it operate, if he seeks to reject it as not in accordance with the contract of sale, he must, do nothing, after discovering its true condition, inconsistent with .the vendor’s ownership. The intent of the vendee in using, the property after discovery of defects may be gathered from his acts as well as his words, and a statement of a refusal to accept does not, as matter of law, show nonacceptance or prevent the acts from being taken as substantial proof of an acceptance, not for examination, but for use.”

It seems from the evidence in the appeal book that the defendant was to have thirty days to try the pump and ascertain its'qualities and capacity and usefulness, and during that period make such tests as would enable him to either decline to become the purchaser thereof or to accept the same in pursuance of the order he had made for the pump. He did not reject it in the thirty days contemplated by the terms under which he received the same. He continued in the use of the same long after the expiration of the thirty days. His use of the pump and acts in. relation thereto amounted to an acceptance of the same. The referee found as a matter of fact that the defendant, “From about January 1, 1887, to about the month of April, 1888, continued to use the pump at intervals.” It appears by the evidence that the defendant used the pump for a considerable length of time under-conditions not known to plaintiff or stipulated for by them in the communications that he had with the plaintiff in respect to the pump. The defendant’s offer to return the pump in October, 1888, was quite late. He had by his use of the pump allowed the same to become rusty and otherwise impaired, and it was not in his power then to return the same in as good a condition as when he took it.

(2.) We think no prejudicial error was committed by the referee in disallowing the question put to the defendant as to whether or no the pump worked satisfactory to the defendant “ when connected with the street water main or when connected with the tank or reservoir. ”

The period in which the test was to have been made had expired ; and, besides, the pump was not sold by the plaintiff, or represented to be capable of working under pressure from the city water mains.

There are several other exceptions to rulings made by the referee, and the refusals to find, which we have looked at, but in the view we have taken of the case we do not deem them of such a nature as to warrant us in saying that the rulings and refusals of the referee were prejudicial to the appellant. We are of the opinion that the’ conclusion of the referee should be sustained.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    A. Melvin Bump, Resp’t, v. Michael Daheny, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Attachment—Affidavit.
    An affidavit stating that defendant, although indebted to numerous persons in the neighborhood, was sending out of the county and disposing of his hops, hay and other property and is not, to the knowledge of deponent, paying any of said debts ; that he is preparing to move out of the county; that in answer to demands he has replied that he did not know when he could pay deponent and makes no effort to do so ; that he is rapidly putting his personal property out of his hands or converting the same into money and will soon be beyond the jurisdiction of a justice’s court, is insufficient to warrant the issue of an attachment.
    2. Justice’s court—Attachment—Judgement.
    Where the defendant has been personally served and appears generally, an error of the justice in refusing to vacate an attachment granted in the action will not vitiate a judgment rendered on the merits.
    Appeal from a judgment of the county court of Madison county, affirming a justice’s judgment. On the 6th day of March, 1890, the justice issued a summons which was personally served on the defendant on that day by a constable by delivering to the defendant a copy, (see justice’s return folio 5). On the same day an affidavit was presented and an application made for an attachment, which affidavit was as follows : “ A. Melvin Bump, being duly sworn, deposes and says that he is the plaintiff in the above entitled action, and is entitled to recover of the defendant the sum of forty-eight, 72-100 dollars, with interest, on a certain demand assigned me by Thomas 0. Taylor of sixteen, 25-100 dollars, and interest from October 8th, 1889, over and above all counterclaims known to deponent, upon an account for goods, merchandise sold to the defendant by plaintiff, and the said Thomas O. Taylor, at the agreed price of sixteen, 25-100 dollars; that said goods of the assigned bill of Thomas O. Taylor were sold at various dates between and including April 26th, 1889, and October 8, 1889, no part of which has been paid, and the whole is now due; that the balance of said $48.72 viz., $30.47, is for feed and meal sold and delivered to defendant by plaintiff at Peterboro mills commencing on or about .1886, and ending September 30, 1889, no part of said $32.47 of which has been paid, and making due plaintiff at this date, with the assigned bill of Thomas O. Taylor, the sum of $48.72; that the said defendant has disposed of in part, and is about to dispose of the balance of all his property, and as deponent is informed and believes, with intent to defraud his creditors, and that defendant has removed property and is about to remove property from the county with a like intent; that the grounds of deponent’s belief are 'as follows, viz.:
    That defendant has shipped out of the county large quantities of hay owned by him and is rapidly disposing of hay, hops and other property, although he is indebted to various and divers persons.in the neighborhood, including deponent, and is not, to the knowledge of deponent, paying any of said debts, and is making preparations to move out of the county with all his property; that deponent has frequently asked defendant to pay said bill of $32.47, and defendant has only replied that he did not know when he would pay it, and made no promises or efforts to pay the same, although defendant has sufficient assets to pay the same; that defendant is rapidly putting his personal property out of his hands or converting the same into money and will soon be beyond the jurisdiction of a justice’s court, with all his property or money.
    A. Melvin Bump.
    Subscribed and sworn before me,)

      March 6, 1890. j
    H. Hiles Harrington,

      Justice of the Peace.

    On the 6th of March a constable, in virtue of the attachment, made a levy and an inventory of the property levied upon. The summons and the attachment were returnable on March 14th. On that day the defendant appeared especially and moved to vacate the attachment iqion the grounds there stated; the motion was overruled by the court and the return shows, viz.: “ Case called and parties appeared generally; ” plaintiff’s complaint was filed defendant’s answer was filed. The motion to vacate the attachment was renewed by the defendant, and the motion was denied.
    The case was by consent of parties adjourned to the 19th of March. On that day parties again appeared, and the plaintiff to maintain his action gave evidence entirely sufficient to establish his right to recover on the merits. The justice rendered a judgment on the 22d of March, 1890, for $48.72 damages, and $6.00 costs against the defendant, which was affirmed by the county court.

      John A. Johnson, for app’lt; Senn & Lownsherry, for resp’t.
   Hardin, P. J.

