author: Freedman, J.

text:
    Annette F. Bates, Pl’ff, v. Charles F. Bates, Def’t.

      (New York Superior Court, Special Term,

      Filed February, 1894.)

    1. Marriage—Proof.
    When a meretricious relation between the parties has been established its continuation will be presumed until proof of a change and of a marriage.
    2. Same.
    In such case, marriage will not be presumed from cohabitation and reputation, but proof of a subsequent actual marriage is necessary.
    3. Same.
    A mutual consent, per verla de praesenti, is the prime requisite to a valid marriage.

      4. Same.
    An agreement, per verba de futuro, not only fails to prove actual marriage, but, by its very terms, excludes any such conclusion.
    5. Same.
    A paper in the following words: “This is to certify that Annetta F. McGrath is my true and beloved wife, whom I love,, honor and cherish,” and signed by the defendant, was held not to have been executed, if at all, as evidence of a marriage duly entered into, but as a cover to enable the plaintiff to hide illicit intercourse.
    6. Trial—Findings.
    It is only the necessary, general or ultimate facts, constituting the foundation of the decision, which must be found.
    Action for separation.

      Horwilz & Hirshfield, for plaintiff; Miller, Peckham & Dixon, for defendant.
   Freedman, J.

This action is brought by the plaintiff, claiming to be the wife of the defendant, for a separation and for alimony on the ground of abandonment and non-support. The defendant denies the alleged marriage. Plaintiff’s claim rests upon a so-called common law marriage alleged to have been entered into on the 16th day of July, 1890. The burden is upon the plaintiff to establish her case by a preponderance of evidence.

The case presents a sharp conflict of testimony which is difficult of solution. The testimony of the parties cannot be reconciled, and hence, in order to determine which of them is to be believed, resort must be had to such surrounding circumstances as show, or tend to show, in whole or in part, the truth or untruth of their respective statements. Under the operation of this rule neither is to be believed to the exclusion of the entire testimony of the other, and either may be believed as to such parts which stand corroborated. If necessary, a fact may be found in opposition to the testimony of both, if sustained by other credible testimony or deducible from established facts or circumstances or from the probabilities arising from established facts and circumstances.

How, the defendant testified to the effect that long before the date of said alleged marriage it had been agreed between him and the plaintiff that they should be intimate with each other, and that for that purpose they had met at various times and places, which were described. The plaintiff denied every charge thus made against her, but she stands alone in her denials. Witnesses for whose absence she did not account, and whose testimony in all probability would have been material she did not call. Her denial that she ever knew a place called “The Widow’s,” she had to retract when confronted by her own letter, in which she asked the defendant to meet her there. As to other important particulars, the defendant stands corroborated by the testimony of his coachman. Other and highly corroborative evidence in favor of the defendant is furnished by the entries in the book of Seaman, the keeper of a livery stable, and by the testimony of one of the drivers employed by Seaman, who drove the plaintiff and defendant to a place of bad repute, left them there, and after the lapse of some hours called for them again. This driver is a wholly disinterested witness, and he appears to be entirely trustworthy. The circumstances under which the plaintiff made the acquaintance of the defendant strongly suggest that she was a woman of loose morals, and her whole conduct thereafter was inconsistent with purity of character. Even her correspondence corroborated defendant’s claim, for the passage in one of her letters, “ I thank God I did not reveal our relations to mamma to-night,” unmistakably refers to her illicit intercourse with the defendant.

Upon the whole, the evidence clearly shows that prior to July 16th, 1890, the relation between the parties was a meretricious one.

That fact having been established, the authorities agree that its continuance must be presumed until proof of a change and of a marriage, and that in such a case marriage will not be presumed from cohabitation and reputation, but proof of a subsequent actual marriage is necessary. This may be shown by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and to satisfactorily prove that it was changed into that of actual marriage by mutual consent. Foster v. Hawley, 8 Hun, 68; Gall v. Gall, 114 N. Y. 109 ; 22 St. Rep. 746 ; Williams v. Williams, 18 Am. Law Reg. (N. S.) 629 ; 17 Abb. N. C. note, p. 508; Bishop on Mar. Div. & Sep. sec. 977.

The prime requisite to a valid marriage under our law is the interchange between the parties of a mutual present consent, per verba deprcesenti, to take each other as husband and wife. This consent is of itself fully sufficient, and for it there is no substitute or equivalent. The means of proving the existence of such consent are various, but they should never be confounded with the consent itself, which is always the same. Proof of cohabitation as husband and wife does not constitute marriage. It may, in some cases, be evidence of marriage. It can never be anything more. “ Consensus, non concubilus, facit nuptias ” is the universally received maxim. If the agreement is not one of present consent to accept each other as husband and wife, but is per verba de futuro, looking to a marriage at some future time, it not only fails to prove actual marriage, but, by its very terms, excludes any such ■conclusion.

The plaintiff claims and has testified that an actual marriage by mutual consent took place on the evening of July 16, 1890; that at that time, although no witness was present, she and the defendant contracted a so-called common law marriage by mutually agreeing to become then and there husband and wife; that the main reason why they adopted that form rather than a ceremonial marriage was to prevent information of the fact from coming to the ears of defendant’s father; that from the time of such marriage they kept in each other’s company that evening ; that during the night immediately following they cohabited as man and wife at the house of plaintiff’s mother; and that defendant left said house at about five o’clock the next morning, because, as he said, it was necessary to meet his father at the breakfast table according to his father’s commands.

Under the laws of this state a marriage may be thus contracted, as already stated, but it must be a marriage per verba de proesentí evidencing mutual consent to immediately become husband and wife. If, as such, it is clearly established, it is as valid as any other. But whenever it is challenged it is the duty of the courts-to see to it that the proof concerning it is clear and convincing. For it is somewhat improbable that any two persons who honestly and intelligently contemplate an immediate marriage should not enter into it in some form which renders future controversy concerning the fact of marriage almost impossible. To a virtuous woman nothing is of greater importance. To a man respecting, and intending to respect, the woman whom he proposes to make-his wife, it is of almost equal importance. The legitimacy of his children depends upon it, and the future standing and position in-social life of his wife depend upon it. Moreover, it is quite as, easy to make a marriage, intended for the moment to be kept secret, in such form as will make and leave the fact of such marriage almost beyond any possible controversy, as it is in the case of a public marriage.

Mow, the plaintiff in the case at bar is without a single-witness to the alleged marriage, except that her mother claims to have seen the defendant depart from her house about 5 o’clock the next morning, an occurrence as to which she may be well mistaken, because similar occurrences happened thereafter. .

As to all the material matters relating to this alleged marriage and the alleged cohabitation in connection thereafter, the plaintiff stands contradicted by the positive denials of the defendant; as-, to the principal reason assigned by her for keeping the marriage secret, she stands contradicted by the testimony of defendant’s father; and as to her claim of cohabitation during the night in-question, she stands contradicted by the testimony of defendant’s sister. The latter's testimony, supported by her diary, clearly establishes that that night, owing to mother’s sickness, the defendant remained in his father’s house and held himself ready to be called by his sister, in case his assistance was needed, and that he could not have been at the house of plaintiff’s mother, as testified to by the plaintiff. The character of defendant’s sister appears in a very favorable light; she seems to be a noble woman ; her testimony bears the impress of truth upon its face; and she cannot be mistaken.

The conclusion is therefore unavoidable that the marriage did not take place as alleged by the plaintiff.

What, then, is there left of plaintiff’s case? She does not claim that any marriage took place at any other time or place.. She shows, however, that the defendant, at various times and places, and in the presence of different persons, called her his wife.. The testimony on this branch of the case is too voluminous to be referred to in detail, and such discussions would serve no useful purpose, even if it were practicable. Suffice it to say that upon a close analysis it appears that these were times and occasions when it became necessary to keep up a pretense of respectability or to avoid censure, and that opposed to the claim based upon this testimony is testimony and proof of facts and circumstances from which it clearly and convincingly appears that plaintiff’s conduct and whole mode of life, inclusive of her correspondence, subsequent to the alleged marriage, were inconsistent with her present claim, that there was only such irregular intercourse between the parties thereafter as fancy or passion dictated; that the plaintiff continued to receive from the defendant checks made payable to her as A. F. McGrath, and to endorse such checks by that name, which was her maiden name; and that in June, 1893, in order to obtain some valuable jewelry from the person of one Ferguson, who was brought, severely wounded, in an ambulance to a hospital, she claimed to be the wife of the said Ferguson. Even some of the checks given to her, which were drawn “ to cash,” were voluntarily endorsed by her in her maiden name. Her letter written in 1893 to her “ friend ” Miller, in which she acknowledged prior pecuniary assistance from him and invited him to come and spend a couple, of hours with her at a certain hotel, and promised him a merry time if he would come, is a pretty good sketch of her true character drawn by herself.

So far then the plaintiff has failed to make out a case. It now remains to be seen what effect is to be given to the paper claimed by the plaintiff to be the certificate of her marriage. Assuming for the present its authenticity, it does not purport to be, and it is not, an agreement between the parties evidencing an honest intention on their part to thereby constitute themselves man and wife without any further formality or ceremony. It is in no sense a contract, but only evidence of a contract previously entered into. It says: “ This is to certify that Annetta F. McGrath is my true and beloved wife, whom I love, honor and cherish.”

