author: Forbes, J.

text:
    R. Wesley Walker, Pl’ff, v. Aaron Gardener, as Executor, etc., Def’t. Alman D. Mather, Pl’ff, v. Aaron Gardener, as Executor, etc., Def’t. Adelaide M. Van Tuyl, Pl’ff, v. Aaron Gardener, as Executor, etc., Def’t.

      (Supreme Court, Cortland Special Term,

      Filed December, 1893.)

    Costs—Executor.
    An executor, wlio has defeated a referred claim against his estate, is entitled, not to costs as matter of law, hut only to his disbursements.
    Motion to confirm referee’s report in each action, and for costs in each action.

      William C. Tuttle, for claimants; Dorr 0 Smith, for executor.
   Forbes, J.

This is a motion for the confirmation of the referee’s report in each of the foregoing entitled actions, in favor of the executor,. dismissing the claim, and awarding disbursments and referee’s fees to the executor, the prevailing party.

With the motion for a confirmation of the report is also made a motion for costs in each of said actions, to be awarded to the defendant, the executor, as the prevailing party, as a matter of right under § 3229, Code of Civil Procedure. The question is the same in each case.

It is submitted, on the part of the executor, that, because he has'defeated the claim which was referred under the statute', he is entitled to costs under § 3229 of the-Code of Civil Procedure, as of course.

This is a special proceeding, a reference under the statute of a disputed claim rejected and referred. Hallock v. Bacon, 21 Civ. Proc. Rep. 255; 40 St. Rep. 764; 64 Hun, 90; 45 St. Rep. 485; Hendricks v. Isaacs, 52 Hun, 100; 22 St. Rep. 563; reversed on other grounds, 117 N. Y. 411; 27 St. Rep. 449 ; Denise v. Denise, 110 N. Y. 568; 18 St. Rep. 373. Many cases have been cited in the briefs of counsel for the respective parties where the contest was determined in favor of the claimant, and in each case it has been held that, unless the claim was unreasonably resisted, or payment thereof neglected, and a certificate to that effect was made by the court or the referee, the only recovery which could be had was for referee’s fees and disbursements in favor of the party so prevailing.

No cases have been cited by either counsel, so far as I have been able to examine the cases cited, in which the executor succeeded in entirely defeating the claim of the claimant. Yet in each of the cases cited the court practically held that costs were not recoverable as under the Code of Civil Procedure, but could only be recovered under the provisions of the Revised Statutes, or in harmony with §317 of the Code of Procedure, as that section formerly existed before the adoption of the Code of Civil Procedure. Miller v. Miller, 32 Hun, 481; Agar v. Tibbets, 56 id. 274; 30 St. Rep. 456; In re McQueen, 58 Hun, 172; 33 St. Rep. 807; Hallock v. Bacon, 64 Hun, 90; 45 St. Rep. 485..

In the Hallock Case, Hardest, P-. J., wrote an elaborate opinion, collecting and reviewing all of the cases decided up to' the April term, 1892.

Of the same character are the cases of Hopkins v. Lott, 111 N. Y. 577; 20 St. Rep. 130; Hawxhurst v. Ritch, 119 N. Y. 621; 28 St. Rep. 675.

In each of these cases it was distinctly held that costs cannot be awarded against an executor or administrator, except under the Revised Statutes, unless the certificate required by § 1836 of the Code of Civil Procedure has been made, so that all of those cases may be taken as authorities direct that no other provision for costs is made upon a reference under the Revised Statutes when the plaintiff succeeds in establishing his claim.

Some of the earlier authorities hold that § 317 of the Code of Procedure and the Repealing Act of 1880 destroy the right to costs and disbursements under the statute in references of this character, but that doctrine seems to have been overruled and established to the contrary. Larkins v. Maxon, 103 N. Y. 680; 3 St. Rep. 642, in which case Krill v. Brownell, 40 Hun, 72 ; Sutton v. Newton, 15 Abb. N. C. 452; Overheiser v. Morehouse, 16 id. 208 ; Hall v. Edmunds, 67 How. Pr. 202, are cited and approved.

Were no other cases reported to aid us in the construction of the statute in reference to a recovery of costs, in defeating the claim, in a proceeding of this character when the executor or administrator -succeeds, the cases of Hall v. Edmunds, 67 How. Pr. 202; Sutton v. Newton, 15 Abb. N. C. 452; Overheiser v. Morehouse, 16 id. 208; Krill v. Brownell, 40 Hun, 72 ; Larkins v. Maxon, 11 Civ. Proc. Rep. 298; 103 N. Y. 680 ; 3 St. Rep. 642 ; and Hallock v. Bacon, 21 Civ. Proc. Rep. 255; 40 St. Rep. 764, might be deemed sufficient in themselves to determine that question.

In each of these cases it is distinctly held that, “Upon a reference, under the statute, of a claim against the estate of a deceased person, the prevailing party is entitled to recover his necessary disbursements. ”

These cases seem to unite with those first cited in establishing the fact that costs are not given upon references of this character under any section of the Code of Civil Procedure.

It may be that the proceeding is intended to be a friendly one, in which a reference is consented to by the stipulation of the parties, upon the order of the court, for the purpose of settling a disputed claim without the hazard or risk of an expensive litigation.

I find at least one case, the case of Van Sickler v. Graham, 7 How. Pr. 208, affirming the theory advanced by the line of authorities last cited, and holds: “ Where administrators successfully litigate a claim against the estate, referred under the statute, that they are not entitled to costs by the Code, only to disbursements, ^

The case of Hall v. Edmunds, 67 How. Pr. 202, holds that: “ The Repealing Act, Laws 1880, page 875, subdivision 8, provides that the repeal by that act shall not affect the right of the prevailing party to recover the fees of the referee, witnesses and his other disbursements, upon the reference of a claim against a decedent, under the repealed provisions of the Revised Statutes.” This doctrine is affirmed in the case of Larkins v. Maxon, 103 N. Y. 680; 3 St. Rep. 642.

To aid this construction, it will be seen by a reference to the foot notes, under § 1836, in Stover’s Hew York Code of Civil Procedure, edition 1893, pages 1705 and 1706, under references “ 1” and “ c,” the following summaries are made:

“ 1. Where the administrators successfully resist a claim against the estate they are not entitled to an additional allowance or percentage. They are not entitled to costs as in an action given by the Code; they are entitled only to disbursements.”

“ c. The prevailing party is entitled to recover his necessary disbursements upon a reference under the statute, of a claim against the estate of a deceased person.”

The case of Van Sickler v. Graham, 7 How. Pr. 208, and many other cases are cited as holding these propositions.

I am not asked to exercise a discretionary power to award costs, but they are claimed as matter of law. See Babbage v. Webster, 72 Hun, 456 ; 54 St Rep. 863, which seems not to be in harmony with the line of cases heretofore cited.

The report of the referee in each of these proceedings is, therefore, confirmed, with ten dollars costs of the motion in each case, together with the referee’s fees and disbursements in each case, to be taxed by the clerk of Cortland county, and orders may be prepared accordingly, with leave to the defendant to renew this motion, asking foran allowance of costs in the discretion of'the court.

The case of Agar v. Tibbets, 56 Hun, 272; 30 St. Rep. 456, is not applicable to the facts in this case. There, costs were asked as a favor to discontinue the action; the application in that case was addressed to the discretionary power of the court.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Frances E. Stewart, Pl’ff, v. Ambrose Blatchley et al., Def’ts.

      (Supreme Court, Broome Special Term,

      Filed December, 1893.)

    Pleadings—Demurrer—Co-deeendants.
    A demurrer cannot be served in any action or controversy between co-defendants.
    Demurrer to portion of answer of defendants Brown and Kent.
    Babcock, Sperry & Van Cleve, for def’ts Kellie Y., Watson et al; A. B. WaZes, for dpf’ts Silas P. Brown, James E. Kent et al.