Under § 2906 of the Code of Civil Procedure, the plaintiff in order to entitle himself to an attachment was required to show by affidavit to the satisfaction of the justice that the defendant “ had departed or is about to depart from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons ; or keeps himself concealed, with the like intent.” We think the affidavit was insufficient. In Thompson v. Dater, 32 N. Y. State Rep., 363, it was said: “ Attachments are not to be granted on beliefs and suspicions. They operate to give an advantage to one creditor over others. And some wrongful act, or the evident intent to do some wrongful act, must be shown to justify them.” In Morris v. Talcott, 96 N. Y., 107, it was said: A party, therefore, relying upon the establishment of a cause of action, or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tend ■ ing to establish a probability of guilt," in order to maintain his claim.” Wo are therefore of the opinion that the justice committed an error in denying the several motions made to vacate the attachment. The question therefore arises, what is the effect upon the judgment rendered by the justice ? Assuming as we do that the justice ought to have granted the motion to vacate the attachment, still as the summons was personally served he had jurisdiction of the defendant and of the subject matter, and was authorized to hear the proofs and give judgment thereon. It is provided in § 2917 of the Code of Civil Procedure, viz.: “ Vacating-the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action; or where the summons was personally served upon him.”

Had the justice vacated the attachment in virtue of the section we have just adverted to, the justice would still have had jurisdiction “tohear and determine the action,” as there had been a personal service of the summons. In § 2918 it is provided that where the summons has not been personally served, or where the defendant has not appeared and the property has been attached by virtue of a warrant which has not been vacated, the justice must proceed to hear and determine the action. In such cases the execution issued and the judgment so rendered “ must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other propeity.” We think the error committed by the justice in refusing to vacate , the attachment ought not under the circumstances to vitiate the judgment rendered upon the merits. We are, therefore, of the opinion that the county court being called upon to render a judgment on appeal without regard to technical errors or defects which do not affect the merits, should have pronounced a judgment declaring the attachment invalid. Section 3063 of the Code of Civ. Pro. That section provides that the county court “ may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact.” We are, therefore, of the opinion that the judgment of the county court should be modified so as to adjudge that the attachment issued by the justice be vacated, and that the judgment of the justice court on the merits should be affirmed.

Judgment of the county court modified so as to declare that the attachment issued by the justice is vacated, and as modified, affirmed, without costs to either party of the appeal in this court.

Martin and Merwin, JJ., concur.


author: Hardin, P. J. Martin, J.

text:
    Gates Thalheimer, App’lt, v. Feliz C. Klapetsky et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Witness—Impeachment.
    A party who calls his opponent as a witness thereby vouches for his credibility, and cannot thereafter impeach him.

      2. Assignment fob cbeditobs—Judgments by confession.
    An assignment for the benefit of creditors is not invalidated by judgments previously confessed by the assignors, where such confessions were not made or obtained in contemplation of or as a part of a scheme resulting in the assignment to evade the statute, and the assignment was made in good faith

      Appeal from a judgment entered in Onondaga county upon a decision made after a trial at special term in that county, dismissing the plaintiff’s complaint upon the merits. Plaintiff is a judgment creditor, with an execution returned unsatisfied, of Feliz C. Klapetsky and Bernard Klapetsky, who were copartners in business in Syracuse from September 26, 1885, down to the 19th of August, 1889, when they made a general assignment to the defendant Ohryst. On the 17th of August, 1889, the judgment debtors confessed two several judgments, one to John Klapetsky, and the other to Joseph J. Klapetsky. It is found by the trial judge that when the judgments were obtained on August 17, 1889, “ there was no mention or suggestion of a general assignment for the benefit of creditors, and that said Feliz C. and Bernard Klapetslcy, or either of them, did not at that time contemplate the making of a general assignment, andxthat said judgments were not confessed by said judgment debtors nor obtained by said judgment creditors with any intent on their'part, or the part of either of them, to' evade the statute, of 1887; in- regard to preferences; but that the object .and intent of obtáiniñg said judgments, and each of them, was to secure and pay an; honest indebtedness of said judgment debtors." .That the 'attorney fól the parties obtaining said judgments was one Charles H. Sedgwick, of Syracuse, FT. Y., and that the first suggestion of a gen,eral''assignment made by or to said judgment 'debtors was on August 19, the day of the execution, of the assignment,, 'and', was by advice of Mr. Baldwin, who had that day been retained by, said judgment debtors."
    The trial court also further found: i‘ That the assignment for the benefit of creditors above referred' to was made in good faith, and for an honest purpose, and without any intent on the part of the said assignors or assignee to hinder, cheat, delay or defraud the plaintiff or any other creditor.”
    The trial judge also further found: “ That the plaintiff in this action, by his proofs upon the trial, failed to establish any cause of action against the defendants, or either of them, and that the defendants are entitled to a dismissal of the plaintiff’s complaint, with costs.”

      Hogan & Stern, for app’lt; Baldwin & Kennedy, for resp’ts.
   Hardin, P. J.

Principally upon the evidence of one of the assignors called as a witness by the plaintiff (as well as his testimony given in supplementary proceedings), the plaintiff relied at the trial to sustain the allegations of the complaint which in effect charge that the confessions of judgment made on the 17th of August, 1889, were part of a scheme on the part of the assignors to give preferences in violation of chapter 503 of the Laws of 1887. Inasmuch as the plaintiff called Feliz Klapetzky as a witness, he thereby vouched to the court that he was worthy of credence, and the plaintiff was not at liberty to impeach the witness. In Hunt v. Fish, 4 Barb., 324, it was held that “ a party cannot be allowed to insist that his own witness is not to be believed.” In speaking of such a witness, Gridley, J., says, page 331, “The witness was doubtless strongly in the interest of the plaintiff, and had he been called by the plaintiff, his testimony would have been subject to much just criticism. The defendants have, however, made him their own witness, and must take his testimony as he has given it. Had the defendants not called this witness, they might have argued that the referee should have disregarded-his testimony, if it had been inconsistent or improbable. But they cannot now do this. He has sworn that Mr. Hunt was a Iona fide holder, and the defendants cannot he heard to insist that he is not to be believed. They had the right, if surprised by his testimony, to show by other witnesses that the facts were otherwise; but they could not impeach their own witness, either directly or indirectly.”