This appears over the alleged signature of the defendant The plaintiff incurs no obligation therein, and she does not certify that any obligation was incurred by her. Her signature appears, however, attached to it, but not under and following the signature of the defendant, but under and following the date of the certificate, which appears between the two signatures. The paper, therefore, if genuine, is simply evidence of recognition of a status then existing, and the fact that the statement is in writing does not entitle it to any greater legal effect than a verbal statement to the same effect would be entitled to, if clearly shown to have been made.

We, therefore, come back to the question whether there was a sufficient prior marriage contract per verba de prcesenli.

Upon this point the plaintiff, in answer to an inquiry made by her own counsel as to the circumstances under which that paper was written and as to what then and there occurred, testified that she did not consider mere words binding ; that she did not consider that a verbal agreement constituted a marriage, and that she wanted an evidence of it which she could show to her family. Her understanding of that paper, therefore, was that it was no more than an evidence of a verbal agreement, which she admits did not in her opinion constitute a marriage. Where then is the complete marriage contract by mutual consent, whereby the parties finally and irrevocably immediately took each other as husband and wife?

If, therefore, the paper in question was executed by the defendant, a good reason for its execution readily appears, and such reason although unsustained by direct testimony, is in such case supported by the facts and circumstances surrounding the execution and by the probabilities fairly deducible from such facts and circumstances. It has been shown beyond question that prior to July 16th, 1890, plaintiff had been intimate with defendant. She and he, no doubt, desired to continue such intimacy with more freedom, and within the house occupied by her mother. The plaintiff realized that her mother might prove an obstacle to the gratification of her desires at home. To accomplish her purpose and to shield herself against censure she procured the execution of the paper, intending to use it merely as a sham justification of her intercourse, and never at the time intending to rely on it to establish a claim of wifehood. According to her her own testimony she wanted the paper to show to her family after she had permitted the defendant, to remain over night with her in her room. It was thus intended as the first notice to the members of her family, and no satisfactory reason has been given why some members of the family were not called upoá to witness the alleged agreement of marriage at the time it was entered into.

I have thus far discussed the said paper on the assumption of its genuineness. But the defendant denies that he executed it, while the plaintiff contends that she was present and saw the defendant execute it.

Upon a cursory reading of the testimony bearing upon this disputed point the plaintiff seems to stand corroborated, and yet upon close examination and analysis there remains a doubt. The testimony of the members of plaintiff’s family as to admissions alleged to have been made by the defendant is the testimony of witnesses who, notwithstanding the terrible disclosures of this case, have an interest in upholding the honor of the family, and the circumstances surrounding the making of the alleged admissions do not demand that they should receive the construction contended for by the plaintiff, even if they were made. The clamor of these members of plaintiff's family, and the clamor on the part of the plaintiff herself for a ceremonial marriage, in the face of defendant’s persistent refusal, portray a consciousness that no marriage at all had ever been contracted. Besides, admissions are always considered as dangerous evidence, because it is so easy to attribute to mere words spoken a meaning different, from the one entertained by the speaker. The testimony of the bank teller stands impaired by his admission that in some other cases in which he had been equally positive' in his opinion as to the genuineness of a signature the signature had turned out to be a forgery. Nor is the opinion of the expert, based solely upon a comparison of handwritings, entitled to any greater weight, for the books contain a large number of cases in which the most positive opinions of such experts turned out to have been erroneous, The so-called Morey letter, which according to the positive opinion of such an expert was written by the late James A. Garfield prior to his election as President of the United States, serves as a conspicious illustration of what I have stated.

Moreover, in the case at bar the paper now under examination, if written by the defendant at all, bears internal evidence that it was not written and executed under the circumstances, and for the purchase claimed by the plaintiff, for about one inch below the alleged signature of the defendant appears the date, viz: “blew York, July 16, 1890,” and about one inch below that appears the signature of the plaintiff. The latter seems to have been added subsequently, for a bare inspection shows that it was written with a different ink. It has also been shown,. and indeed admitted by the plaintiff, that the plaintiff had practiced to make her writing appear similar to that of the defendant, because the defendant claimed that his hand was more “English.” Indeed a number of exhibits conceded to be in the handwriting of the plaintiff show a wonderful capacity and skill on the part of the plaintiff to vary her writing.

Taking everything together, therefore, inclusive of probabilities and the motive the plaintiff had for possessing some evidence, there remains a fair doubt as to whether the defendant did execute the said certificate. But after all it is not necessary to determine the point specifically and absolutely. For all practical purposes it is sufficient to hold that, even if the defendant be assumed to have executed the said paper, it was executed, as hereinbefore stated, not as an evidence of marriage duly entered into, but as a cover to enable the plaintiff to, hide her illicit intercourse.

Many of the reasons which create doubt as to the genuineness of the alleged certificate of marriage, apply with equal force to the few out of many letters written by the defendant to the plaintiff in which the plaintiff is called wife in endearing terms. Moreover, words of endearment contained in love letters are never to be taken literally. The extravagant use of such words, therefore, cannot be held to conclude the defendant to their literal meaning, even if he did write them. If that were so, the plaintiff, with equal propriety, might be held to be absolutely concluded by the use of her maiden name in indorsing defendant’s checks. In a case of this kind the court is bound to look below the surface of appearances.

There are many other facts and circumstances of minor importance in the case. They have not been overlooked, but it is not practicable, and it would serve no useful purpose to discuss them in detail. Suffice it to say that there is none which calls for a modification of anything I have said.

Upon the whole case, after due consideration of all the details of it, inclusive of the probabilities, and after having seen the parties and their witnesses upon the stand and observed the manner in which each gave his or her testimony, I cannot find that the plaintiff has established her case by a fair preponderance of evidence, and consequently the defendant is entitled to judgment dismissing the complaint, with costs.

The attorneys for the defendant are directed to prepare and submit findings in accordance with the views expressed by me.

In this connection I feel it to be my duty to say a few words concerning the requests made by plaintiff’s attorneys for findings. Although the whole case turns upon a single question—viz., marriage or no marriage—plaintiff’s attorneys have submitted requests for 283 separate findings of fact and 6 requests for conclusions of law. The labor of passing upon these requests with due care and recording my ruling in each instance and attesting the same with my initials will consume several days’ time. Most of the requests are for findings upon isolated pieces of evidence. This practice has been repeatedly condemned by the courts, and especially by the general term of this court in Livingston v. Manhattan Railway Co., 42 St. Rep., 4, and in Schnugg v. N. Y. Elevated R. R. Co., 56 St. Rep., 251, and by the court of appeals in Steubing v. N. Y. Elevated R. R. Co., 138 N. Y., 658; 53 St. Rep., 186. Such detailed findings are wholly unnecessary for the proper protection of the rights of a client. It is only the necessary general or ultimate facts constituting the foundation of the decision which must be found, and a refusal to find a minor act which, if found, does not, while standing by itself, call for a change or modification of the general or ultimate facts already found, or for a change or modification of some conclusion of law based upon such general and ultimate facts, is wholly immaterial and does not constitute error. No trial Judge should, therefore, be asked to waste valuable time in passing upon unnecessary requests. The practice of doing so has lately, however, assumed such alarming proportions and has become such a great abuse that the Legislature should take cognizance of it and provide a remedy. If this is not done, the present judicial force available for trying equity cases will shortly become wholly inadequate for the dispatch of this class of cases, and the •delay in having a cause reached, which already is great, must necessarily become greater and greater. In order to do my share towards saving as much time as possible, I direct that the attorneys for the defendant examine, in the light of the opinion rendered by me and in connection with the findings to be prepared and submitted by them as already directed, the requests made by plaintiff’s attorneys, and submit a memorandum stating which of said requests should be granted and which should be refused. After the receipt of such memorandum and finding, I shall make a final disposition of the requests, and settle the form of my decision.


source: Caselaw Access Project

author: Van Brunt, P. J., Follett, J., (dissenting).

license: Public Domain

text:
    In the Matter of the East River Bridge Company.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Appeal—Rapid Transit Commissioners.
    The determination of rapid transit commissioners that a proposed elevated railroad is a public necessity, may be reviewed by the general term of the Supreme Court.
    2. Same—Denial op leave.
    Where the statute, under which such road is organized, affords no assurance of sufficient capital to complete the enterprise, leave to build the road should be denied.
    3. Same.
    It is not impolitic for the city of New York to authorize the construction of an elevated road, by which facilities will be afforded for persons to go beyond the city limits.
    4. Same.
    Reasons for not granting the application of a bridge company for leave to build an elevated railroad in lieu of the ordinary approaches to the bridge, stated.
    Motion by the petitioner to affirm the report of the commissioners.