   Forbes, J.

This is an action of partition. The defendants Silas P. Brown and Ellen Brown, his wife, and James B. Kent and Ella Kent, his wife, answered the plaintiff’s complaint in the above-entitled action, and served a copy of their answer upon the other defendants, Kellie Y. Watson, Milla L. Watson (Ogden) and Henry L. Watson, under § 1543 of the Code of Civil Procedure, controverting, in the manner required by § 521 of the Code of Civil Procedure, the title and interests of their codefendants, for the purpose of settling certain claims and rights in said action as between themselves.

The defendants Kellie Y. Watson, Milla L. Watson (Ogden) and Henry L. Watson demur to the 9 th subdivision of said answer, stated in folios 9 to 15, inclusive, and assign as a “ground for said demurrer that said answer is insufficient in law upon the face thereof,” which may be taken, perhaps, as a claim that said subdivision does not state facts sufficient, upon the face of the answer, to constitute a controverted claim against the defendants 'demurring.

Briefs have been submitted by the respective attorneys for these contending defendants, and the principal controversy seems to be the right of the demgrrauts to raise this issue of law. If that right is determined in favor of the demurrants, then the next question to be settled is—treating the ninth subdivision as a complaint—does it state facts sufficient, upon its face, to constitute a cause of action; or, treating it as an answer, does it set forth facts sufficient to constitute an affirmative defense?

The first question seems to be the more serious one, and a determination of that point, in uny judgment, will dispose of that issue between the parties. It must now be conceded that the' only forms of pleading in an action are provided for by titles 1 and 2. chapter 6 of the Code of Civil Procedure, beginning with article 1, § 478.

Title 1 provides: “ The consecutive pleadings in an action (are), 1st, complaint; 2d, demurrer; 3d, answer; 4th, reply.” The sections then following provide what these pleadings shall contain, and the manner of framing the issues thereunder.

Title 2, § 518, provides: “This chapter' prescribes the form of pleadings in an action and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law.” It will be seen by a careful examination of the preceding sections that there is no provision made by which a controversy between two or more defendants to the same action may settle their rights therein as between each other. That power is given by § 521, a new provision, amended in 1884, which reads as follows: “ Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defendant who requires such a determination must demand it in his answer, and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not duly appeared therein by attorney. The controversy between the defendants shall not delay a judgment to which the plaintiff is entitled, unless the court otherwise directs.”

In an action for partition § 1543 of the Code of Civil Procedure reads as follows: “ The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant thus controverting the title or interest of a codefendant must comply with § 521 of this act.” This provision is substituted for 2 Revised Statutes, 320, §§ 18 and 19.

It seems clear to me that it was not intended that the issues to be tried between the codefendants are to be raised in any other manner than by answer, or by reply, if a reply is necessary, if, indeed, a reply is permitted.

By a provision of the Code of Civil Procedure a defendant may demur to the plaintiff’s complaint, or to any separate cause of action stated therein, when it appears, upon the face of the complaint, that certain defects therein exist. The plaintiff may also, for certain reasons, demur to the defendant’s answer, or counterclaim, when a defect appears upon the face of the answer, and the defendant may also demur to the reply of the plaintiff.

I have been unable to find any other provision, under the Code, or within the rules of ¡heading prescribed, permitting a demurrer to be served in any action or controversy between codefendants. It cannot be claimed that a demurrer is in any sense an answer. Kelly v. Downing, 42 N. Y. 71.

Both the answer and the demurrer are included in the general term “ pleadings ” as used in the Code of Civil Procedure, but the office of the one is entirely different and distinct from the other. Cashman v. Reynolds, 123 N. Y. 138 ; 56 Hun, 333 ; 33 St. Rep. 70; approving Smith v. Laird, 44 Hun, 530 ; 9 St. Rep. 376, and Wise v. Gessner, 47 Hun, 306 ; 14 St. Rep. 268.

TlieYurrent of authorities seems to hold that the only way to contest or determine the rights of codefendants, as between'themselves, is by the service of an answer under the provisions of the Code cited. 2 Baylies’ Tr. Pr. 7, 8 ; 1 Rumseys’ Pr. 259 ; Albany City Sav. Institution v. Burdick, 87 N. Y. 46 ; Weston v. Stoddard, 137 Id. 119 ; 50 St. Rep. 169 ; 60 Hun, 290; 38 St. Rep. 46.

It seems that the defendants would have the right to settle that controversy, as between themselves, even though the plaintiff in the action should succeed in striking out all of those allegations in the answer as having no reference to, or place in, the controversy with him, under Hagerty v. Andrews, 94 N. Y. 195, which holds that the court has no power to strike out the allegations of a complaint relating to only one of the defendants.

Two things appear to be conditions precedent to enable codefendants to determine such a controversy between themselves in an action against them jointly : "

First. The service of an answer upon the plaintiff in the action, setting forth clearly the rights which he proposes to maintain and settle.

Secondly. The service of that answer upon his codefendant, asserting his right to adjudicate the controversey as between themselves.

This is provided for by § 1543 of the Code. Unless this be done, there seems to be no power to settle the issue. Meigs v. Willis, 5 Civ. Proc. Rep. 106; Smith v. Hilton, 50 Hun, 236; 19 St. Rep. 340 ; Weston v. Stoddard, 60 Hun, 290; 38 St. Rep. 46.; 137 N. Y. 119 ; 50 St. Rep. 169.

The Code of Civil Procedure does not authorize the defendants to add to the case an independent cause of action, disconnected from that stated in the complaint for the purpose of settling the controversy between themselves. Smith v. Hilton, 50 Hun, 236 ; 19 St. Rep. 340; Baylies’ Tr. Pr. 7, 8; 1 Rumscy’s Pr. 259.

If the issue cannot be added to, how can the controversy be defeated by demurrer as to some of the facts set forth in the answer? Why the necessity for a demurrer? -

If the subdivision of the answer complained of does not state facts sufficient to be used as a complaint, or as an affirmative defense, in settling the controversy against the demurrants, that question can be raised upon the trial of.the case; it is one of the rights reserved to the litigant, and may there be used as an undisputed fact. Code Civ. Proc. § 499; Coffin v. Reynolds, 37 N. Y. 640 ; Sanders v. Soutter, 36 St. Rep. 824; 126 N. Y. 193; 37 St. Rep. 193; Wallerstein v. American Security Co., 40 St. Rep. 508; Hoffman v. Wight, 137 N. Y. 621; 51 St. Rep. 199.

This may be done within the rule that a demurrer, or a motion made upon the trial in the place of a demurrer, admits all relative facts which are well pleaded; everything which is not a legal conclusion. Milliken v. W. Union Tel. Co., 110 N. Y. 403; 18 St. Rep. 328 ; Masterson v. Townshend, 123 N. Y., 458 ; 34 St. Rep. 104 ; Johnson v. Golder, 132 N. Y. 116; 43 St. Rep. 487.

Special demurrers as known to the former practice were abrogated by the Code, and no pleading is now demurrable unless it is subject to one or more of thé objections specified in the Code of Civil Procedure, defining the ground of demurrer. Marie v. Garrison, 83 N. Y. 14.

It seems to me, therefore, that the answer must be taken as a whole, not treated as separate and independent defenses, but must be examined for the purpose of seeing -whether the answer so construed is defective, as upon a demurrer to the whole of a complaint. Marie v. Garrison, 83 N. Y. 23 ; Milliken v. W. U Tel. Co., 110 Id. 403; 18 St. Rep. 328 ; Sanders v. Soutter, 126 N. Y. 193; 37 St. Rep. 193; 36 Id. 824.

The text writers on practice seem to construe § § 521 and 1543 of the Code of Civil Procedure as the only means of regulating the practice determining controversies between codefendants, and thus recognize the rule as conferring no new powers on the court, but simply as a regulation of practice in these controversies. Albany City Sav. Institution v. Burdick, 87 N. Y. 46.