After reading the testimony found in the appeal book, and carefully considering the same in the light of the ingenious and extensive criticisms made thereon by the learned counsel for the appellants, we are not inclined to disturb the findings of fact made by the trial judge based, upon the evidence taken before him. In Spelman v. Freedman, 54 Hun, 414; 27 N. Y. State Rep., 392, in considering the effect of the general assignment act, it was said by Brady, J.: “It was evidently the intention of the legislature that if a general assignment for the benefit of creditors was contemplated, it should embrace the disposition of all the debtor’s property at the time of the formation of the determination to make the assignment, and that it should not, in its broad and general effects, be anticipated by a partial and preferential distribution of his estate. The right to the preference, in other words, must be exercised in the assignment, and not otherwise.”

The same court in deciding Stein v. Levy, 55 Hun, 381; 29 N. Y. State Rep., 87, seems to have been divided as to the effect of that decision. A majority of the court, however, seems' to be of the opinion that the assignment act “ had no application to the case of a judgment and the execution levied thereunder, and related only to cases of general assignment. That the provisions of said act only applied to the confessions of judgment where they constituted a part and parcel of a scheme resulting in a general assignment, whereby all the debtor’s property was devoted to the payment of his debts.” See also Berger v. Varrelmann, 34 N. Y. State Rep., 911.

In Wilcox v. Payne, 19 N. Y. State Rep., 893, it was held, that “Judgments confessed immediately prior to a general assignment, although obnoxious to the statute, are not sufficient to render an assignment void.” However, as there is no finding of fact in this case that the confessions of judgment “ constituted a part and parcel of a scheme resulting in a general assignment whereby all the debtor’s property was devoted to the payment of his -debts,” we are of the opinion that we need not consider-and determine what acts, transfers and liens created, or judgments given by an assignor prior in point of time to the execution of a general assignment, will be declared void, or will render an assignment subsequently made invalid.

(2.) We have looked at the several rulings made upon the trial to which exceptions were taken and we are of the opinion that they present no such error as to warrant us in disturbing the findings of fact made.

Judgment affirmed, with costs.

Martin, J.

As the court, upon sufficient evidence, has found that the judgments in question were not confessed or obtained in contemplation of making a general assignment, nor with any intent to evade the statute of 1887, and that the assignment was made in good faith, I am of the opinion that the confessions of judgment did not render the assignment void. As there were no other errors that would justify a reversal I think the judgment should be affirmed.

Merwtn, J., concurs.


author: Barrett, J.

text:
    Elizur V. Foote, App’lt, v. The Manhattan R. Co. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Easements.
    Easements of light, air and access in the street are appurtenant to the abutting land and pass by a deed thereof.
    2. Same—Reservation op right to sue por invasion op.
    A grantor cannot reserve to himself the right to restrain an invasion of such easements after he has ceased to own the property. The right to enjoin a continuous deprivation of such incidents can only be enforced by the owner of the fee.
    3. Same.
    A cotemporaneous agreement excepting from the grant and reserving to the grantor the right to sue for all the damages accrued or to accrue by reason of the erection of an elevated railroad in front of the premises conveyed does not constitute a reservation of the easements, but is a reservation simply of the damages sustained by the grantor or to accrue while the grantee is the owner, and such reservations are a mere personal contract binding only on the immediate grantee.
    4. Same.
    A grantee is not put upon inquiry as to an unrecorded document limiting the estate granted in a recorded deed.
    Appeal from a judgment in favor of the defendants, rendered at special term, dismissing the plaintiff’s complaint with costs. , “

      L. C. Dessar, for app’lt; E. G. James, for resp’ts.
   Barrett, J.

This is an action to restrain the defendants from operating their elevated railroad in front of the plaintiff’s jjremises, Eo. 101 West Fifty-third street, in this city, because of a continuous invasion of the plaintiff’s easements in that street The complaint was dismissed upon the ground that the plaintiff had no title to such of these easements as are occupied by the defendants for the purpose of their railroad. The plaintiff purchased the property in June, 1885, from James B. Grillie and Alexander W alker, receiving a full covenant warranty deed. In this deed the premises were properly described, and such description is followed by the usual phrase: “ Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining.” This deed unquestionably carried with it the easements in question. Mr. Hilliai’d in his work on Beal Property, 3d ed., vol. 2, p. 356, says :

“ An easement appurtenant to land passes with the land, though, the deed neither mentions the easement nor privileges and appurtenances generally, unless it be expressly reserved by the deed or by another made at the same time.”

And in Huttemeier v. Albro, 18 N. Y., 51, Strong, J., observed: “ It is a general rule that, upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it"

The easements in the case at bar were appurtenant and append-ant to the estate conveyed. Therefore they ran with the land and passed by the deed of conveyance. Hills v. Miller, 3 Paige, 254; Manderbach v. Bethany Orphans' Home, 1 Cent. Rep., Pa., 402; Kuecken v. Voltz, 110 Ill., 264.

The defendants claim to have purchased so much of these easements as are occupied by them for the purposes of their railroad. The purchase, however, was from a former owner of the land (Mr. Lathrop), and was made long after the plaintiff acquired title. Mr. Lathrop conveyed the premises in question to the plaintiff's grantors (Messrs. Gillie and Walker), by a full covenant warranty-deed, containing the same description and the same phrase respecting appurtenances which we find in the plaintiff’s deed., It seems, however, that Mr. Lathrop, by an independent agreement with Messrs. Gillie and Walker, reserved certain rights, claims and demands against these defendants, and it was because of this reservation that he claimed the right to sell these easements to them even after Messrs. Gillie and Walker had conveyed to the plaintiff. The reservation signed and acknowledged by Gillie and Walker was in these words:

“ The party of the second part having agreed to convey to the party of the first part the premises on the southerly side of West Fifty-third street, in the city of New York, twenty-five feet in width by one hundred feet in depth, one hundred feet easterly of Sixth avenue. Now it is mutually agreed between the parties that all right and claim and demand heretofore accrued or arisen, or which may hereafter arise or accrue, to either of the parties to°this agreement, against any and every corporations and corporation., person or persons, for or by reason of the erection and building and maintaining of the elevated railroad, as at present constructed in Fifty-third street, in front of the premises above described, on West Fifty-third street, and the running and using of the same, shall belong to, and are hereby retained by and reserved and granted to William J. Lathrop, Jr., and his legal representatives and assigns, and are hereby excluded and excepted from any and every grant and conveyance of said premises, or any part thereof, with full liberty and power and authority to said Lathrop to sue for, collect, compromise, compound, and receive to his own use, and release and discharge any and every such claim and demand now existing and accrued, or hereafter to arise and accrue, against any corporation or corporations, person or persons, for such elevated railroad, and the using and running of the same."