      Hoadley, Lauterbach & Johnson, (.Edward Lauterbach, G, W Wingate, and George Hoadley, of counsel,) for the motion ; Morris & Steele, {Fordham Morris, G. G. De Witt, and,Clarence C. Ferris, of counsel,) opposed.
   Van Brunt, P. J.,

By chapter 101 of the Laws of 1892 the East River Bridge Company was incorporated, certainly with somewhat extraordinary powers. By this act it was organized with a capital of $25,000,000, which-it was authorized to increase or decrease at pleasure. It was also authorized to construct two bridges across the East river,—one between a point at or near Broadway, in the city of Brooklyn, across the East river, to a point or place between Delaney and Rivington streets and Columbia and Cannon streets, in the city of New York; and the other commencing at a point between the pier line of East river and Fulton street, in the city of Brooklyn, across the East river to a point or place between Jackson and Scammel streets, in the city of New York. It was further provided that an approach to said first-mentioned bridge should be constructed and maintained from a point on said bridge at or about Cannon street; thence extending westerly over, through, and along private property, and across the intervening streets, to the Bowery ; and thence across the Bowery to Spring street,—which extension might be extended, if in the judgment of a majority of the stockholders it should deemed for public convenience so to do from- its termination at the Bowery and Spring street, westerly above, through and along Spring street, to or near the Hudson river, in the city of New York. The company was also authorized to construct all necessary approaches other than those specified, and all necessary connections between said approach or approaches and bridges and any railroad or railroads in the city of New York, so as to enable passengers to be transported to and from the same. By chapter 102 of the Laws of 1892, amending the rapid transit act, the directors of any company incorporated to construct, maintain, and operate a bridge or bridges connecting a city of more than 1,000,000 of inhabitants with another situate in the state, and by the act of incorporation by which authority should have been conferred, or intended to be conferred, to construct, maintain, and operate, as a part of, or in connection with, this bridge, and approach or approaches thereto, extending generally in an easterly or westerly direction, may determine, in lieu of constructing such approach or approaches, to build, maintain, and operate an elevated railway, the route of which shall, be coincident with the route of said approach or approaches as defined by said act. The method of procedure of such bridge company in that behalf was by the amendatory act prescribed and regulated. The directors of the petitioner located the main cross-town approach above mentioned through a new street 50 feet wide, through private property, to the Bowery, and from thence, absorbing Spring street, through the same to West street, and thence, turning to the south, it continued along West street 1,200 feet, to the Desbrosses street ferry, connecting with the ferries of the Pennsylvania Railroad. An approach was also located to connect one bridge with the other, and to extend from such junction through Grand street to the Bast river. The directors of the bridge company determined to construct, in lieu of these approaches, an elevated railroad, and adopted a plan, of which a copy is annexed to the petition. The consent of "the local authorities to the construction was given, and the capital of the corporation reduced to $2,000,000, 10 per cent, of which has been paid in. The property holders along the proposed line of said elevated railroads having refused their consent to the construction, application was made to the general term for the appointment of commissioners under the rapid transit act, which-commissioners were appointed, who reported in favor of the enterprise; and the question now presented is whether the the court should confirm the same.

The learned counsel for the petitioner seems to have a rather exalted idea of the functions and the dignity of the determination of the commissioners appointed in this proceeding. It is urged that the determination of the commissioners that the construction of the proposed road is a public necessity will not be reviewed by this court, except fraud or manifest error on their part be averred, which is not the case, and that the conclusions arrived at by them upon all matters of fact are the same as the verdict of a jury, as far as this court is concerned; and our atttention is called to the case of In re Nassau Cable Co., 36 Hun, 272, where, the commissioners having reported adversely to the building of the proposed road, it was held that, in the "absence of fraud or mistake in the proceedings, the general term had no power to send the case back, or to appoint a new commission,- but that the determination of the commissioners was final. This conclusion was evidently in accordance with the law. There is no provision in the rapid transit act for any action upon the part of the court unless the report of the commissioners is in favor of the construction of such railroad. Hence, by the very terms of the act, if the commissioners report against the enterprise, it is final; and for that reason the commissioner, in proceedings of this nature, have always resolved questions in regard to which there may be any possible doubt in favor of the applicant, in order that it may be finally determined by the court as to whether their conclusion should be confirmed or not. Our attention is also called to the case of In re New York El. R. Co., 70 N. Y. 357, where the court of appeals say that they cannot, or at least ought not, to interfere with the findings of the commissioners upon questions of facts. Upon an examination of the act it is difficult to see where the court of appeals have any authority or jurisdiction to interfere with the question as to whether the benefits arising from the construction of an elevated railroad are of such a character as to counterbalance any damage which will be done to private interests from its operation. This court is of opinion that the responsibility in respect to this matter of construction finally rests with it, and it is to determine, where the property holders have refused their assents, upon all the facts before the commissioners, and those of which they may take judicial notice, whether it should authorize the construction of the railroad, notwithstanding the objection of the persons who would be injuriously affected thereby.

It is not at all necessary to discuss any of the constitutional questions which have been raised upon this application, because, as we understand it, the court of last resort has practically swept away all the limitations which have been attempted to be placed upon private and local enterprises affecting private interests. In Re Church, 92 N. Y. 1, it has been held that a law relating to particular persons or things as a class was deemed local or private ; and that an act which under no possible circumstances could apply to but a single county of the state, because it created a class consisting of one, and did not refer by name to the individual composing this class of one, was not local, but general, and therefore constitutional. Under this decision, all that it is necessary to do to evade the constitutional provision is to use general language, qualified, however, by particular descriptions which can make it applicable only to the particular thing in respect to which there is an intent to legislate.

An objection has also been raised that the petitioner has not sufficient means or capital to complete the enterprise, or to compensate the property owners for the damage which will result in case the proposed railroad should be built, which, from the nature of the charter of the applicants in this proceeding, is a very serious objection. It is true that the capital of this corporation is now $2,000,000, which itself seems to be rather a small amount for the undertaking of an enterprise which, it is conceded, will cost from $30,000,000 to $35,000,000. But there is no certainty that capital to this amount will ever be paid in, because under the act of incorporation of this corporation, the amount of the capital stock may be diminished by the board of directors with the consent, in writing, of the stockholders holding a majority of the stock then issued and outstanding at any time. Hence, the security of these $2,000,000 of capital does not seem at all certain. And, further, under § 9 of the act, it -would seem that the directors might issue these two millions of stock upon the receipt of less than the par value thereof, because it is provided that the directors may issue stock at such time, and in such manner, and upon such terms, as they shall deem proper; the only limitation being that at least 10 per cent, of the par value of the stock at the time of the first subscription thereto shall be paid into the treasury of the corporation in cash. If the views expressed are well founded, it would seem to follow that it is the duty of the court to deny the present application, on the ground that the statute affords no adequate assurance of sufficient capital to enable the applicant to build the elevated railway and bridge, or to respond to the adjoining owners for the damages which would necessarily result from such building. But even this peculiar character of the organization which is seeking to exercise these extraordinary privileges does not seem to be the strongest objection against the granting of. the privileges asked for. It is proposed, under the guise of an approach to a bridge crossing the East river, to build an elevated railroad completely across the city, entirely absorbing-one of its streets, from the Bowery to West street, and then going' down West street to Desbrosses street, and there spread out and use West street for the purpose of a terminal station, in connection with the ferry of the Pennsylvania Railroad.

It has been urged by the opponents of this application that it is impolitic for the city of New York to afford facilities to get beyond the boundaries of the city. We do not think, however, that this position is well taken, because, by providing means whereby clerks and other persons employed in the city of New York may reach, within reasonable time, places where they can procure homes more cheaply than could be done within the city limits, ■ provision is thereby made for the more economical transaction of business in the city of New York; and, by thus affording an opportunity to persons so employed within the city of New York to procure cheap and comfortable homes within a reasonable distance, the business interests of the city are advanced, and the morals of those employed improved. It seems to us, therefore, that there is nothing in this objection.

There is another point which ought to cause the court to hesitate before granting the power souglit-by these applicants, and that is that there does not seem to have been any substantial progress made towards the construction of the bridge to which this elevated railroad is claimed to be an approach; and as this railroad may be finished within a short period of time compared to that which would be required for the construction of the bridge, and as the court, its consent once given, cannot impose conditions, the whole enterprise might stop with the building of this elevated crosstown railroad, to the great detriment of the city of New York at large, and with none of the advantages which are claimed to justify the court in granting such consent. And it seems to us that a cross-town road connecting merely the ferries from New Jersey with those of Brooklyn would not be of sufficient value to this municipality to justify the blockading of its streets, the interfering with its present and future means of transportaion, and the injury which would necessarily result to the owners of adjoining property.

There is a further objection to the granting of the application at this time, which we deem important. It is a matter of common knowledge that a commission acting in pursuance of authority are, and for some time have been, engaged in an effort to solve the problem of rapid transit. The question submitted to them in the hope that a successful scheme of rapid transit would result is one of the greatest importance to this municipality. The benefits, if any, which would result to it from the building of a cross-town road such as is now proposed, would be incomparably less than the other, and for that reason the right of the applicant to take the public streets should not be granted, at least until the present attempt to obtain a rapid transit system lengthwise of the island, other than underground, shall be substantially abandoned, because -the building of this road, or even the granting of the right to occupy the streets, might prove of serious embarrassment to the plans which may ultimately be formed. In short, the objections to the court, at the present time, giving its consent to the acquisition by the applicants of the privileges sought, are so numerous, ■and seem to us so obvious and so grave, that it is our plain duty to refuse to confirm the report of the commissioners.

Parker, J., concurs.

Follett, J., (dissenting).