That construction is based upon the theory that the controversy between, the defendants is not intended to delay a judgment to which the plaintiff is entitled unless the court otherwise directs. Code Civ. Proc. § 521.

It is not limited to actions of a purely equitable character, Durham v. Lee, 47 N. Y. Supr. Ct. 174.

The section only applies where the controversy between the co-defendants, and the rights to be settled between them, arise out of the subject-matter of the allegations" as stated in the complaint, and are parts of the adjustment of such allegations, and the practice does not permit a new and distinct cause of action, not connected with those allegations, to be brought into the case. Lansing v. Hadsall, 26 Hun, 619 ; Rafferty v. Williams, 34 Id. 544; 1 Rumsey’s Pr. 259 ; Baylies’ Tr. Pr. 7, 8. .

Baylies, writing upon the same subject, says : “When the proper service has been made and the trial had, the judgment rendered may determine the ultimate lights of the parties on the same side as between themselves, and it may grant to a defendant any affirmative relief to which he is entitled.”- Code Civ. Proc. § 1204; Albany City Sav. Institution v. Burdick, 87 N. Y. 46 ; Weston v. Stoddard, 137 Id. 119 ; 50 St. Rep. 169.

If I were less fully convinced as to what the practice is, my inclination still would be to overrule the demurrer and let the general term, with its more extensive expérience and its advantage of united consulation, pass Upon the question, with which decision this court would be better satisfied, as the question needs a final determination.

The demurrer is, therefore, overruled and the defendants are permitted to answer or reply under the rules and practice of this court. Demurrer overruled.


author: Per Curiam

text:
    Peter F. Roland, App’lt, v. Kate Emma Pinckney, as Executrix, etc., Resp’t.

      (New York Superior Court, General Term,

      Filed May, 1894.)

    1. Contract—Counterpart.
    The production of a contract, signed by,only one of the parties, raises no presumption of the existence of a counterpart.
    2. Same—Mutual covenants.
    Mutual covenants constitute the considerations on both sides, and, unless there is an agreement by one, there is no consideration for the covenant of the other, party.
    3. Evidence—§ 829. 1
    The deposition of plaintiff’s assignor, taken before the death of the defendant, is not inadmissible under § 829 of the Code.
    Appeal from judgment dismissing the complaint.
    Action brought against defendant’s testator in his lifetime for breach of contract under seal between him and' one Soelkey, plaintiff’s assignor, by which said Soelkey assigned to the testator the exclusive right to make, use and sell patented cowls and ventilators for the unexpired term of a certain patent, and the latter agreed to introduce these cowls and' ventilators in the territory granted, and to manufacture 1,000 of them within a year from the date of the contract, and to pay a royalty on the 1,000 and all others manufactured by him. On the trial plaintiff produced the contract, signed only by the testator, and offered in evidence the disposition of Soelkey, taken during the lifetime of the testator upon interrogatories and cross-interrogatories, to show that Soelkey mailed to testator letters concerning the contract, and the contents of such letters, which offer of evidence was excluded as inadmissible under1'§ 829 of the Oode.

      Walter J. McCoy, for app’lt; Spink <£ Martin, for resp’t.
   Per Curiam

With respect to the alleged agreement offered as evidence constituting proof of the existence of an agreement between Soelkey and Pinckney, it may be said that no presumption arises from it of the existence of a counterpart. The case of Hughes v. Clarke, 15 Jur. 430, to which reference was madb, is not in point. Formerly each party to an indenture executed a separate deed. That part which was executed by the grantor was called the original and the rest counterparts. It is now, however, ■usual for all parties to execute every part -; hence, a presumption arising from a usual practice to have a counterpart cannot exist here. As the complaint sets forth an agreement under seal as that for the breach of which a recovery is sought, the learned trial judge was right in his ruling when he stated that the mutual covenants constituted the considerations on both sides, and unless there was an agreement by Soelkey there was no consideration for the covenants on the part of Pinckney.

The only error at the trial was in the exclusion of some of the testimony of Soelkey as barred by § 829, Code of Civil Procedure. As the plaintiff may have been prejudiced thereby, there must be a reversal and a new trial. Macdonald v. Woodbury, 30 Hun, 35; Rice v. Motley, 24 id. 143. These cases seem to accord with the reason of the law, and we have concluded to follow them, costs to abide event.

Judgment reversed and new trial ordered, costs to abide event


author: GrXLDERSLEEVE, J.

text:
    Max Danziger, App’lt, v. Charles Falkenberg et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Appeal—Conflicting evidence.
    The general term will not interfere with the verdict, where the evidence is more or less conflicting on all the questions of fact, and they are properly submitted to the jury, if there is sufficient evidence to sustain it.
    Appeal from judgment entered on the verdict of a jury and from an order denying plaintiff’s motion for a new trial.

      Alfred tb Charles Steclder (.Alfred Steclde?-, of counsel), for pl’ffs ; Herman Joseph, for def’t Falkenberg; Louis Cohen, for deft Lederer.
   GrXLDERSLEEVE, J.

The action is brought to recover $1,250, alleged to be due for rent of certain lofts at No. 34 Howard street, in this city, under a lease, or continuation of lease, from plain tiff to defendants. The complaint alleges the making of the lease on the 14th day of December, 1889, and that on February 1st, 1890, the defendants were in possession of the premises, and no part of the-rent has been paid, though overdue, except the sum of $250. The answer alleges that on or about the 4th of January, 1888, the defendants leased from plaintiff all the lofts of the said premises No. 34 Howard street, at an annual rental of $2,600, payable in advance on the first day of the month, in equal monthly payments, and on the 1st of February, 1888, went into possession of the premises under said agreement; that by the terms of said hiring it was agreed that in case the premises so leased should be partially damaged by fire, but not rendered wholly untenantable, the same should be repaired with all proper speed, at the expense of the plaintiff; but in case the damage should be so extensive as to render the premises unten table, the rent should be paid proportion ably to the time of the fire and then cease until the premises were put in good repair; but in case of the destruction of the building, so as to render the rebuilding necessary, the lease should cease and come to an end. The answer further alleges that on or about January 9th, 1889,-the said lease was renewed as to three of the lofts at a rental of $1,500 a year, from February 1st, 1889, to February 1st, 1890, on the same conditions, and on the 14th of December, 1889, the defendants renewed the lease upon the same terms and conditions, for a further period of one year, to commence February 1st, 1890, and to terminate February 1st, 1891, and that defendants continued in possession of the premises under that' last renewal down to March 18th, 1890, when the premises were so injured by fire as to render them untenantable und unfit for occupation, which fire occurred without any fault or negligence on the part of defendants, and the premises remained so and in such condition until they were surrendered by defendants to plaintiff under agreement of surrender. The answer further alleges that in consequence of the fire and the condition in which the building became and was by reason thereof, and before the same had been repaired, the plaintiff requested the defendants to deliver up and surrender the same to the plaintiff, and that the defendants did thereupon vacate, deliver up and surrender the same to the plaintiff, who thereupon accepted and took possession of the same, and ever since has had possession thereof, and that the defendants have not since occupied or had possession of the same. The answer also alleges that defendants have fully paid all the rent due to the plaintiff for the period during which they occupied the premises down to the time of the fire. The case presented four questions of fact to be determined, viz. (1) Did the defendants hold possession of the premises under the agreement alleged by them, containing the fire clause; or was the lease from Feb. 1, 1890, to Feb. 1, 1891, containing no fire clause, a separate and distinct lease from the lease under which they took the premises from February, 1888. (2) Did the fire, which occurred, damage the premises as as to render them untenantable ? (3) Were the premises put in good repair by the plaintiff before the period for which rent is claimed ? (4) Was there a surrender and acceptance of the premises? On all these questions of fact, the evidence is more or less conflicting, and they were properly submitted by the learned trial judge to the jury, who by their verdict found in.favor of defendants. With this conclusion , the general term will not interfere, as there is sufficient evidence to sustain the verdict. There are no exceptions in the case that are of sufficient importance to warrant a reversal of the judgment. The judgment and order appealed from must be affirmed, with costs.


author: McAdam, J.

text:
    Van Buren Denslow, App’lt, v. Sarah M. Bush et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Appeal—Appealable.
    An appeal does not lie from an order sustaining a demurrer to the' complaint, with leave to the plaintiff to amend on payment of costs.
    Appeal by the plaintiff from an order made at special term sustaining a demurrer to the complaint.