This was not a reservation of the easement, or of any part of it. It was simply a reservation of Mr. Lathrop’s rights, claims and demands against these corporations for the damages which he had sustained by reason of their continuous trespasses while lie was the owner of the property; a reservation also of the rights, claims and demands which might thereafter accrue to Messrs. Gillie and Walker for such damages as they should sustain by reason of like trespasses during their ownership. And these reservations were a mere personal contract, binding only on Gillie and Walker.

The easements in question being appendant to the land and incidents to its use, Mr. Lathrop could not reserve to himself the right to restrain their invasion after he had ceased to own the property. The right to enjoin the continuous deprivation of such incidents can only be possessed and enforced by' the owner of the fee. He alone can be interested in maintaining free access to his premises, and in defending the incidental enjoyment of light and air.

But even if these easements could be, and were reserved, the plaintiff purchased from Gillie and Walker without notice of such reservation. The instrument under which such reservation is claimed was not recorded, and the plaintiff was certainly not put upon inquiry as to an unrecorded document limiting the estate granted in a recorded deed.

The only inquiry put upon the plaintiff was as to the rights of the defendants. If they had purchased the easements from some one authorized to sell them before the plaintiff acquired his title, he would have taken subject to the rights thus secured. Mitchell v. Metropolitan Elevated Railway Company, 56 Hun, 543; 31 N. Y. State Rep., 625. But it would be a strange doctrine that would require a purchaser to look up former owners of land to see whether they have privately reserved easements which are fully covered by their recorded deeds.

The plaintiff made out a proper case for the usual relief in this class of actions, and the judgment should, therefore, be ieversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Bartlett, J., concur.


author: Bartlett, J.

text:
    William H. Rutty, Resp’t, v. The Consolidated Fruit Jar Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Sale—Statute of frauds.
    Although the correspondence by which the parties enter into an agreement for the sale of goods leaves some of the particulars in doubt, acts of the parties which show that it was contemplated that the goods should be manufactured by the vendor take the agreement out of the statute of frauds.
    .3. Same—Abandonment of contract.
    Plaintiff subsequently gave orders for other goods and the machines for making the same, but frequently communicated his wish that the first agreement should be fulfilled. Held, that no abandonment of the first contract was shown.

      Appeal from judgment entered on verdict and from order denying defendant’s motion for a new trial.

      Levi A. Fuller, for app’lt; JolxnF. Fkistis, for resp’t.
   Bartlett, J.

We think this case was properly disposed of at the circuit. The action was brought to recover damages for the alleged breach of a contract whereby the defendant undertook to furnish to the plaintiff 10.000 gross of glove clasps at twenty-nine cents a gross, tobe delivered at the rate of 500 gross a week from the 1st day of January, 1884. The proof clearly established that the parties entered into such an agreement by correspondence ; and although the letters might leave some of the particulars in doubt, these are made clear by the practical construction subsequently given to the contract by the acts of the plaintiff and the defendant. These acts leave no doubt that the parties contemplated that the goods should be manufactured by the vendor, and take the agreement out of the operation of the statute of frauds. Millar v. Fiizgibbons, 9 Daly, 505; Joy v. Schloss, 12 id., 533. They also show that the place of delivery was intended to be New York. The defendant insisted at the circuit, and argues here, that the correspondence which had been mentioned did not form a completed contract, for the reason that in accepting the plaintiff’s written offer he added the words, “ Terms cash, as stated in our interview.” The learned trial judge held, however, and we think correctly, that the subsequent letters of the plaintiff which" were put in evidence proved an acceptance of this modification, if it was a modification.

The defendant delivered to the plaintiff only 677 gross of the kind of glove clasps mentioned in the contract. The plaintiff ordered another sort of clasps and also machines for making clasps from the defendant, and it is clear from the conduct of the parties that the contract upon which this suit is based was modified so far as the time for the delivery of the goods was concerned; but the proof does not sustain the defendant’s position that the plaintiff abandoned the agreement and relinquished his rights thereunder by the orders which he gave for the manufacture of other articles than those embraced in the contract. On the contrary, the evidence of his desire that the Consolidated Fruit Company should fulfill the agreement and of the frequent communication of that wish to the secretary of the company, is clear, full and convincing.

In April, 1885, the defendant refused to furnish any more clasps to the plaintiff. The trial judge instructed the jury that a valid contract to manufacture and sell ten thousand gross of glove clasps existed, and had been broken by the defendant, and that the plaintiff was entitled to recover just what he lost by reason of the date specified. No exception was taken to the rule as to the measure of damages which was laid down in the charge; and hence the amount of the verdict is not assailed in the argument of the learned counsel for the appellant, who relies upon the proposition that the proof failed to establish the existence of a contract which could be the basis of any verdict at all against his client. In this view we are unable to concur. We have considered all the points made in the brief, and find no sufficient ground for disturbing the judgment, which must therefore be affirmed, with costs.