I am unable to concur in the result reached by the majority of the court. One of the principal grounds upon which the report of the commissioners is rejected is that the ■coqporation “ has not sufficient means or capital to complete the enterprise. ” The second section of chapter 101 of the Laws of 1892 (the statute under which the corporation is organized) fixed its capital stock at$25,000,000, divided into shares of $100 each ; and it provides that the capital may at any time be increased or diminished by the board of directors, with the consent, in writing, of stockholders holding a majority of the shares then outstanding. Before these proceedings were begun, the capital stock was reduced to $2,000j000, all of which has been subscribed for at par, and 10 per cent, thereof paid in cash to the treasurer of the corporation. The estimated cost of the bridges and roads proposed to be constructed is from twenty-five to thirty million dollars. It has not been the policy of this state to require corporations engaged in the construction of internal improvements to procure sufficient capital to be subscribed to complete the work, or to acquire, by the exercise of the right of eminent domain, lands necessary for the enterprise. Corporations for the construction of steam roads may be originated on a capital stock equal to $10,000 per mile for each mile proposed to be constructed, of which 10 per cent, in cash must be paid in. Laws 1890, c. 565, § 2. Under this act, when $1,000 per mile has been paid in, representing a subscription of $10,000 per mile, construction may be begun, and the right of eminent domain exercised. Ten thousand dollars per mile is a very small part of the sum necessary to be expended to construct and equip a modern railway. I doubt if the. history of internal improvements in this country shows a single instance in which all, or a considerable part, of the the capital required to ■construct a railroad of any great length, or important canal, or a bridge for railways over any of our great rivers, has been subscribed before the corporation entered upon the work of construction. When the work of construction has progressed, and the enterprise is shown to be feasible, capital is attracted, and invested in the form of stock or bonds. It seems unreasonable to require that sufficient capital should be subscribed to complete an undertaking requiring the expenditure of twenty-five or more millions of dollars before the right to undertake its construction has been acquired. Sufficient should be subscribed to show that the application is made in good faith, and that there is reasonable probability that capital will be secured to complete the undertaking. It is said that sufficient capital has not been subscribed to pay the damages which will be occasioned to the owners of lands upon the route. A sufficient answer to this is found in the constitution, which provides: “Nor shall private property betaken for public use without just compensation,” The corporation could not take any private property without first making just compensation to its owner. I concur in the proposition “that a cross-rown [elevated] road, connecting merely the ferries from New Jersey with those from Brooklyn, would not be of sufficient value to this municipality to justify the blockading of its streets, the interfering with its present and future means of transportation and the injury which would necessarily result to the owners of adjoining property;” and it seems to me apparent that the earnings of such a line would be so insignificant that its construction would not be entered upon by capitalists without it connected with a bridge or bridges crossing the East river, and that the danger that the road may, and the bridges may not, be constructed, is quite remote. I fail to find any evidence in the record showing that the construction of the lines proposed would interfere with the operation of any one of the elevated roads now constructed, or of such as may hereafter be constructed, if such rights and possibilities are to be taken into account.

This proceeding is taken under the following provision of § 4 of chapter 4 of the Laws of 1891, which is substantially a copy of §18 of article 3 of the constitution of this state:

“Provided that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railway or railways be first obtained, or in case the consent of such property owners cannot be obtained, that the determination of three commissioners appointed by the general term of the supreme court in the district of the proposed construction, given after the hearing of all parties interested, and confirmed by the court, that such railway or railways ought to be constructed or operated, be taken in lieu of the consent of such property owners."

Is the right which is vested in the property owners to refuse assent to the construction of a road simply for the protection of their own private interests, or is it for the purpose of protecting public interest as well ? It will be observed that, in case the consent of one-half-of the property owners cannot be obtained, the approval of three commissioners, confirmed by the general term, may bo taken in lieu of their consent. Whether property owners may raise, and this court consider, objections of purely a public nature, or such as may affect the rights of existing street or elevated railroad corporations,, or of such corporations yet to be organized, which in no way affect the private rights of the contestihg property owners, cannot be profitably considered in a dissenting opinion, and especially in view of the fact that the question has not been discussed. I find no evidence which shows that the construction of this road will more seriously affect the rights of owners of property on its line than the construction of existing elevated roads has affected such rights on many of the streets of this city, or that it will more seriously affect the rights of such owners than will the construction of elevated railroads in the future, if any are to be constructed. It seems to me that this judgment is a dangerous precedent, and substantially denies the right to construct new elevated roads.

Upon the question whether the proposed bridge and railway will be a great public benefit, I rely upon (1) the approval of the common council of this city; (2) the approval of the war department of the United States; (3) the unanimous approval of a strong commission appointed by this court, which has not contented itself with giving a perfunctory report, but has supported its decision by cogent reasons. Gentlemen of distinction, who have given great attention to the question of rapid transit, testified before the commission, among them the mayor of the city of Brooklyn and ex-Mayor Hewitt, of this city. Mr. Hewitt testified :

“I think an elevated railway crossing the island in the general neighborhood specified there, and connecting with the various existing lines of transportation, would be a very great advantage to the city of Hew York and to its inhabitants. I think a connection between the ferries and the existing lines of transportation —the elevated lines—would be very advantageous to the city. Q. By such a railway as is proposed? A. By such a railway as you have sketched on that map. Q. An elevated railway ? A. Yes; I think it would be still more advantageous if it connected with all the ferries below Desbrosses street. I think the defect of it is that it does not go far enough.”

Other witnesses testified to the same effect; and it seems to me that the evidence sustains and justifies the conclusion reached by the learned commissioners, and that their report should be confirmed.


author: O’Brien, J.

text:
    Caroline Rademacher, Resp’t, v. Greenwich Insurance Company of City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Evidence—Opinion.
    Upon the question of the value of household goods, a person who has for a number of years been engaged in housekeeping, and has, from time to time, purchased similar articles, and is familiar with the prices at which they sell, is competent.
    2. Insurance—Arbitration.
    Where plaintiff’s want of good faith in the selection of an umpire, under an arbitration clause in a policy, is not so clear as to justify the court in ruling, as a matter of law, that the plaintiff has violated this condition, it is a question of fact proper to be submitted to the jury.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Robinson, Bright, Biddle & Ward, (E. Randolph Robinson and Henry Galbraith Ward, of counsel,) forappl’t; Louis Cohen, for resp’t.
   O’Brien, J.

Chapter 488 of the Laws of 1886 provides for a uniform policy of insurance, known as the “ Standard ” policy, and makes its use compulsory upon insurance companies. Such a policy the defendant issued to the plaintiff on wearing apparel and household goods, some of which, it is claimed, were totally, and some partially, damaged by a fire occuring on the 23d day of February, 1891. The policy contained the usual clauses to be found in standard policies Requiring the insured, if a fire occurred, to give immediate notice of any loss, and the further clause providing for an arbitration in the event of disagreement as to the amount of such loss. Upon these clauses, and the fact that the plaintiff claimed $627.66 as her damage, the questions presented upon this appeal turn.

The plaintiff alone testified as to value, and not only her competency, but the question of the weight to be attached to her evidence, is presented by proper exceptions. It was insisted on the trial, as it is upon this appeal, that there was a fraudulent statement of the amount of loss, that it did not exceed $70.53, and that the verdict of the jury was erroneous in awarding $400, as was the ruling in refusing to dismiss the complaint. The evidence, though slight and unsatisfactory upon the question of value, was, we think, sufficient for presentation to the jury. Although not a dealer in the articles injured, it nevertheless appeared that the plaintiff for a number of years had been engaged in housekeeping, and had from time to time purchased similar 'articles, and was familiar with the prices at which they sold. This property consisted of wearing apparel and household goods, and an expression of her opinion as to their value, coupled with the basis upon which such opinion was predicated, showing that she took the cost of such property, and deducted for depreciation 25 per cent., was some, and we think, competent, evidence upon the question of value. On the part of the defendant the experts testified that the property partially damaged was not worth more than $140, and that the damage thereto was but $70; and these experts expressed the belief that this was the extent of the injury to plaintiff, for the reason that they did not think, from the character of the fire and the appearance of the property in the house where the fire occured, that any property was totally destroyed. The value of property destroyed, the plaintiff had placed at over $200 ; and the questions were before the jury whether any property had in point of fact been destroyed, and, if so, how much, which, together with the partial damage sustained, would be the amount the plaintiff was entitled to recover. Whatever our personal views as to the credibility to be attached to the different versions, we think that where, as here, there was not that clear preponderance in favor of the defendant which would have justified a direction in its favor, the verdict of the jury thereon is conclusive, as it is upon the cognate question of overvalution.