      R. H. Griffin, for app’lt; Carter, Hughes & Kellogg, for resp’ts.
   McAdam, J.

The special term judge made an order sustaining the demurrer interposed to the complaint, with leave to the plaintiff to amend on payment of costs. No interlocutory or final judgment has been entered; the appeal is from the order only, and such an appeal will not lie. Cambridge Valley Nat. Bank v. Lynch, 76 N Y. 514; Whitman v. Nichols, 16 Abb. Pr., N. S., 329 ; Lacustrine Fert. Co. v. Lake, etc., Co., 16 Hun, 484; Garner v. Harmony Mills, 6 Abb. N. C. 212 ; 45 N. Y. Supr. Ct. R. 148; Bell v. Sun Co., 1 Mo. Law Bull. 29; Trust & Deposit Co. v. Pratt, 25 Hun, 23, and similar cases. For these reasons, the appeal must be dismissed with costs.

Freedman, P. J. concurs.


text:
    Frank Flandreau, Resp’t, v. Philip Elsworth, App’lt.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Wharf—Oyster barge.
    An oyster barge is a vessel and floating structure within the meaning oí § 798 of the Consolidation Act.
    Appeal by defendant from judgment entered upon a verdict directed in favor of plaintiff, and from order denying defendant’s motion for a new trial.

      David McClure and George A. Black, for app’lt; B. L. Mooney and Charles Blandy, for resp’t.
   McAdam, J.

The plaintiff was lessee or assignee from the Mayor, Aldermen and Commonalty of the city of Hew York of the right to collect wharfage for use of the bulkhead northerly of the approach to pier Ho. 47, Horth River, comprising about three hundred feet, for the term of two years from May 1, 1890, at the annual rental of $10,250. The instrument demised and assigned “all and singular the wharfage which may arise, accrue or become due for the use and occupation, in the manner and at the rates prescribed by law,” of the bulkhead in question; and it furthermore authorized and empowered the plaintiff to recover and receive “such wharfage as may, during the continuance of said term, arise, accrue or become due from the master, owner, factor or agent of any vessel which shall, during the said term, come to, lie at of use the hereinbefore mentioned 'wharf property.” The defendant, an oyster dealer, kept moored to said bulkhead during a portion of the time, to wit, from May 1, 1890, to Hovember 8, 1890, a floating structure known as an oyster barge, which was of 141 tons burden. The action was brought to recover wharfage, pursuant to the terms of the Consolidation Act, from the defendant for such use of said bolichead as the rates therein prescribed or for the reasonable value of the use of said bulkhead. The facts appear to be undisputed, and the main contention at the trial was as to the proper construction of § 798 of the Consolidation Act, regulating the rates and collection of wharfage. The trial judge directed a verdict in favor of the plaintiff for $1,312.91, and from the judgment entered upon such direction, and from the order denying a motion for a new trial, the appeal is taken. The Consolidation Act, § 798, provides as follows: “It shall be lawful to charge and receive, within the city of Hew York, wharfage and dockage at the following rates, namely: From every vessel that uses or makes fast to any pier, wharf, or bulk-. head within said city * * * for every day, or part of day, * ">■ * as follows: From every vessel of two hundred tons burden and under, two cents per ton, * * * except that, save as hereinafter provided, vessels known as North river barges, market boats and barges, sloops employed upon the rivers and waters of this state, and schooners exclusively employed upon the rivers and waters of this state, shall pay,” etc., * * * “and the class of sailing vessels now known as lighters, shall be at one-half the first above rates, * '* * and from every vessel or floating structure, other than those above named, or used for transportation of freight or passengers, double the first above rates, except that floating grain elevators shall pay one-half the first above rates." The question involved is, whether under those provisions the barge used' by the defendant was a vessel or floating structure upon which wharfage can be claimed and collected. The structure was certainly not what is commonly designated as a dwelling or a house, and the occupant would not ordinarily be deemed a tenant within the acceptation of that term. Nor would the city or the plaintiff as its assignee be regarded as the landlord thereof. True, it was not a vessel intended to navigate the rivers of the state, and could not receive a registered tonnage; but, nevertheless, like other barges, it might be taken in tow and removed from one place to another. It must for the purposes of this case be regarded as a vessel and floating structure within the meaning of the statute in reference to wharfage. The statute relied on by the plaintiff was evidently intended to regulate the entire subject of wharfage in the city.of New York, and to cover and include every class of floating structures. There is certainly nothing to indicate a design to exempt from its operation, oyster or other barges, moored to and occupying part of the bulkheads belonging to the city, and the statute must receive that interpretation which will give effect to the legislative purpose and intent, having in view the state of facts it was designed to meet. Hudson Iron Co. v. Alger, 54 N. Y. 173; Sedgwick on Statutes, 2d Ed. Pomeroy’s Notes, 194, 195. The answer of the defendant does not allege that it was a permanent structure, but one “moored ” to the bulkhead,—a term which means, “ to fix or secure, as a vessel, in a particular place by casting anchor or by fastening with cables or chains; as ‘they moored the boat to the wharf.’ ” Webster’s *Dic. The entrance to the barge was by means of a gang plank extending from the dock. There being no registered tonnage for such structures, the tonnage was proved by expert evidence, and, applying to it the statutory rate, the plaintiff was entitled under the statute aforesaid to the amount which he recovered. The alleged failure to print on the back of bills presented for wharfage § 798 of the Consolidation Act, as required by § 802 thereof, was not pleaded in the answer, was not an issue at the trial, and the effect of it need not be now discussed. Other objections urged at the trial are for the same reason unavailing. Defendant’s counsel moved to dismiss the complaint. Upon the denial of that motion he requested the court to direct a verdict for the defendant, and, this motion having been denied, asked to go to the jury upon the questions of fact arising on the evidence, without specifying any fact as to which there was any dispute. As there appeared to be no conflict, the court properly granted the plaintiff’s motion and directed a verdict in his favor.

The judgment is right, and, with the order denying motion for a new trial, must be affirmed, with costs.

Freedman, J., concurs.


author: Gildersleeve, J.

text:
    The Gansevoort Freezing and Cold Storage Company, App’lt, v. The Wessels Company, Resp’t.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Appeal—Conflicting evidence.
    It is the province of the jury to weigh and decide, where the testimony, hearing upon the facts, raises a fair conflict of evidence, and the issues are presented to the jury hy a fair and, on the whole, correct charge.
    ApPEAL from judgment entered on verdict of a jury, and from and order denying motion' for new trial.

      M. S. é I. S. Isaacs (Julius J. Frank, of counsel), for app’lt; Charles F. Hill, for resp’t.
   Gildersleeve, J.

This is an appeal from a judgment for $990.77 entered on the verdict of a jury, in favor of the defendant against the plaintiff on a counterclaim, and from an order denying a motion for new trial. The defendant delivered to plaintiff, for storage, a number of boxes of oranges, which, according to the defendant’s claim, the plaintiff agreed to keep, in store at a temperature of 38 degrees, or from 34 to 36 degrees.