Yak Brukt, P. J., and Barrett, J., concur.


author: Vak Brunt, P. J.

text:
    Fanny Bean, Resp’t, v. George W. Carleton et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Contract—Damases eor breach—Evidence.
    Plaintiff entered into a contract with defendants for the publication of her hook, which provided that she should pay them $900, which was to be repaid when the sales of the book reached 2.000, and they were to pay her a royalty on all sold over that amount. In an action for breach of said contract, Held, that evidence t) show that it was agreed that 2,000 copies should be published was properly received; and that defendants having failed to do so, and plaintiff not having benefited by the contract as far as performed, she was entitled to recover the sum paid by her.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury.
    Action to recover $2,500 damages for the violation of a contract to publish a book written by plaintiff, called “ Dr. Mortimer’s Patient,” by reason whereof she alleges that she has lost profits which she would otherwise have received, and for injury to her reputation as an author. ^The contract in question provided that plaintiff should advance to defendants the sum of $900, the receipt of which was acknowledged, and that, “ Carleton & Co. shall publish said book and repay to said Bean the said $900 as soon as the sale of the said book reaches 2,000 copies, but not pay any portion back until 2,000 are sold,” and, further, that they should pay her, as copjn’ight, twenty cents on all sold over that amount.
    On the trial evidence was admitted to show that it was at the same time orally agreed that defendants should print, bind and publish 2,000 copies. Only 1,000 copies were actually published by defendants.

      I. D. Warren, for app’lts; A. B. Oruikshank, for resp’t.
   Vak Brunt, P. J.

This is the third time that this case has "been before the general term. Upon the previous appeals it was -determined that the plaintiff had a right to offer parol evidence showing that the written contract mentioned in the pleadings did not comprise the whole contract entered into between the parties, but that additional agreements had been made. Although much may be said against the conclusion arrived at, yet upon this appeal we think that it should be followed, and therefore that branch of the case will not be again discussed.

The only other questions raised by the defendants are as to the r-ule of damages, and an exception to the.-admission of" certain evidence.

If the contract was as claimed by the plaintiff, and there was a breach on the part of the defendant, then clearly the plaintiff would have a right to recover back that which she had paid thereunder, because there is no evidence tending to show that the plaintiff had benefited by -the contract so far as it was performed. The defendants failing to do that for which the money was ad: vanced, necessarily gave the plaintiff the right to recover back that which she had paid.

As to the exceptions to the admission of evidence, we have examined them and find none of them which calls for a reversal of the judgment.

Upon the whole case, therefore, we think that the judgment should be affirmed.

Bartlett, J., concurs.


author: Van Brunt, P. J.

text:
    Fanny Bean, App’lt, v. George W. Carleton et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Contact—Damages.
    In an action to recover for breach of a contract for publication of a book by reason of a failure to publish as many copies as agreed. Meld, that plaintiff was fully indemnified by a verdict for the amount advanced by her on the contract, and that she could not recover for loss of the manuscript, as the evidence as to the damage caused to it was too speculative.
    Appeal 'by plaintiff from judgment entered in her favor upon verdict of a jury.

      A. B. Oruikshank, for app’lt; I. D. Warren, for resp’ts. ,
   Van Brunt, P. J.

The plaintiff claims by her appeal that the verdict was too small, and that she was entitled to damages for the loss of her manuscript. .

We think, however, where the-plaintiff was allowed to recover back the total amount paid under the contract, the evidence as to the damage to the manuscript resulting from the failure to print 2,000 copies, 1,000 only having been issued, was too speculative to justify any recovery thereunder, and, therefore, the learned judge ruled correctly in limiting the amount of damages to the moneys paid by the plaintiff under the contract in question.

We think, therefore, that the judgment so far as it is appealed from by the plaintiff should be affirmed upon her appeal.

Bartlett, J., concurs.


text:
    Frederick A. Conkling et al., Trustees, Resp’ts, v. The Manhattan R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Bailboads—Elevated—Bindings—Pleading.
    The complaint in this action alleged that "grease, oil and water drop from passing trains and fall on the street in front of plaintiffs’ premises.” The answer contained a denial that grease, oil, water, cinders or other objects fall from passing trains to any considerable extent or to such an extent as to result in money damages capable of ascertainment. Meld, that this was not a denial of the averment of the complaint, and that a finding in the words of the averment is therefore proper.
    S. Same. ,
    It is not error for the court, in such a case, to refuse to find_ as a fact that the existence of a neighboring station rendered the premises more accessible to other parts of the city and that the continuous trespass thus added to the value of the premises. The court is not bound to find evidence or disclose the processes of thought or special considerations which led him to find the salient facts.
    3. Same—Damages.
    Damages to the inheritance may he awarded for the continuous trespasses committed during the term of a lease.
    Appeal from a judgment rendered at special term in favor of the plaintiffs for past damages sustained by the construction and operation of the elevated railroad, and for an injunction nisi to restrain its further maintenance and operation.

      J. C. Thomson, for app’lts; H. 0. Atwater, for resp’ts.
   Barrett, J.

The appellants have submitted an elaborate brief in this case and have made nine points, upon each of which they claim a new trial. We have gone over this brief carefully, but we find no merit in any of the positions taken.

There can be no doubt that the witnesses produced by the plaintiffs were competent experts, and that the decision of the learned judge at special term admitting their testimony should be sustained Bedell v. Long Island Railroad Co., 44 N. Y., 370; Slocovich v. Orient Mutual Ins. Co., 108 N. Y., 62; 12 N. Y. State Rep., 806. They were far better qualified than the experts whose testimony was admitted in the Bedell case. The rule was there said to be that the witness must have some acquaintance with the value of property sufficient to enable him to form some estimate of its value, and then it is for the jury to determine how much weight to attach to such estimate. In Slocovich v. Orient Mutual Insurance Company, it was held that the decision of the trial judge in such a matter should not be held to present an error of law, and on that account be reversed, unless it is against the evidence or wholly or mainly without support in the facts which appear.

In the light of these authorities the evidence of qualification was more than sufficient, and the point made by the appellants is untenable.

The testimony given by these experts was within the limits outlined in Drucker v. Manhattan Railroad Company, 106 N. Y., 163; 8 N. Y. State Rep., 599, and the special objections thereto, taken in the third and fourth points, are unsubstantial.