In addition to -the question of the extent of the loss, the defendant, at the close of plaintiff’s testimony, and again at the close of the defendant’s testimony, moved to dismiss upon the following grounds: (1) That it is a condition precedent of the plaintiff's right to recover under the policy that her loss should be ascertained by appraisal, and, in cáse the appraisers disagree, by the decision of an umpire; (2) that the policy provides that proofs of loss should be furnished within 60 days of the fire, and the plaintiff has shown that they were not served until the expiration of 90 days. Upon the law there can be no doubt that the furnishing of proofs of loss, and, in the event of a disagreement, the undertaking, in good faith, to have an appraisal of the property, are conditions precedent to a right to recover, and a breach thereof, unless waived, constitutes a defense. Quinlan v. Providence, etc., Insurance Co., 133 N. Y. 357; 45 St. Rep. 200. The difficulty to be found in the questions presented upon this appeal is not in the law, which we regard as settled, but in its application to the facts here appearing. In determining, therefore, the strength of these objections, the testimony relating thereto must be referred to. Immediately after the fire the defendant was duly notified, and sent a person to examine the premises, and, although it is not apparent just how it arose, the parties disagreed as to the extent of tlie loss. The policy required that, in the event of such a disagreement, the loss should be determined by appraisal, each party selecting one appraiser, and, in case such appraisers disagreed, by the decision of an umpire. The agreement of arbitration, signed by both parties, bears date the 2d day of April. These appraisers could not agree, and undertook to select an umpire, the defendant’s appraiser selecting four names, which were forwarded to plaintiff’s appraiser, and upon which the latter did not act until he bad received a letter from defendant’s appraiser calling attention to the names submitted, and requesting an 'answer, which was sent on the 13th of April by the plaintiff’s appraiser, who, without objecting in his letter to the names submitted by defendant, proposed three other names. To this the defendant’s appraiser responded, stating that he had made an examination of the standing of the parties submitted to act as umpire, and that he could not accept any of them, because he had ascertained that they were not furniture dealers, or in any way competent to act in a loss of the kind, and that he would like to hear from the plaintiff’s appraiser as to whether he accepted or declined the parties offered by him. In addition, the plaintiff’s appraiser testified that he had suggested the names of furniture men, naming one firm, and' that he was unable to agree with the other side upon an umpire. The motion to dismiss upon this branch was necessarily placed upon the ground that upon this showing by plaintiff the court was bound, as a matter of law, to hold that the plaintiff had not complied with this condition of the policy in obtaining an appraisal.

In Uhrig v. Williamsburg City Fire Ins. Co., 101 N. Y. 365, it was said:

“ Under the arbitration clause it was the duty of each party to act in good faith to accomplish the appraisement in the way provided in the policy; and if either party acted in bad faith, so as to defeat the real object of the clause, it absolved the other party from compliance therewith, and if either party refused to go' on with the arbitration, or to complete it, or to procure the appointment of an umpire, so that there could be an agreement upon an appraisal, the other party was absolved. The claimant under such a policy cannot be tied up forever, without his fault and against his will, by an ineffectual arbitration.”

And, as further said in the opinion in that case:

“ Upon all the evidence, it was a question of fact for the jury to determine whether there was any breach of this clause in the policy.”

So, here, we think it was, upon the evidence, a question of fact proper to be submitted to the jury, because plaintiff’s want of good faith was not so clear as to have justified the court in ruling, as a matter of law, that the plaintiff had violated this condition. Had the defendant requested to go to the jury upon this question, it would undoubtedly have been entitled to do so, as, upon all the evidence, a question of fact was fairly presented whether or not the plaintiff had acted in entire good faith in endeavoring to' select, after the appraisers had disagreed, a disinterested and impartial umpire. Such request, however, was not made by defendant, relying, as it did, upon the right to have the question disposed of as a matter of law ; and, with this position taken by the defendant, we do not think the ruling of the trial judge was wrong.

The other ground of the motion to dismiss, namely, the failure to present proofs of loss in time, is the most serious question in the case. It is conceded that the fire occurred in February, that proofs were not furnished until May, and that the policy required that they should be furnished within 60 days after the fire. Upon the law, therefore, unless the evidence shows that this condition has been expressly or impliedly waived, it would bar the plaintiff’s recovery. The question of what will constitute a waiver has been frequently discussed. In Koller v. Insurance Co., it was said :

“While a waiver of a condition of forfeiture need not be based upon a technical estoppel, yet, in the absence of an express waiver, some of the elements of an estoppel must exist,—the insured must have been mislead by some action of the company which caused the omission to comply with the condition, or it must have done something, after knowledge of a breach of the condition, which could only be done by virtue of the policy. Armstrong v. Agricultural Insurance Co., 130 N. Y. 560 ; 42 St. Rep. 555 ; Ronald v. Mutual Reserve F. L. Association, 132 N. Y. 378; 44 St. Rep. 407. Forfeitures plainly incurred, and not waived, must be enforced by the courts. Quinlan v. Providence, etc., Insurance Co., 133 N. Y. 356; 45 St. Rep. 200.. * * * Mere silence at a time when it was not required to speak is not a waiver, nor evidence from which waiver may be inferred, (Armstrong v. Agricultural Insurance Co., supra ;) so that the mere retention of proofs served after the time limited for their service is not performance of the condition precedent.”

The facts relied upon in this case to show waiver are the receipt of the proofs of loss without objection, and retaining the same, and the entering into the agreement of arbitration before the time had expired within which the proofs of loss should have been furnished. In Brink v. Hanover F. Insurance Co., 80 N. Y. 113, it was said:

“If a company intends to avail itself of the technical objection that the proofs are not filed in time, common fairness requires that it should refuse to receive them on that ground, or at least promptly notify the assured of their determination; otherwise, the objection should be regarded as waived.”

And, though the question has not been directly passed upon in this state, an argument in support of the proposition that the entering into an arbitration before notice or proofs of loss have been served is a waiver of notice or proofs of loss, notwithstanding a stipulation in such submission that it shall not operate as such waiver, is furnished by the case of Gale v. Insurance Co., 33 Mo. App. 664. The answer of the defendant does not affirmatively allege a forfeiture for failure to file proofs of loss; such answer admitting that they were received at the date fixed in the complaint, which was subsequent to the 60 days, but denying that the plaintiff has complied with the conditions of the policy. Although we think that the question as to waiver by implication is close, yet, in view of the issues, and the way in which this question was presented, we think that the trial judge was not obliged to dismiss the complaint; and, upon the same motion being made at the close of the case, the additional reason was then furnished by the circumstance appearing that after the appraisers had failed to agree, but within the time limited for filing proofs ■of loss, the defendant sent three appraisers, who made out a detailed statement of the loss, after fully interrogating the plaintiff upon the extent of her claim. Our conclnsion, therefore, is that the judgment is right, and should be affirmed, with costs.

All concur.


author: Pratt, J.

text:
    Frederick H. Smith, Resp’t, v. The City of Athens, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December, 1893.)

    Pleadings—Answer.
    An answer, which expressly admits the due execution of the contract, operates as a waiver of any defects in its execution and is an election to defend the action on the merits.
    Appeal by the defendant, the city of Athens in the state of Georgia, from an order of the supreme court, made at the Kings county special term and entered in the office of the clerk of Kings county on the 21st day of June, 1893, denying its motion for leave to amend its answer.
    This action was brought by the plaintiff, claiming to be the owner and holder of seven bonds of the par value of $7,000 of the Athens City Water Works Company, part of an issue of $125,000 of bonds; to restrain the defendants from issuing and disposing of certain bonds of the city of Athens, Georgia, to the amount of $125,000, on the alleged ground that the city had violated a contract for its water supply in course of performance by the Athens City Water Works Company, and in connection with which the first above-named issue of bonds was made, and had undertaken the construction of another system of water works; and to provide the means for such construction, was about to issue and negotiate a series of bonds to the amount of $125,000.
    The main defendant and the sole defendant answering to the merits was the city of Athens, a municipal corporation existing under the constitution and laws of Georgia. By its answer the city of Athens admitted the execution of the contract set forth in the complaint, but denied the material allegations of the complaint as to the alleged performance by the Athens City Water Works Company, of the contract, and averred a breach of the said contract by the water works company, whereby the city and its citizens were deprived of wholesome water fit for domestic use and sufficient for protection against fire, and claimed that the erection of new water works was a public necessity rendered indispensable in consequence of said breach of said contract.
    After issue joined, March 30th, 1893, application was made to the court at special term, at Chambers, June 17th, 1893, for leave to amend the answer by inserting therein the following allegation:
    “ Fourteenth. Fora further separate and distinct defense to the alleged cause of action set forth in the said complaint, in addition to and herein repeating the several foregoing allegations, admissions and denials, the said answering defendant alleges, upon information and belief, that the said contracts and the incurring of the debt as therein provided, on the part of this answering defendant, did not have the assent of two-thirds of the qualified voters of said city of Athens, Georgia, at an election for that purpose held as prescribed by the laws of Georgia,, and that such assent and popular vote were, at the time of making of such contracts, and ever since have been and now are, required by the constitution and law of the state of Georgia, and were then and still are essential to the entire validity of said contracts, and that such contracts were and are invalid in any event, under and pursuant to such constitution and law, for any longer period than one year.” , -
    This application for leave to amend the answer was denied, and from the order of denial this appeal was taken.

      Wm. Allen Butler and John 'Notman, for app’lt; John Sabine Smith, for resp’t-
   Pratt, J.

The order denying leave to amend the answer was discretionary and the discretion was wisely exercised.

The answer expressly admits the due execution of the contract. The alleged defects in the execution of the contract, if they exist, must have been well know to appellant when the answer was interposed. If they existed, the appellant clearly elected to waive them and defend the action upon its merits. To such election it should be held. To allow it first to admit and then, after reflection, to deny facts upon which the rights of parties rest, would not be in furtherance of justice.

Various other considerations, which need not be stated at length, sustain the order appealed from.

Order denying leave to amend answer affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Order affirmed, with costs and disbursements.


author: Dykman, J.

text:
    T. Ella Carpenter, Resp’t, v. Edgar Knapp, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December, 1893.)