No contention arises over the number of boxes of oranges delivered to the plaintiff and returned to the defendant, nor is there any dispute as to the price per box for storage. At the trial, plaintiff’s cause of action was conceded, subject to defendant’s counterclaim. The affirmative of the issue was assumed by the defendant and it undertook, for the purpose of sustaining the counterclaim, to establish the following facts: (1) That the oranges were in good condition when delivered to plaintiff. (2) That when taken from plaintiff’s warehouse, and received by defendant, while some of the oranges were in good condition, many of them were more or less damaged, and some had become entirely unfit for market, and were a total loss. (3) That the proximate cause of this damage was the failure of the plaintiff to perforin its contract to keep the oranges in store at the agreed temperature. On these questions there was some conflict of evidence, and especially as to the ast alleged fact. It must be said that the testimony bearing upon these alleged facts raised a fair conflict of evidence, which it was the province of the jury to weigh and decide. The jury were warranted m finding, as they did, that the plaintiff failed to keep its contract, and that damage resulted therefrom. The amount of the damage was not shown as sharply and definitely, and with as much exactness and certainty as is desirable. A more precise and detailed examination of the defendant’s witnesses on this branch of the case would have given the jury an easier task. But, the amount of damage may, nevertheless, be said to be established by a fair preponderance of evidence. The learned judge presiding at the trial, from figures handed up by the counsel on both sides, stated to the jury, without -objection or exception, thatplaintiff claims $459.50, and, in opposition to that, the defendant claims that there is owing to him $1,121.82.” It must be assumed that these were the maximum claims of the respective parties, with interest added. As we have already said, the plaintiff’s claim was conceded; the verdict therefore should have been for the difference between the two amounts named, to wit: the sum of $662.32. Since the verdict was for $80Q, it follows that the judgment should be reduced by deducting therefrom the sum of $137.68. „The court laid down the correct rule as to the measure of damages. We are of opinion that the issues were presented to the jury by a fair, and, on the whole, correct charge. There is no error in the admission or exclusion of evidence that calls for reversal

The judgment and order must therefore be reversed, and a new trial ordered, with costs to . appellant to abide the event, unless the respondent stipulates to reduce the recovery by deducting therefrom the sum of $137.68 ; in which case the judgment as modified will be affirmed, but without costs to either party.


author: By the Court.

text:
    Lucius B. Hutchinson, Resp’t, v. The President and Directors of the Manhattan Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Bills and notes—Collection—Credit.
    Where a collecting agent deposits a check belonging to his'principal with a bank, it has not the right arbitrarily,to credit the proceeds on a past due obligation of the agent on the ground that he was a depositor with it.
    Appeal by defendant from judgment entered on report of referee in favor of plaintiff.

      Storn & Rushmore, for app’lts ; John L. Branch, for resp’t.
   By the Court.

The check was drawn upon a Massachusetts bank, and deposited for collection by W. L. Patton & Co., who had undertaken its collection for the plaintiff. The check belonged to the plaintiff, and the proceeds when collected were his. McBride v. Farmers' Bank, 26 N. Y. 450. There is nothing in the recent case of the Goshen Nat. Bank v. State, 141 N. Y. 379; 57 St. Rep. 597; 36 N. E. R. 316, nor in Justh v. Nat. Bank, 56 N. Y. 478 ; Stephens v. Board, 70 N. Y. 185, 187; Southwick v. First Nat. Bank, 84 N. Y. 420, 436, 437, which sustains the defendant’s contention that it had the right arbitrarily to credit the plaintiff’s money on the past due obligations of W. L. Patton & Co. because that firm was a depositor with it. In those cases both the party delivering and the one receiving the money or check acted with the avowed and understood purpose of discharging the pre existing obligation; and their mutual intention having been effectuated by the necessary acts, the court held that the title passed and the money had been lawfully applied.' Those controlling features are not only significantly absent here, but contrary intentions appear. The arbitrary application of the plaintiff’s money was not only repugnant to the trust upon which Patton & Co. and the defendant received the check, but contrary to the proclaimed intention of all the other parties in interest. There was no implied authority in the defendant to make the appropriation, and no equitable rule of-conduct, estoppel or set-off which gave it title to the money of the plaintiff against the will of those having the jus disponendi, particularly where it appears, as it does here, that the defendant gave nothing for the money, and its former position will not be changed if required to give it up. For these reasons and those assigned by the learned referee, the judgment appealed from must be affirmed, with costs.

All concur.


text:
    Emma L. Jacquelin et al., App’lts, v. The Manhattan Railway Company et al., Resp’ts. Sarah E. Youmans et al., App’lts, v. The Manhattan Railway Company et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Railroads—Elevated—Injunction.
    In an action against an elevated railway for an injunction and damages, the court has power, in its discretion, to suspend the operation of the injunction, in case of proof that condemnation proceedings have been insti- - tuted, for the purpose of acquiring the easements, without unreasonable delay and prosecuted with reasonable diligence.
    Appeals from orders suspending the operation of the injunction in each of these cases for three months from May 6, 1894.

      Forster & Speir, for app’lts; Davies, Short & Townsend, for resp’ts.
   McAdam, J.

The actions were brought by abutting owners to enjoin the operation and maintenance of the defendant’s elevated railroad in front of the plaintiffs’ property on the Bowery. It appears that on November 1, 1893, injunctions were granted restraining the operation and maintenance of the elevated railroad, unless the defendants, within six months from that date, acquired title to the easements in front of the plaintiffs’ property, either by purchase or due process of law.”

The defendants, upon affidavits showing that condemnation proceedings had been instituted for the purpose of acquiring the easements, applied at special term to suspend the operation of the injunctions until such proceedings could be completed. The court granted the applications by suspending the operation of the injunctions for three months from May 6, 1894, and the appeals are from these orders. The court below had the power to grant the orders, and the only question ,is, whether the discretion exercised in granting them was abused. Where applications of this kind are made the applicants should show that condemnation proceedings were commenced without unreasonable delay, and were pros-edited with reasonable diligence. It will not do to wait until the time allowed is about to expire and then commence proceedings, and complain of the shortness'of the time allowed to consummate them. This does not prove diligence, but the want of it; for no time, however long, would be sufficient if allowed to pass unused in such manner. But where it appears that there has been no unnecessary delay in instituting and prosecuting the condemnation proceedings, and, that without fault on their part, the defendants are unable to complete them within the period fixed, the court may, in the exercise of its discretion, grant such further time as may be necessary for the purpose. The defendants in the present cases furnished reasons for the delays that necessitated the applications, and, while not quite satisfactory, the excuses offered sufficiently called for the exercise of the court’s discretion, and in exercising it, the defendants were required to file stipulations that they would not apply for any further extensions. The discretion was not abused and the orders must be affirmed, but without costs.

Breedman, P. J., concurs.


author: Gtldersleeve, J.

text:
    Mary G. Krulder, as Administratrix, etc., Resp’t, v. William H. Woolverton, as President, etc., App’lt.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    1. Appeal—Charge.
    An instruction, which is equivalent to. saying to the jury that, if they believed that the injured party thought there was no danger, then there was no negligence, lays down an erroneous rule.
    2. Same—Harmless error.
    In case of an erroneous charge, the respondent, in order to sustain the verdict, must show that the error did not affect, and could not have affected, it.
    Appeal from judgment entered on verdict of a jury, and from order denying motion for a new trial.

      Edgar Whitlock, for pl’ff; Lockwood & Hill (John Lj. Hill, of counsel), for def’t. >'
   Gtldersleeve, J.