Error is claimed in the finding that grease, oil and water drop . from passing trains and fall on the street in front of plaintiffs’ premises. This fact was alleged in the complaint and was not denied in the answer. It was therefore properly found as a fact. There is, it is true, in the answer what is styled a denial, but it is a denial of something which is not alleged, namely: that grease, oil, water, cinders or other-objects fall from passing trains to any considerable extent, or to such an extent as to result in money damages capable of ascertainment.

The absence of any denial of the averment that “ grease, oil, water, cinders and other objects fall from passing trains,” is enough to sustain a finding in the language of the averment The court did not find that such grease, oil and water fell to any considerable extent, or to such an extent as to result in money damages capable of ascertainment.

Plainly the defendants’ intention was to admit the averment, but to qualify the fact admitted by an allegation that it was not serious.

There was no error in refusing to find, as a fact, that the existence of a fieighboring station rendered the premises more accessible to other parts of New York city than they would otherwise be, and that the continuous trespass thus added to the value of the premises. Upon the defendants’ theory, this was but an item of evidence bearing upon the issuable facts which were to be ascertained, namely, the value of the property appropriated by the defendants, and the damages sustained by the past trespasses involved in such appropriation. The trial judge was not bound to find evidence, nor would it have been, proper to do so. Nor was he bound to disclose the processes of thought or the special considerations which led him to find the salient facts.

It appears, however, that the value and damages in this case were expressly found to be “ over and above any benefits derived from the construction and operation of said elevated railroad.”

It is contended that damages were awarded for acts done more than six years prior to the commencement of the action, and that this was error, the statute of limitations having been pleaded. This contention is directly opposed to the findings. The pdamages are there expressly limited to what were sustained during the six years prior to the commencement of the action. It is said, however, that as the six years commenced' on the 15th day of May, 1882, and as there was at that date an outstanding lease of the premises which was signed a few days before, the plaintiff can recover nothing for the diminution of rent running through the term.

This point is far-fetched and unsubstantial. The plaintiffs had no 'cause of action against the defendants on the day when the lease was signed for the difference between the future rent reserved and what their premises would have brought them but for the defendants’ acts. The causes of action were for continuous trespasses committed daily during the term of the lease, and the damages to the inheritance were awarded for these trespasses, and for these only. The rent reserved by the lease and paid thoughout the term was but a single incident or consideration in estimating these damages. That the action will lie for damages to the inheritance notwithstanding such possession of a tenant was held, and we think conclusively demonstrated, by Ingraham, J., in Mortimer v. The Manhattan Railway Co., 29 N. Y. State Rep., 262. Oth er-wise the defendants would escape altogether, for the tenant could recover nothing, inasmuch as he rented the premises with the invaded easements just as they stood. The damages, as were there pointed out, would be the same (namely, the difference in rental value free from the trespass and subject to it) whether the premises were rented or not, and even if they were occupied by the owner.

The eighth and ninth points, in which it is claimed that the sums awarded for damages and which the appellants were required to pay as- the price of the easements were excessive, call for no special consideration. We have examined the evidence and we think the sums awarded were reasonable.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.


text:
    Elizabeth Trope, Resp’t, v. The Saratoga Association for Improvement of Breed of Horses, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Venue—Change fob convenience of witnesses.
    In an action for injuries caused by a fall on a stairway of defendants’ grand stand, where the complaint alleged that the fall was caused by the abseuce of a railing rendered necessary by the fact of the stairway being covered and lengthy, the defendant has the right to establish the method of construction of the stairway, the degree of obscuration of light, the fact that it had been constantly used without .accident and that it was not in possession of defendant at the time of the accident, by more than one witness, and where such witnesses are numerous the place of trial may properly be changed to the county where the accident occurred, although plaintiff’s witnesses may be substantially equal in number.
    Appeal from order denying motion to change place of trial.

      H. Russell, for app’lt; Joseph A. Shoudy, for resp’t
   Van Brunt, P. J.

This action was brought in November, 1889, to recover damages for personal injuries claimed to have been sustained on the 12th of August, 1886, by falling down the stairs leading to the grand stand on the Saratoga race track.

• It is alleged in the complaint that the property was in the possession of the defendant at the time of the accident, and that the stairs were carelessly and negligently constructed, in that being covered and lengthy the light was to a great degree obscured so as tó make it difficult to see clearly on entering, and rendering a railing or other means of support indispensable to the safety of those descending the same, and because of the want of such railing the plaintiff suffered her injuries. The defendant claimed that it would be necessary for it to produce a large number of witnesses to prove that the stairs were in good repair and properly constructed. The plaintiff’s answer to the application seems to have been that these witnesses were not necessary because the want of a railing is the only defect alleged; and it is upon this ground that the learned court seems to have denied the application.

This view of the allegations of the complaint seems to us to be erroneous. Not only the methods of construction of these stairs must be the subject of investigation, but the results arising from such construction, because the allegation of the complaint is that such railing was rendered necessary because the stairways were covered and so lengthy that they to a great degree obscured the light.

How great this obscuration was the defendant had the right to establish by the evidence of more than one witness, and could not be restricted by the rule of the court in that regard to one witness. Neither could it be restricted to the evidence of one witness in regard to the method of construction. It had a right to establish by such number of witnesses as would carry weight to the jury what the particular facts relating to such construction were.

There was another class of proof which it might have the right to enter into, and that was, that for a period of ten years before this accident thousands of people had used these stairs without falling, and such an accident could not reasonably have been anticipated. A fact of this description could not be established to the satisfaction of a jury by a single witness, and it might have the right to show this fact. It is no answer to such a claim that such evidence is entirely immaterial, unless it was patent, which it is n,ot.

The defendant desired to establish, also, the fact that it was not in possession of the premises at the time of the accident, and therefore not responsible therefor. All these branches of defense were such as the defendant had a right to claim to maize use of, and they required the testimony of various and 'divers witnesses.

The affidavits upon the part of the plaintiff show that certain witnesses were to be examined upon her behalf. But it is apparent that the testimony which could be given by some of these witnesses was of the most trivial character, ahd that there is the same attempt upon the part of the plaintiff to amplify the number of witnesses which the defendant has also indulged in. But the claims made upon the part of the defendant as to the number and necessity of the witnesses seem to be much better founded than those of the plaintiff.