    New Trial—Newly Discovered Evidence.
    A motion for a new trial on the ground of newly discovered evidence, where the only practical effect of the new trial will he to permit the defendant to make another effort to secure a verdict for nominal or diminished damages, is properly denied.
    Appeal by the defendant, Edgar Knapp, from an order of the supreme court, made at Duchess special term and entered in the office of the clerk of Duchess county on the 10th day of February, 1893, denying defendant’s motion for leave to serve an amended and supplemental answer and for a new trial on the ground of newly discovered evidence.

      W. Farrington , for app’lt; Fred M Ackerman, for resp’t.
   Dykman, J.

This is an appeal from an order of the special term denying a motion of the defendant for leave to file an amended and supplemental answer settingup a justification of the slanderous words recited in the complaint in this action, and for a new trial on the ground of newly discovered evidence.

The action was for slander. It was tried at the Duchess county circuit in June, 1892, and a verdict rendered in favor of the plaintiff for $1,000. The slander alleged against the defendant imputed unchastity to the plaintiff, and the testimony on the trial, which is printed in this record, manifested malicious motives for the utterance of the words.

An appeal from the judgment was taken to the general term by the defendant, and the judgment was affirmed. Thereupon this motion was made.

It is to be observed that an amendment and new trial is sought for the purpose of introducing testimony to prove the bad character of the plaintiff. The defendant has been convicted of slander, but now he desires an opportunity to decrease the damages.

The only practical effect of a new trial would be to permit the defendant to make another effort to secure a verdict for nominal or diminished damages.

Such an effort was made upon the trial, and witnesses were called who spoke of the character of the plaintiff. If the defendant was not fully prepared then it was his duty to be so, and all the witnesses were within his reach.

There is no reason for believing that a different result would be produced upon a new trial of the action. The affidavits upon which the motion was based are very unsatisfactory and fail to command belief, and many of them are destroyed by counter affidavits.

In no respect do the moving papers make a case which justifies a new trial within well-settled principles of law.

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J. concurred; Barnard, P. J., not sitting.

Order denying motion for new trial on ground of newly discovered evidence affirmed, with costs.


text:
    Michael Moore, App’lt, v. John Duffy, as Sheriff, etc., et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December, 1893.)

    1. Receiver—Title to real estate.
    The title of the judgment debtor to real estate vests in the receiver on filing his appointment in the proper office.
    2. Same—Conveyance by debtor.
    A subsequent conveyance by the judgment debtor transfers the title to the grantee, subject to the claim of the receiver.
    3. Same—Party.
    The receiver is a necessary party in any action brought to apply the land to the payment of the judgment.
    Appeal by the plaintiff, Michael Moore, from an order and judgment of the supreme court, entered in the office of the clerk of the county of Westchester on the 28th day of September, 1888 (and subsequently resettled), sustaining the demurrer of the defendants, Patrick Farrell and others, to the plaintiff’s complaint.
    The complaint alleged that on May 10, 1886, Michael Moore recovered a judgment against one Patrick Farrell, which was docketed in the office of the clerk of the county of Westchester on the same day, and an execution was issued thereon, by virtue of which the sheriff levied upon the interest of' Farrell in certain real estate, and after due advertisement exposed the same for sale, and on October 4, 1886, sold the same to Moore for the sum of thirty dollars and three cents; whereupon the sheriff delivered his certificate of the sale thereof to Moore, certifying thereby that the sale would become absolute, and that" Moore would be entitled to a deed from him of such land unless the same should be redeemed agreeably to the provisions of the statute; such certificate of sale was thereupon filed in the office of the clerk of Westchester county, and thereafter the sheriff returned the execution wholly unsatisfied.
    That on November 5,1886, an order was made in supplementary proceedings brought upon such judgment, which contained the usual injunction clause. The judgment debtor duly attended before the judge, as directed by such order, and on November 10, 1886, an order was made appointing John H. Clapp receiver of all the property, debts, equitable interest, rights and things in action, effects and estate, real or personal, of said Patrick Farrell, which order enjoined and restrained Farrell or his agents from making or suffering any transfer of, or interference with, his property not exempt from seizure by section 2463 of the Code of Civil Procedure, or in which he was in anywise interested, except in ■obedience thereto.
    That Clapp duly qualified as such receiver in accordance with the provisions of ■ the order, which was duly filed in the office of the clerk of the county of Westchester on November 10, 1886.
    That on December 8,1886, Farrell with his wife, in consideration of the sum of one dollar, wrongfully and unlawfully,in disobedience to, and in violation of, such order, made, executed and delivered to one Patrick Costello a full covenant warranty deed, dated on that day and recorded on December 13, 1886, in the office of the register of Westchester county, by which Farrell purported to convey to the said Costello the premises in question.
    That on December 14, 1886, said Costello obtained from the sheriff of the county of Westchester a sheriff’s certificate made and executed by such sheriff in which it was recited that the said Costello had paid to the sheriff the sum of thirty dollars and three cents, the amount realized by the latter upon the sale of such premises under the execution, with interest, and that the said Costello claimed the right to redeem as a grantee of the judgment debtor, under a deed of such premises, whereby it was certified that the premises in question had been redeemed by said Costello, which certificate of redemption was recorded in said clerk’s office on December 14, 1886.
    That said Costello was then in possession of the premises in question, claiming to own the title to the same in fee simple, and that the deed of Farrell and wife to Costello, and that the certificate of redemption given by such sheriff to Costello, were wholly null and void.
    That after the expiration of fifteen months from the date of the sale of such premises under execution, Moore duly demanded from the sheriff the deed conveying to him the premises, but that the sheriff neglected and refused to deliver the same to him.
    The relief demanded was for a decree ordering and adjudging that the deed from Farrell and wife to Costello, and the certificate of redemption given by the sheriff to Costello, were null and void, and for an order directing that the said sheriff execute and deliver to the plaintiff his deed of the premises in question, and for such other and further relief as might be just
    The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that there was a defect of parties in that the receiver of Patrick Farrell was not made a party to the action.

      Frederick W. Sherman, for app’lt; F. M. Thompson, for resp’t Farrell; L. G. & W. P. Platt, for resp’t Costello.
   Pratt, J.

The title of the judgment debtor vested in the receiver on filing his appointment in the proper office. But it was a qualified title in the nature of a security for the plaintiff in the judgment.

As the case contains nothing to show that the title of the receiver has ceased, we must treat it as in force.

The title vested in the receiver being qualified and limited, as stated above, did not exhaust the title of the judgment debtor. Subject to the right of the receiver to resort to the land to pay the judgment, the title remained in the judgment debtor, and the conveyance to Costello transferred to him the title, subject to the claim of the receiver.

He was not a stranger to the title, and his redemption was valid and nullified the sale and the certificate issued thereunder.

The sheriff correctly refused to execute a deed to Moore.

The receiver is a necessary party in any action brought to apply the land to the payment of the judgment. So, should Costello seek to discharge the land from the lien of the judgment, the receiver would be a necessary party.

The demurrer was properly sustained and the judgment must be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


author: Martin, J.

text:
    William H. Carrier, Resp’t, v. The United Paper Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Contract—Promise to pat third person,
    To render a covenant in a deed to assume a mortgage available to a third person, the grantor must have a legal interest in having the covenant performed imfavor of such third person.
    8. Attachment—Affidavit.
    To entitle to a warrant of attachment, the affidavit must show facts sufficient to establish a cause of action against the defendant.
    Appeal from orders denying motions to vacate an attachment*

      I. N. Ames, for app’lt; W. G. Tracy, for resp’t.
   Martin, J.

The question in this case arises upon two appeals* One from an order denying the defendant’s motion to vacate an attachment granted herein, and the other from a similar order upon a motion made for the same purpose by the receiver of the defendant. The ground of both motions was that the affidavit and papers upon which the attachment was granted failed to show that a cause of action existed against the defendant. The statements contained in the affidavit upon which the attachment was issued, at least so far as they bear upon the question involved on this appeal, were, substantially, that a cause of action existed in favor of the plaintiff against the defendant to recover the sum of §3,231 as damages for breach of contract arising from the following facts: That on and prior to October 1, 1892, Herbert D. Wood and George D. Davis were the owners in fee and in possession of certain premises described. That by deed from said Wood and Davis, in which their wives joined, the defendant, “for a valuable consideration, became the purchaser of said premises, and, among other things, assumed and agreed to pay to one Charles W. Avery, this plaintiff’s assignor, a certain mortgage upon said premises ” given to secure the payment of the sum of $3,000, •with interest from December 13, 1891, which was then due and owing to said Avery thereon. That the deed contained the following provision: “ Said premises are conveyed subject to two certain mortgages—one executed to Charles W. Avery, December 13, 1886, for $3,000, upon which there is due the sum of $3,000, with interest from December 13, 1891; and one for $6,500, executed to Charles W. Avery, May 12, 1892, upon which there is unpaid said sum with interest — which said mortgages the said party of the second part assumes and agrees to pay as a part consideration and purchase price of the above-described premises.’’ That the defendant duly accepted said deed, caused it to be recorded, took possession of the mortgaged premises, and has ever since been, and now is, in possession of the same. That before the commencement of this action said mortgage, with all the rights of action under said deed and covenant on the part of the defendant, were assigned by said Avery to the plaintiff, who is now the owner and holder thereof; and that by reason of the premises the defendant was justly indebted to the plaintiff in the sum of $3,231, with interest from May 25, 1893, which sum is now due and wholly unpaid. That deponent was justly entitled to recover said sum from said defendant, over and above all counterclaitos, discounts, and set-offs known to the plaintiff. That the above-titled action was brought for said cause, and the summons therein had been issued. That the defendant was a foreign corporation, and that the cause of action arose in this state. The same facts were stated in the complaint, and are substantially all the facts that were ■stated as a ground for the issuing of the attachment, or as constituting a cause of action against the defendant.