The plaintiff brought this action to recover the statutory amount for injuries resulting in the death of her husband, Cornelius Krulder, by reason of the alleged negligent act of defendant’s servant. The trial resulted in a verdict for the plaintiff. The accident happened under the following circumstances: Krulder, by direction of one James B. Carpenter, his employer, went to the ferry-house, at the foot of Liberty street, in this city, to put shades under the skylights there. While at work on the top of a step-ladder, sixteen feet high, putting a shade in the skylight over the team gangway, the base of the ladder was hit by a piece of scenery on;a hand truck, drawn by one Reilly, defendant’s servant, and Krulder was precipated to the floor, and died the following day from his injuries. Krulder was warned by the ferry-master that in undertaking to put up the shades without help, he was endangering his own life and that of the passengers. There were two important questions to be-determined by the jury, viz.: (1) Had the plaintiff met the burden which- the law imposed upon her of satisfying the jury by a fair preponderance of creditable testimony that the deceased did not contribute to the accident by his own negligence? and (2) Had the plaintiff shown that the accident was due to the negligence of defendant’s servant? If it was a dangerous act, under the circumstances, for Krulder to mount the step-ladder in such a place, for the purpose of doing the work, and such act contributed to the accident, the plaintiff’s claim was thereby defeated. The principal assignment of error by the learned counsel for appellant arises on an exception to a portion of the charge of the learned trial j udge on this branch, of the case. It is the only question in the case that calls for discussion; and aside from it, the judgment stands practically unchallenged. The negligence of the deceased was a vital question in the case. It was the province of the jury to determine from the facts whether the act of Krulder was negligent, or not. The exact language of the trial judge, to which exception is taken, and which, 'it is claimed, constitutes an error calling for a reversal, is as follows: “ But if, as a sober-minded man, he thought there was no danger, it would not he negligence.’' In this connection, and before using the language in question, the learned trial judge said to the jury: “Krulder was not bound by what Wertz (the ferry-master) said. It was information from an intelligent man. But Krulder could judge for himself. Krulder could say:—that is, he had a right to say,— “'Well, there is no danger from wagons way off here, and there is no danger from anything else that I .can see, if they use proper dilligence; and if any one comes along here and runs into me, they must do it purposely.” And he could.take that, using his sense, and look at that, in connection with all the facts of the case; and if what he saw and what he heard was calculated to produce upon the mind of a man of ordinary intelligence, such as Krulder is supposed to have been, the belief that it was dangerous, then there was negligence on his part.” Then follows the language to which exception was taken. The instruction that is the subject of the exception, when taken by itself, and not considered in connection with other portions of the charge,—by which the jury were correctly instructed upon this branch of the case, to wit, the alleged contributory negligence of the deceased,—left the whole case to depend upon the judgment of the deceased. If the jury determined that Krulder was a sober-minded man, the case turned upon what Krulder thought about the situation in respect to danger. The instruction was equivalent to saying to the jury" that if they believed that Krulder thought there was no danger, then there was no negligence. It laid down an erroneous rule for the guidance of the jury. When considered in connection with the sentence above quoted, used by che learned trial judge: “ But Krulder could judge for himself,” it must be said that it is not only possible, but highly probable, that the defendant was injured by this error, or at least prejudiced to some extent. While, as we have said, there are portions of the charge containing correct instructions to the jury on this point, still it cannot be said that the jury were not misled by the language of the trial judge, to which exception is taken, making the case depend upon what the deceased thought o£ the act in which he was engaged. In Greene v. White, 37 N. Y. 405, this rule is laid down: “ If it is possible that the defendant was injured by this error, the verdict must be set aside. It is not for the defendant to show how otto what extent he was prejudiced. The existence of the error establishes his claim fo relief. If the plaintiffs'wish to sustain the verdict, it is for them to show that the error did not and could not have affected it.” After a careful consideration of the whole" charge, we are not warranted in saying that the error was cured by the general charge. In Phillips v. N. Y. C. & H. R. R. Co., 127 N. Y. 657, the court of appeals say : “ But erroneous instructions can be effectually cured- by their withdrawal, in terms so explicit and unequivocal as to preclude the inference that the jury may have been influenced by them.”

In People v. Hill, 65 Hun, 420; 47 St. Rep. 777, the rule is thus stated: “The charge being erroneous, we cannot say that: thé defendant was not possibly injured or prejudiced by the error, although the court correctly instructed the jury upon the question in other parts of the charge.” See also Leonard v. Collins, 70 N. Y. 90-94; Whitten v. Fitzwater, 129 N. Y. 626 -629; 41 St. Rep. 379.

The judgment and order apppealed from must be reversed, and a new trial granted, -with costs to abide the event.


author: Mo Adam, J.

text:
    William G. McCrea, Resp’t, v. Arthur G. Bedell, App’lt.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Pleading—Peoov.
    Where an action is founded on a statutory enactment which, at the time of the suit brought, had no legal force or vitality, a recovery cannot be had under another statute passed two years subsequently and known by another chapter.
    Motion by defendant for judgment on dismissal of complaint, where the exceptions were ordered to be heard* in the first instance at general term.

      W. L. McCorlde, for def’t and motion; Thos. J. Rush, for pl’ff, opposed.
   Mo Adam, J.

The plaintiff, as owner of more than five per cent, of the capital stock of the North Side Publishing Company, a corporation organized under the laws of the state of New York, sued the defendant, as treasurer of said corporation, to recover $450 as penalties for failing to furnish the plaintiff with a statement of the affairs of the corporation, agreeably to the statute, after demand made "therefor. The plaintiff declared upon § 52 of chapter 564 of the Laws of 1890, which requires the treasurer of such a corporation to furnish a statement within “ twenty days after service of a written demand. The purpose of the provision requiring a detailed account of the assets and liabilities of the company, is to enable the stockholders to appreciate the value of the shares of the stock held by him, from the financial standing of the company. French v. McMillen, 43 Hun, 188. The action was commenced July 30, 1892, and at that time § 52 of chapter 564 of the Laws of 1890, had been superseded by a new act which went into effect May 18, 1892. See L. 1892, ch. 688, § 52. The default sued for occurred in June, 1892, after the new act had become inoperative. The complaint alleges that, although more than “ twenty ” days had elapsed since the service of the demand, the defendant failed to comply therewith “ and with the statute aforesaid,” i. e., the act of 1890 before referred to. Section 52 of the new act is a substantial re-enactment of the same section of the former statute, except that it allows the treasurer “ thirty ” instead of “ twenty ” days within which to comply with the requirements of the demand. At the trial the defendant, among other objections to the complaint, insisted that it was defective in not requiring a “ sworn ” statement as provided by the act; and, also, that the complaint did not allege a failure to comply with the demand within “thirty days” according to the act of 1892, supra. We hold that the demand was sufficient, as the failure to require a sworn statement, (which was intended for the security of the stockholder demanding it), was, at most, a waiver on the part of the plaintiff of the verification he was authorized to demand. The real difficulty seems to be, that the plaintiff founded his action on a statutory enactment which at the time of suit brought had no legal force or vitality. The action is highly penal, and is without any authority other than that furnished by the act of 1892, the existence of which must have been unknown to the plaintiff, or he would not have based his right of recovery upon the act of 1890, which had ceased to exist prior to the bringing of his suit. The plaintiff treated the act of 1890 as a private statute, and under § 530 of the Code designated it by its chapter and year of passage.” To recover under another statute passed two years subsequently, and known by another chapter,- would be a fatal variance between the allegation and the proof. This must be so,' because the statute is the sole authority for the action. The objection may be technical, but it was pointed out in time to enable the plaintiff to move to amend, which might have been permitted on terms which could not have misled the defendant to his prejudice. Besides, the action, being penal in its character, is controlled by a stricter rule than' that applied in ordinary actions. See Whitney v. Cammann, 137 N. Y., at p. 344; 50 St. Rep. 644. Ho motion to amend appears to have been made, and the court below, as it lawfully might, applied the strict rule of interpretation to the plaintiff’s pleading. Ho error was committed in so doing. For these reasons the exceptions must be overruled, and the defendant's motion for judgment on the dismissal granted, with costs.