The accident occurred in Saratoga county, which appears to be the defendant’s place of residence, and applying the rule that where the number of necessary and material witnesses is substantially equal, the place where the transaction occurred ought generally to control, we think that the order should be reversed, with ten dollars costs and disbursements, and the place of trial changed to .Saratoga county.

Bartlett, J., concurs.


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

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    1. Criminal law—Remarks op prosecuting attorney.
    The prosecuting attorney has no right to advert in any manner upon the question whether defendant would become a witness either in his summing up or in his opening.
    2. Larceny—Evidence—Supplementary proceedings.
    In a prosecution for larceny it is error to admit in evidence the examination of the defendant in supplementary proceedings taken upon a judgment recovered for the money which is the subject of the indictment.
    3. Same.
    The indictment charged defendant with larceny in drawing from a bank certain moneys claimed to belong to an estate. It appeared that testator placed the money in bank in the names of himself and defendant, and it was claimed that defendant had the bank books from that time. He offered to show by the testimony of his wife declarations of testator that he had made a gift of the money to defendant. This testimony was excluded. Held, error ; that the evidence was pertinent upon the question of the intent with which defendant possessed himself of the money.

      Appeal from judgment of the court of general sessions convicting the defendant of grand larceny in the first degree.

      J. R. Henzleman, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

The manner in which the assistant district ■attorney conducted the prosecution of this case was certainly of a •character which'should call for the censure of the court, and which requires a reversal of the conviction. In his opening of the case he states to the jury that he was curious to know whether the -defendant would go upon the stand since he had found Lee and have anything to say about how much money he spent with Lee; that the defendant might listen to prudent counsel and not go on the stand.

To these remarks the counsel for the prisoner objected and excepted ; and called the attention of the court .to them, but all that was done was, the court ordered his objection and exception to be noted.

It is quite well settled that the prosecution have no right to predicate anything upon the refusal of the defendant to go upon the stand. In the case of Ruloff v People, 45 N. Y., 222, the court in adverting to this subject say, “ neither the prosecuting officer nor the judge has the right to allude to the fact that the prisoner has not availed himself of this statute; and it would be the duty of the court peremptorily to interrupt a prosecuting counsel who should so far forget himself and the duties of his ■office as to attempt to make use of the fact in any way to the prejudice of a prisoner on trial. An allusion by the judge to the fact unexplained cannot but be prejudicial to a prisoner on trial ; •and a provision intended for his benefit would prove a trap and snare. It is an intimation to the jury of the effect upon his mind of the omission of the accused to explain by his own oath suspicious and doubtful facts and circumstances as affecting the ■question of guilt or innocence.”

The remarks made by the assistant district attorney to cfhe jury were a challenge to the defendant which compelled him to go upon the stand, or the fact of his refusal would necessarily be considered by the jury to his prejudice. This the attorney had no right to do. He had no right to advert in any manner or way upon the question as to whether the defendant would become a witness. And if he had no right to suggest the fact in his summing up, he had no right to press it upon the minds of the jury at the opening of the trial. It does not appear that there was any attempt upon the part of the learned judge presiding to repair the damage done by cautioning the jury in this regard. All that the defendant received was the notation upon the record of an objection and exception.

It seems to us that the action of the assistant district attorney was a clear violation of law which was prejudicial to the defendant, putting him in a false position before the jury and compelling him to testify when otherwise he might not have done so. The gravity of this error is enhanced by the course of the testimony, because we find that this defendant had. been examined in supplementary proceedings upon a judgment obtained against him to recover the very money which is the subject of this indictment. And evidence as to w'hat he testified to upon this examination was offered. It is true it was not objected to, but it was clearly improper and incompetent, as such evidence could not by the provisions of § 2460 of the Code of Civil Procedure be used against, him in a criminal action or a criminal proceeding. If it were not for the exemption contained in this section a party might shield himself always in supplementary examinations where there was-any question of fraud by claiming his privilege, and it was to avoid the failure of justice by reason of this claim that it was enacted that evidence given under these circumstances should not be used against the witness.

There is, however, another question raised by an exception where evidence seems to have been improperly excluded. One of the vital questions in the case was as to the relations of William Doyle and the defendant in respect to certain moneys which belonged to William Doyle and which he had deposited in certain savings banks. It was in evidence that William Doyle had changed these deposits from his own individual name to that of himself and the defendant and.in respect to one deposit he opened, a new account in his name in trust for the defendant.

It was claimed by the defendant that the bank books were delivered to him and he had charge of them from that time until he drew out the money after the death of William. The wife of the defendant was being examined upon the part of the defendant and she stated that she remembered a conversation between William Doyle and herself in the last days of July or first of August, 1885, in reference to her husband and some bank books, and that her husband was not present when they had that conversation. She was then asked this question:, “State the conversation which you then had with William.” This question being objected to, the counsel for the defendant stated that he intended to prove by the witness declarations of William Doyle, to the effect that he had in his lifetime made a gift to the defendant of the money which the defendant was charged with misappropriating. The objection was sustained and the evidence excluded. This seems to have been material testimony upon the question which has already been suggested. Apart from the legal rights, of the parties, it was necessary to establish upon the part of the-prosecution a felonious intent upon the part of James Doyle in the drawing and using of this money. If William Doyle had attempted to make a gift of this money to James Doyle, and James Doyle had innocently believed that such gift had been made and had acted upon that belief in the drawing of the money, then the-felonious intent necessary to make a crime would be absent, even though as against the heirs of William Doyle the gift may have been ineffectual. Whether such a gift could be effectual or not it is not necessary to determine. The evidence, certainly, was pertinent upon the question of the intent with which James Doyle. possessed himself of this money, and he should have had the benefit thereof.

Upon the whole case, therefore, we think that the conviction should be reversed and a new trial ordered.

Barrett, J., concurs.