The claim of the appellant is that the covenant to pay the .$3,000 mortgage was not made with Avery, nor for his benefit, but for the benefit of Wood and Davis; and that the plaintiff cannot recover without showing that at the time of such conveyance Wood and Davis were personally liable to pay the mortgage debt. The success of this appeal depends upon the correctness of that claim. In King v. Whitely, 10 Paige, 465, where the grantee of mortgaged premises, who was neither legally nor equitably interested in the payment of the bond and mortgage, except so far as the same was a charge upon his interest in the premises, conveyed the mortgaged premises subject to the mortgage, and the conveyance recited that the grantees therein assumed the payment of the mortgage, and were to pay off the same as a part of the consideration of the conveyance, it was held that, as the grantor was not personally liable to the holder of the mortgage to pay the same,, the grantees were not liable to the holder of such mortgage for the deficiency. The same doctrine was held in Trotter v. Hughes, 12 N. Y., 74, and in Garnsey v. Rogers, 47 N. Y., 233, where the case of King v. Whitely was cited with approval. The question again arose and was decided in Vrooman v. Turner, 69 N. Y., 280. It was there again held that a grantee of mortgaged premises whose conveyance recited that the land was conveyed subject to a mortgage, and that the grantee assumed and agreed to pay the same as part of the consideration, was not liable for a deficiency arising upon a foreclosure and sale, in case the grantor was not personally liable, legally or equitably, for the payment of the mortgage. In delivering the opinion in that case, Judge Allen said:

“ The rule which exempts the grantee of mortgaged premises subject to a mortgage, the payment of which is assumed in consideration of the conveyance as between him and his grantor, from liability to the holder of mortgage when the grantee is not bound in law or equity for the payment of the mortgage, is founded in reason and principle, and is not inconsistent with that class of cases in which it has been held that a promise to one for the benefit of a third party may avail to give an action directly to the latter against the promisor, of which Lawrence v. Fox, 20 N. Y., 268, is a prominent example. To give a third party who may derive a benefit from the performance of the promise an action, there must be: First, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.”

In Cashman v. Henry, 75 N. Y. 103, the doctrine of the preceding cases were recognized and followed; and also in Thayer v. Marsh, id 340; Pardee v. Treat, 82 N. Y. 387, 388; Dunning v. Leavitt, 85 N. Y. 35; Carter v. Holahan, 92 N. Y. 504; Wilbur v. Warren, 104 N. Y. 192, 197 ; 5 St. Rep., 602 ; Litchfield v. Flint, 104 N. Y. 550; 5 St. Rep., 800; Beveridge v. N. Y. El. Railroad Co., 112 N. Y. 26; 20 St. Rep., 962; Comley v. Dazian, 114 N. Y. 161; 22 St. Rep. 813 ; Frank v. N. Y., L. E. & W. Railroad Co., 122 N. Y. 221; 33 St. Rep., 235; Lorillardv. Clyde, 122 N. Y. 504; 34 St. Rep., 224; Wager v. Link, 134 N. Y. 125; 45 St. Rep., 584.

In Durnherr v. Rau, 135 N. Y. 219, 222; 48 St. Rep., 394, which is the latest case we find in the court of appeals on this sub ject, Judge Andrews said :

“There is lacking in this case the essential relation of debtor and creditor between the grantor and a third person seeking to enforce such a covenant, or such a relation as makes the. performance of the covenant at the instance'of such third person a satisfaction of some legal or equitable duty owing by the grantor to such person, which must exist, according to the cases, in order to entitle a stranger to the covenant to enforce it. It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for this benefit, or at least such benefit must be the- direct result of performance, and so within the contemplation of the parties; and, in addition, the grantor must have a legal interest that the covenant be performed in favor of the party claiming performance.”

A somewhat extended and careful examination of the cases bearing upon this question has disclosed that the courts have with usual uniformity held that to render such a covenant available to a third person the grantor must have legal interest in having the covenant performed in favor of such third person ; and thus I am led irresistibly to the conclusion that neither the plaintiff nor his assignor could maintain an action on the covenant contained in the deed to the defendant, without alleging and proving that the grantors were in some way liable to pay to the plaintiff or his assignor the debt secured by the mortgage mentioned, or at least that they had a legal interest in having the covenant in such deed performed. As no such facts are stated, either in the verified complaint or affidavit upon which this attachment was granted, it seems to me clear that the plaintiff failed to show by affidavit that a cause of action existed against the defendant.

To entitle a plaintiff to a warrant of attachment he must by affidavit show sufficient facts to establish a cause of action against the defendant. Jacobs v. Hogan, 85 N. Y. 243, 244; Manton v. Poole, 67 Barb. 330; Walts v. Nichols, 32 Hun, 276; Belden v. Wilcox, 47 Hun, 331; 14 St. Rep., 374; Pomeroy v. Ricketts, 27 Hun, 242 ; Marinette Iron Works v. Reddaway, 13 N. Y. Supp. 426; 36 St. Rep., 1024; Westervelt v. Agrumaria Sicula, Societa Anonima di Transporti, Marittimi, 58 Hun, 147; 33 St. Rep., 833 ; McCulloh v. Aeby & Co., 9 N. Y. Supp. 361; 31 St. Rep., 125; Pride v. Indianapolis, D. & W. Railroad Co., 4 N. Y. Supp. 15; 21 St. Rep., 261; Reilly v. Sisson, 31 Hun, 572; Cattaraugus Cutlery Co. v. Case, 9 N. Y. Supp. 862; 30 St. Rep., 961; Moore v. Becker, 13 St. Rep., 567 ; Labalt v. Schalhof, 4 N. Y. Supp. 819; 22 St. Rep. 532; Smadbeck v. Sisoon, 31 Hun, 582 ; Wessels v. Boettcher, 69 Hun, 306; 53 St. Rep. 313. We think the affidavits and papers upon which the attachment in this case was granted were insufficient, and that the special term erred in denying the motions to vacate it. Orders of special term reversed, with $10 costs and disbursements, and motions to vacate attachment granted, with $10 costs to defendant.

All concur.


author: Dwight, P. J.

text:
    J. Clarence Osborn, App’lt., v. Clara Delafield et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Brokers.—Violation of Instuctions.
    A consignor, whose instructions have been violated, has no right of action against the broker, if he has suffered no loss therefrom.
    Appeal from a judgment in favor of the defendants.

      Louis E. Fuller, for app’lt., E. M. Wells, for resp’ts.
   Dwight, P. J.

J. On the 24th of November, 1891, the plaintiff, at Port Byron, in Cayuga county, consigned to the defendants, commission merchants at New York city, 200 boxes of evaporated apples, to be sold for his account, and received from them an advance, on the consignment, of $500. The defendants also paid freight and other charges on the shipment, which, with their commissions on the sale finally made, amounted to the sum of $72.75. The market for the goods seems to have been a falling market, and, after some correspondence between the parties in respect to the price at which they should be sold, the plaintiff finally, by the letter of April 12, 1892, consented to a sale of the apples—to quote the language of the letter—“at a price that will pay you what you have paid me, and your freights and commissions.” On the 28th of April, the defendants, without further communication with the plaintiff, sold the apples for a price less than that limited by the plaintiff’s letter of April 12th, and ■rendered to him an account of sales, which charged him with the ■amount advanced, with interest, and freight and other charges, and with their commissions, and credited him with the amount received for the apples. The statement exhibited an apparent balance due them of $138.84, for which they drew on him at sight. The plaintiff did not pay the draft, but he brought this action, in which he claimed to recover from the defendants the differ■ence between the price limited by his letter of April 12th and the ■price at which the apples were sold. Upon his own theory of the •case, the action was ill advised. He might have well rested content with his advantage, and have permitted the defendants to bear the loss which they had themselves incurred by selling the consign tnent for less than their advance and expenses. Certainly, the plaintiff had sustained no loss by the violation of his instructions, for he had already received, or had the benefit of, the full price at which he had authorized the sale to be made, viz., the amount advanced by the defendants on receipt of the consignment •and their expenses and commissions. The facts above recited are found by the referee, mainly as requested by the plaintiff, and his conclusions of law and direction for the judgment are well founded thereon.

Judgment appealed from affirmed.

All concur.


text:
    Henry Oberlies, Resp’t, v. Balthaser Bullinger, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894)

    1. Contracts—Building—Arbitration.
    A provision for arbitration, in a building contract, does not apply where the owner refuses to pay for the work on the ground that the contract has not been substantially performed.
    3. Same—Architect’s certificate.
    Where the contract provides for part payment as the work progresses and the balance when completed, to be made in accordance with the architect’s certificate such certificate is required only as to the intermediate payments, and not as to the final payment.
    3. Same—Waiver.
    The owner does not waive damages for delay, b.y permitting the contractor to proceed after the limited time, without expressing disapproval or dissatisfaction.
    ■4. Same—Substantial defects.
    A defect in the construction may be substantial, though it does not run through the entire structure and can be remedied without disturbing or interfering with the main building.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      W, S. Hubbell, for appl't; A. Benedict, for resp’t.
   Dwight, P. J.