Freedman, P. J., concurs.


text:
    Frank H. Martin, App’lt, v. Edward Bronsveld, Resp’t.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    1. Appeal—Errors committed on trial.
    The appropriate method of reviewing errors committed on the trial, in case of the dismissal of the complaint, is by appeal from the judgment entered on the dismissal, and not by motion at special term.
    3. Same—Case.
    Where the alleged errors do not appear upon the record, a case should be made and settled according to prescribed practice.
    8. Same—Irregularity.
    A dismissal of the complaint where, under no phase of the case a •recovery can be had under the pleadings, does not constitute an irregu ■ larity.
    Appeal from order refusing to set aside nonsuit, or to allow an exception to plaintiff.

      George A. Black, for app’lt; A. J. Westermayr, for resp’t.
   McAdam, J.

The complaint was dismissed after a trial of the issues before a jury, and the appropriate method of reviewing errors committed on the trial is by appeal from the judgment entered on the dismissal. The alleged errors not appearing upon the record, a case should have been made and settled according to prescribed practice, that the general term might be properly informed of all that occurred upon the trial—what proofs were received and rejected thereat, what rulings were made, and what exceptions were taken. Code, § 997. The matters urged against the non-suit cannot be presented upon mere motion at special term to set aside the direction, as was done here. True, § 998 of the Code provides that it is not necessary to make a case for the .purpose of moving for a new trial “ upon an allegation of irregularity.” But the real ground upon which we are called to review the action of the trial judge is not for an irregularity in practice, within the proper meaning of the term,, but substantial error committed at the trial, which must appear in and by a case settled by the trial judge.

The plaintiff claims that the trial judge dismissed the plaintiff’s complaint before he had concluded his proof. If it was apparent to the trial judge that under no phase of the case could a recovery be had under the pleadings, he had the right of his own motion to so dismiss the complaint, and such a dismissal does not constitute an irregularity If it was not such a case, the fact should be made to appear, not' by affidavits upon mere motion, but on appeal in the manner prescribed by § 997 of the Code. If a trial judge finally disposes of a cause pending before him, by directing the only result that could properly be reached, it is of no consequence whether the disposition made was .of his own motion or at the request of counsel. For failure to observe the practice laid down, the appeal must be dismissed, with costs, but without prejudice to the plaintiff’s rights to review the action of the trial court upon compliance with prescribed practice.

Gtldersleeve, J., concurs.


text:
    Frank H. Martin, App’lt, v. Edward Bronsveld, Resp’t.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Judgment—Postea,
    The specific grounds or reasons for the dismissal of the complaint are not required to appear by the postea.

    Appeal by plaintiff from order refusing to amend judgment

      Qeo.A.BlacTc, for app’lt; A. J. Westermayr, for resp’t.
   By the Court.

The application below was substantially for a direction to the clerk to amend the postea forming part of the judgment roll by stating therein, that the complaint was dismissed “ on the ground that it did not state facts sufficient to constitute a cause of action.” The trial judge heard the application and denied the motion, stating in an opinion filed by him that the complaint was not dismissed for insufficiency, but upon the proofs. For this and the further reason that the specific grounds or reasons for the dismissal are not required to appear by the postea, the order appealed from was properly made. There is nothing in the postea declaring that the dismissal was “ on the merits,” nor does anything appear by the record which bars another action, or in any manner prejudices the plaintiff. It follows that the order must be affirmed, with costs.


text:
    Otto G. Mayer et al., App’lts, v. Eben J. Beggs et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed June, 1894)

    1, Sale—Title.
    Parties can agree that title shall pass without delivery.
    2. Same—Construction.
    The words in a contract of sale, “To be received ex steamér when ready to discharge,” mean that the burden of securing the act of delivery is to fall upon the purchaser.
    8. Same—When complete.
    Where a certain number of articles or fixed 'quantity of goods are sold from an ascertained lot, identical in kind and value, a separation or measurement is not essential 'to transfer title, in case such is the intention of the parties.
    Motion by plaintiffs for judgment upon a verdict directed in their favor; exceptions to be heard in the first instance at general term.

      J. Hampden Dougherty, for pl’ffs; Wm. H. Sweney and Roger Foster, for def’ts.
   McAdam, J.

This action was to recover §2,711.73, the price of one hundred tons of sulphur sold by the' plaintiffs to the defendants, September 7, 1891. . The contract, as evidenced by the bought and sold notes, provides for the sale and purchase of “one hundred tons of the best unmixed seconds brimstone, .in good, order and condition, in bulk, for shipment by steamer from Sicily during all past month of August, at $27.37^ in United States gold coin or its equivalent, per.ton of 2240 pounds, actual weight ex ship. Cash on delivery. To be delivered ex steamer when ready to discharge. The steamer Iniziativa arrived at the Port of New York, October 3, 1891, with about one thousand tons of sulphur for the plaintiffs, all of the same kind and quality. Upon its arrival the plaintiffs sent the broker an or<3er upon the steamship for the amount sold to the defendants. The order provided for the delivery of one hundred tons seconds brimstone in holds 2 and 3, and named as weighers P. Allen & Sons, 39 South street. The delivery order was indorsed by the broker to the defendants, who in turn indorsed it over to their lightermen, P. W, Jarvis & Company. The lightermén sent the lighter Overton to the dock where the steamer was moored, and- presented the order. The order was accepted by the steamship company, and transfer of the sulpher to the lighter was begun on the afternoon of October 7, 1891. The sulphur was weighed by one of the employes of P. Allen & Sons; it was hoisted from the hold of the steamer to its dock and discharged into a hopper with a scale attachment, and was there weighed and discharged into the. lighter through a chute. The weigher was a sworn official, and represented both buyers and sellers. There was discharged into the lighter during the afternoon some thirty-five tons of sulpher. Work was discontinued at about half-past five in the evening, and resumed thereafter; so that delivery was completed at about half-past nine o’clock that night. Some time during the night the lighter capsized and sank, with the sulphur aboard. By our construction of the contract there was no obligation, on the part of the sellers to make any other or different delivery from that made. By the terms of the contract the buyers were to receive the sulpher out of the steamer when she was ready to discharge ; that is to say, upon receipt of the requisite delivery order and its acceptance by the steamship title passed, and the buyers had the obligation of securing the actual possession of the sulpher. Upon this principle the court below directed a verdict for the plaintiffs for the amount of their claim with interest, and directed the exceptions to be heard in the first instance at general term. Parties can agree that title shall pass without delivery, and the words, “To be received ex steamer when ready to discharge” mean that the burden of securing the act of delivery was to fall upon the buyers; that the sellers were merely to put the buyers in possession of the means of obtaining the goods; and this they did, not merely by the delivery of the order for the goods, but,by its acceptance by the steamer. If the steamer had declined to recognize and accept the order, a different question might have arisen. The effect of this acceptance amounted to acknowledgment that the steamer held the sulpher subject to the order of the buyers, and in this manner it was placed under their control and, for legal purposes, in their custody. This was the evident intention of the parties, and must control. 'Under this construction the question of the steamer’s negligence need not be discussed.

Where a certain number"of articles or fixed quantity of goods are sold from an ascertained lot, identical in kind and value, 'a separation or measurement is not always essential to transfer title, Benjamin on Sales, Corbin’s notes, Sec. 477 ; and see Kimberly v. Patchin, 19 N. Y. 330 ; Terry v. Wheeler, 25 N. Y. 520 ; Russell v. Carrington, 42 N. Y. 118; Bradley v. Wheeler, 44 N. Y 495, Hayden v. Demets, 53 N. Y. 426; Burrows v. Whitaker, 71 N.Y. 291; Sewell v. Eaton, 70 Am. Decis. 471. Although the one hundred tons of sulphur in this case were to have been weighed and separated from the bulk before the buyers received it, title, nevertheless, passed before that act was done ; for such is the rule where it is plain from the contract that that was the intention of the authorities (vide authorities before cited.) Upon this construction of the contract the defendants, the buyers, received their property, and the vendors were absolved from all responsibility for its future safety. The defendants claim that there was a shortage in the delivery ; but the deficit was small, and there is no proof that the plaintiffs wilfully or intentionally made a short delivery; so that if the weigher failed to weigh out the full quantity it was evidently the result of accident, for which a deduction might have been but was not claimed. These views render it unnecessary to consider other questions raiséd, and requires that the exceptions be overruled, and that the plaintiffs have judgment upon the verdict directed in their favor, with costs.