Bartlett, J.—I concur upon the first point discussed in the opinion.


author: Bartlett, J. Barrett, J.

text:
    John H. Cheever, Pl’ff, v. Avery T. Brown, Assignor for Creditors of William H. Guion et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Assignment for creditors—Proof of claim of firm against individual ASSIGNOR.
    In the case of an individual assignment of a member of a firm, proof of a claim against him by the firm consisting merely of an estimate made by his partner and acquiesced in by himself, without proof that the value placed on the firm profits in making such estimate was the true value, is insufficient to authorize a finding in favor of the claim.
    Appeal from order confirming referee’s report and from decree ■directing distribution of assigned estate.

      Clark Bell, for William H. Guión, as receiver, app’lt; William Allen Buller, for William H. Webb, resp’t; William W. Jenlcs, for plaintiff, resp’t.
   Bartlett, J.

This was a suit against an assignee for an accounting. The referee who took proof of the claims of creditors rejected the claim of William H. Guión, as receiver of the firm of Williams & Guión, on the ground that it had not been substantiated by the proof offered in support thereof; and the sole ■question presented for determination oh this appeal is whether the evidence before the referee demanded a different conclusion.

The claim of the appellant was that William H. Guión individually was indebted to the firm of Williams & Guión in the sum of $106,937.82. This amount was arrived at, according to the testimony, as the result of discussions between William H. Guión and the late Stephen B. Guión, deceased, representing the firm. We do not think the transactions between these parties were such as to make an account stated. Hence, the claim in behalf of the firm could not be allowed in this proceeding, as against the assigned estate of William H. Guión individually, on the .ground that an account had been stated between him and the co-partnership, which fixed the amount that he owed. It was essential, therefore, to establish the amount of William H. Guion’s indebtedness to the firm of Williams & Guión by proof which •should be competent as against his other creditors having claims against his estaté in the present suit. That amount could only be ascertained by looking into the'relations between Mr. Guión and the copartnership, and finding out what the firm was entitled to charge against him, and what was the value of his interest in the firm profits or assets. The books of the firm show charges against -him on general account, and on loan account, aggregating a large amount. From this must be deducted the appellant’s interest in the profits of Williams & Gruion. His very claim, put before in the-referee, speaks of these profits as unascertained, but as estimated as nearly as possible on January 18, 1884, at $464,000. The-evidence in this matter shows, not what the profits actually did amount to, but what Stephen B. Gruion said they amounted to. The manner in which they were fixed is stated by Mr. William H. Gruion himself in his testimony as follows: “ There was no-estimate of the profits of the concern composed of myself and Stephen B. Gruion until after my failure. It was then made up-by my brother, and stated to me by him and by our bookkeeper, who made it up in New York. I got it from the bookkeeper, Mr. Thompson. I don’t know anything further than his statement. I don’t know anything about it.”

How it seems to us quite clear that the other creditors of Mr. William H. Gruion’s individual estate, in the present proceeding, are not bound by any mere estimate of his indebtedness to the firm of Williams & Gruion, made in this way by his copartner and acquiesced in by himself; and, indeed, that in the absence of any evidence whatever to show that the value placed upon the firm profits, in making that estimate, was the true value as matter of fact, no sufficient foundation was laid for a finding by the referee in favor of the appellant’s claim, even though no opposing testimony was offered.

We think the order appealed from, together with the decree,, should be affirmed, with costs.

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

Barrett, J.

I concur. The question was not whether upon a liquidation of the copartnership affairs Mr. W. H. Gruion would have been found to be indebted to his copartners, but whether he was actually indebted to his own firm in such a form that the receiver of that firm could recover against him or his assignee.

This question seems to have been ignored, and Mr. W. H. Gruion, as his firm’s receiver, proceeded before the referee as though it were only necessary to show his individual liability for some-specific sum upon a firm accounting. But even upon this theory, proof of the essential facts was lacking. His individual creditors-certainly had a right to strict proof of his indebtedness to his firm.

Their dividend from his individual estate should not be reduced bv mere estimates of the partners in the firm as between themselves nor yet by book-keeper’s statements as to the supposed condition of the firm. I think with Mr. Justice Bartlett that the-referee was right for rejecting this claim.


text:
    Edward F. Brown, Assignee for Creditors, Resp’t, v. Walter P. Butler, Adm’r with the Will Annexed of W. J. Butler, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1890.)

    Counterclaim—May be withdrawn on trial.
    . A defendant has a right to withdraw a counterclaim at any time during the trial. So far as his counterclaim is concerned, he occupies the position of a plaintiff.

      Appeal from judgment entered upon the report of a referee.

      James R. Marvin, for app’lt; Edward F. Brown, for resp’t.
   Bartlett, J.

This action was brought upon three promissory notes aggregating $2,200 made by W. J. Butler, and payable on demand to the order of J. F! Wyckoff. The defense chiefly relied upon on the trial was that the payee agreed to accept the professional services of the maker, as an attorney and counsellor at law, in payment of the notes and that the notes were fully paid by the rendition of such services. ■ The referee found that the alleged agreement was made in regard to the mode of payment, but refused to find that the notes had been paid in the manner thus provided for; The evidence on that question was conflicting, and we are not prepared to say that the conclusion reached by the referee was not correct.

, There would be no occasion to interfere with the judgment, therefore, if it was confined to an adjudication that the plaintiff was entitled to recover from the defendant the amount of the notes with interest and costs. It goes much further, however, and determines adversely to the defendant a certain portion of the counterclaim interposed by his amended answer, which his counsel had withdrawn in the course of the trial. The right thus to withdraw a counterclaim is questioned by the learned counsel for the respondent ; but we cannot see why it does not exist, just as a plaintiff may submit to a non-suit up to the time when a case goes to the jury. So far as his counterclaim is concerned, the defendant 'occupies the position of a plaintiff.

The judgment ought to be modified by striking therefrom the provisions relating to those portions of the counterclaim which were withdrawn during the progress of the reference, and as thus modified it should be affirmed, without costs to either party upon this appeal.

Judgment modified so as to exclude any adjudication on the merits of the counterclaim which was withdrawn, and as thus modified affirmed, without costs. Order to be settled Mr. Justice Bartlett.

Van Brunt, P. J., and Barrett, J., concur.