The action was to recover a balance claimed to be due on a contract by which plaintiff agreed to do all the carpenter work of a house to be built for the defendant for the sum of $3,050. The complaint sets out the contract in full, and it contains the following, among other provisions :

“ Eighty per cent, of the value of the work executed will be paid from time to time as the work progresses, and the balance when the whole job has been completed and accepted. Payments made in accordance with the architect’s certificates. * * * Second. The party of the second part shall have the right and privilege, at any time during the progress of the said building, to make any alterations, deviations, additions, or omissions in the work or materials hereby contracted for, without making void this contract; but the true value of such alterations, deviations, .additions or omissions shall be added to or deducted from the amount specified in this contract, as the case maybe. * * * Fourth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Oscar Knebel, architect, employed by party of the second part to superintend the construction of said building, with a view to the due execution of the works on the part of the party of the first part, and his decision shall be final and conclusive; but should any dispute arise as to the true value of the alterations, deviations, additions, or omissions in the work or the materials hereby contracted for, the value in dispute shall be determined by two competent persons,—one employed by the party of the first part, and the other by the party of the second part,—and they shall have power to name an umpire, whose decision shall be binding on all parties.”

The architect made no inspection of the work, during its progress, and made no certificates of the amounts earned by the contractor from time to time; but the defendant made payments, from time to time, aggregating the sum of $1,900, and leaving unpaid, of the contract price, the sum of $1,150, for which to get-her with a small amount of extra work, this action was brought. After the work was completed, as was complained by the plaintiff, the architect made such inspection as he was then able to make, and gave to the plaintiff a certificate in the following terms, addressed to the defendant,

“ Sir : This will certify that the carpenter and joiner work of your house on Alexander St., under contract with Henry Oberlies, has been completed in accordance with the plans and specifications, with the exception of the roof of the addition, which is deficient in height about five inches.
[Signed] 1 Oscar Knebel, Architect.’ ”

The plaintiff presented this certificate to the defendant, and demanded the entire balance of the contract price, together with the value of the extra work, amounting in all to the sum of $1,223.75, which the defendant declined to pay, and he declined to accept the house as built and completed in accordance with the contract. There are other particulars, of perhaps minor importance, besides the defect in height of the rear portion of the house, in which the defendant complains that the work of the plaintiff was not done in conformity with the contract and specifications ; and it is conceded that the work was not completed until something more than a month after the time (¡November 1, 1887) which was fixed by the contract for its completion. The case lias been tried twice. On the first trial, in January, 1890, the court directed a non-suit, and ordered the plaintiff’s exceptions to be heard in the first instance at the general term. A motion for a new trial was accordingly made in this court, and was denied, and judgment was ordered for the defendant on the nonsuit. 1't was then considered as a matter of law, upon the undisputed evidence of the defect in the construction of the roof, the contract liad not been substantially performed. See opinion of the coart, by Maeomber, J., Oberlies v. Bullinger, 11 N. Y. Supp. 264; 33 St. Rep. 443. On appeal to the court of appeals the judgment entered on the order of this court was reversed, and a new trial was granted; it being there held that the defect in question was not such as to warrant the court in holding, as matter of law, that the contract had not been substantially performed, but that whether it had been or not was properly a question of fact for the jury. See opinion per curiam, Oberlies v. Bullinger, 132 N. Y. 598 ; 44 St. Rep. 851. The result of the new trial thus granted, and now under review, was a verdict in favor of the plaintiff for $1,277.96.

Two questions discussed on the present appeal were not determined by the decision of the court of appeals. One of them seems not to have been considered, and the other was held not to have been presented by the record, because not raised on the trial. Both of these questions relate to what are claimed by the defendant to be conditions precedent to a cause of action on the part of the plaintiff. Both arise upon provisions of the contract which are quoted above, and both were raised on the second trial. In respect to the last mentioned of them, the court of appeals, after quoting the fourth clause of the contract, as above stated, said:

“ The defendant seeks to uphold the nonsuit on the ground that an arbitration to settle the amount due on the contract was a condition precedent to the plaintiff’s right to recover, and that having failed to show that an arbitration had been had, or that he had offered to arbitrate, he was not entitled to recover. The answer to this position is that this question was not raised on the trial. * * * Had the defendant raised this objection, the plaintiff might have shown that the defendant had refused to arbitrate, or that an arbitration had been waived.’’

The question was undoubtedly raised on the last trial, with the same absence of proof of an arbitration, or an offer to arbitrate ; but the complete answer to it, we think, is that neither the claim of the plaintiff to recover nor that of the defendant for damages, is within the provision for arbitration contained in the contract. Upon recurring to the fourth clause, supra, it will be seen that the only matter to be arbitrated is “ any dispute ” which may “ arise as to the true value of the alterations, deviations, additions, or omissions in the work or materials hereby contracted for.” What are “ the alterations, deviations, additions, or omissions” here mentioned? The use of the indefinite article here is significant. It suggests that the alterations, etc., referred to, are elsewhere men tioned. and provided for in the contract. And so we find in the second clause of the contract, above quoted, a provision giving to the party of the second part (the owner) the privilege, at any time during the progress of the building, to make any alterations, deviations, additions, or omissions ” in the work or materials contracted for, the true value of which shall be added to or deducted from the contract price, as the case may be. These are undoubtedly the same “ alterations, deviations, additions, or omissions ” mentioned in the fourth clause, the true value of which, in case o£ dispute is to be determined by arbitration. And these being such as the owner has the privilege to make, or cause to be made, it is evident that the category does not include short comings and defects which result from the error or bad faith of the contractor.

The other condition precedent to a recovery contended for by the defendant was the certificate of the architect that the work was complete in full compliance with the contract and specifications. But it is doubtful if the words, “ payments to be made in accordance with the architect’s certificates,” in the provision of the contract first above quoted, have any application at all to the final payment of the amounts witheld during the progress of the work. Certain it is that they cannot have the force for which the defendant contends, for that would be to make the architect the final arbiter of the rights of the parties. The most obvious reference is to those payments, to be made from time to time, which required the estimate and computation by an expert of the amount of work done and materials furnished, and consequently of the amount of money earned, since the last payment. The scheme of the contract, in this respect, is that twenty per cent, of the amount earned by the contractor shall be withheld throughout the progress of the work, and that the eighty per cent, to be paid from time to time shall be certified to be due the contractor after the estimate and computation necessary to ascertain the amount. The final payment requires no such estimate or computation, but is merely the balance of the contract price after deducting the payments already made. But, further, to make the certificate of the architect that the work is completed, in all respects, in full compliance with the specifications of the contract, a condition precedent to the right to receive the final payment, wbuld be to ignore the distinction which the law makes between substantial and minor defects of construction, or those which work a forfeiture of the contract, and those for which compensation may be rendered in damages. Clearly, the question whether the defect described in the actual certificate was of the former or of the latter class could not be fully determined by the architect, but was a question upon which either party was entitled to take the judgment of the law. We conclude, therefore, that neither an offer to arbitrate, nor an "unqualified certificate of the architect was a condition precedent to the plaintiff’s right of action. On the other hand, by a similar course of reasoning, we arrive at the conclusion that no final certificate of the achitect could have the effect to deprive the defendant of either a complete or a partial defense to an action for the balance of the contract price,—the former, in case of a substantial failure to perform his contract on the part of the plaintiff; the latter, in case of minor defects of performance (including delay in the completion of the work), for which compensation may be rendered in damages. Both of these questions were therefore issues to be litigated in this case, and both were questions for the jury. The defendant’s motions for a nonsuit .and for the direction of a verdict were therefore properly denied ; but for the same reasons it was error to exclude evidence of defects in construction, other than that one specified in the certificate of the architect, and the defendant’s exceptions to rulings of this'character were well taken.

We think, too, that some of the' defendánt’s exceptions to the charge of the court point to. error in the submission of the case to the jury, which must be fatal to the verdict. The question of damages by delay in the completion of the work was litigated, and was submitted to the jury under the instruction that if the defendant permitted the plaintiff to go on with the work after the time limited by the contract, without expressing his disapproval and dissatisfaction, he thereby waived the damages for such delay, which he might otherwise have claimed. This, of course, was error, arising, probably, from a momentary confusion of the - waiver of damages with the waiver of forfeiture, as a complete defense, by reason of delay ; and we see no evidence that it did not mislead the jury, to the prejudice of the defendant, on the question of damages.

Another exception was taken to the instruction given to the jury in respect to what might constituted substantial failure of performance of his contract on the part of the plaintiff, to the effect, viz. that no defect of construction could be regarded as substantial unless it was one which ran through the entire structure, and which could not be remedied without disturbing or interfering with the main building. For the errors indicated the judgment entered on the verdict of the jury must be reversed, and a new trial may be had, in which it is to be hoped that the questions for-the jury here pointed out may be fully tried, and an end may be reached of an already protracted litigation.

Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.

All concur.