Freedman, J., concurs.


text:
    John J. Montgomery et al., App’lts, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    Contract—Provision for inspection.
    Under a provision in a contract for the appointment of an inspector by the city, with power to reject materials furnished and work done, which do not comply with the terms of the agreement, any loss or damage to the contractors following therefrom, arises out of the nature of the work and constitutes such loss or damage as the terms of the contract call upon the contractors to sustain.
    Appeal from so much of a judgment rendered at trial term, as dismisses the second causo of action of the complaint.

      Kellogg, Rose & Smith (L. L. Kellogg, of counsel), for pl’ffs; William H. Clark (Edward II. Hawke, Jr., of counsel), for def’ts.
   Gtldersleeve, J.

The plaintiffs, as co-partners, entered into a contract with the defendants for constructing a sewer and appurtenances in East 152d street. This action was brought Lo re cover upon two causes of action alleged by the plaintiffs to arise under the contracts mentioned. Under the direction of the court the plaintiffs recovered their claim under the first cause of action. There is no appeal from this portion of the judgment by either of the parties. The learned trial court dismissed the complaint as to the second cause of action, and the judgment having been entered, accordingly, the plaintiffs have appealed to the general term from so much of the judgment as dismissed the complaint as to the second cause of action. The plaintiffs by their alleged cause of action under consideration seek to recover $9,050 for damages and increased cost occasioned by defendants and their agents in delaying the work, causing the same to be performed at a disadvantage, and by refusing to permit the plaintiffs to use, in the work, materials corresponding to the plans and specifications. The complaint sets forth the clause in the contract requiring that the material and labor should be furnished strictly m conformance with the plans and specifications annexed to the contract and on file in the department of public parks, charged with the'carrying on of the work. It alleges the appointment by the defendants of an inspector to inspect the materials furnished under the contracts. It alleges further that defendants and their agents, particularly the inspector, would not permit the plaintiffs to use the materials which were in exact accordance wit°h the plans and specifications, and that by the said action, the work was delayed and the cost of the labor was increased, that concrete, prepared for use, was entirely lost, sand was lost, and plank were broken and destroyed. It alleges that in this way the cost of the work was largely increased, and that plaintiffs suffered great loss and damage. The defendants by their answer to this cause of action admit the appointment of the inspector, set up in the different clauses of the contract, and deny, on information and belief, all the other allegations set up in the second cause of action in the complaint. The bulk of damages which the plaintiffs seek to recover under this cause of action was occasioned, as the plaintiffs allege, by the hindering and impeding of the work through the improper and unwarranted rejection by the inspector, appointed by defendants, of pipe furnished by the plaintiffs, as plaintiffs claim, in strict conformity with the terms of the contract. It is conceded (1) that this contract has been faithfully and completely performed by the plaintiffs; (2) that this completion and performance has been duly certified to by all the officers charged with that duty under the contract; (3) that the work has been accepted, andmis now in use by the city of Hew York. The plaintiffs have been paid in full at the stipulated price for all work done and all materials furnished. The contract did not provide for certain work to be done for a certain lump sum. There were twelve classes or kinds of work to be done and materials to be furnished, and for each particular class or kind of work to be done arid materials to be furnished a certain price was specified in the contract to be paid to the plaintiffs. There is no allegation in the complaint impeaching the good faith and honest purpose of the engineer in making the final certificate. Ho question is presented as to the amount of the work done and materials furnished. The final certificate of the engineer as to the amount of work done and materials furnished, under the contract, is accepted by plaintiffs as .binding and conclusive. It is not attacked. The certificate was correct. It did state correctly the amount of work done and materials furnished. There was no extra work done or extra materials furnished. The plaintiffs’ claim for damages, now being considered, rests upon the averment that defendants’ inspector unreasonably rejected pipes, and was unreasonably particular in testing them, whereby the work was hindered and delayed to the plaintiffs’ injury. It is the contention of defendants that the extra expense which plaintiffs allege they incurred by reason of the delay caused by the rejection of pipe by the inspector cannot be charged against the defendants, because this was a risk incidental to the execution of the contract. The rule applied by the learned trial court,' which relieved the defendants of any liability upon the grounds under consideration, was laid down in the following language: “ I am, therefore, of opinion that even if in the present case the defendants caused delay in the final performance of the contract by being unreasonably particular in accepting the pipe that was offered, because the right of rejection of unsuitable material existed, such conduct is available to the plaintiffs only to the extent that they should not be charged with overtime directly and naturally resulting from such conduct on the part of defendants.” The court having announced that the complaint as to the second cause of action must be dismissed, for the reasons stated, the learned counsel for plaintiffs asked to submit to the jury all the elements and facts offered to prove the second cause of action, i. e., (1) as to whether the inspector did or did not reject materials furnished and work done under the agreements that did correspond to the plans and specifications; (2) as to whether the plaintiffs did not suffer damages and were occasioned increased cost by the unlawful acts of the defendants’ agents and officers in refusing to allow the plaintiffs to use the materials furnished which did correspond to the specifications and plans. And plaintiffs asked to go to the jury upon all the other facts in the case. To the denial of this request an exception was duly taken. The recovery here asked for is, we repeat, not for the amount of materials or work done, but damages for the increased cost of the same work, paid for in accordance with the terms of the contract, made more expensive by the wrongful acts of the defendants. If the alleged wrongful acts can be said tó be a risk incidental to the execution of the contract, and only available to plaintiffs to defeat a claim of defendants for overtime in the performance of the work, the judgment must be affirmed. As to the character of the pipe furnished and the question of its conformance with ,the plans and specifications, which constitute a part of the contract, there is a fair conflict of evidence which it was the province of the jury to weigh and decide, provided the allegations of the complaint, if established, fastened a liability upon the defendants. Under the contract, the commissioners of public works were authorized' to appoint such person or persons as they might deem proper to inspect the materials furnished and the work done. It was the duty of the person or persons, so appointed to inspect, to judge'whether the materials furnished by the contractors were according to the specifications contained in the contract. If, in the judgment of the inspector, they were not, it was his duty to reject them. The specifications, which, as we have said, constitute a part of the contract, contained, among others, the following clause: “All the materials furnished and all’the work done which, in the opinion of the said commissioners of the department of public parks, shall not be in accordance with these specifications, shall be immediately removed and other materials furnished and work done that shall be in accordance therewith. (Specifications i i.) The inspector, whom the commissioners appointed, for the purposes of determining the character of the materials furnished by the contractors was the alter ego of the commissioners of public parks. The submission by the contractors of the materials for the opinion of the inspector was an incident “ arising out of the nature of the work,” which the terms of the contract contemplated and which could be readily foreseen. We may say it was an obligation imposed upon the contractors by the terms of the contract. It was as plain a duty and one of as much importance as any created by the agreement and assumed by the plaintiffs. A difference of opinion between the contractors and the commissioners of public parks, or their duly authorized representative, as to the character of materials furnished and as to whether they were or were not in strict conformity with the materials called for by the specifications was not an improbable incident, but one likely to be encountered in the prosecution of the work. Any loss or damage to the contractors flowing therefrom must be said to arise “ out of the nature of the work,” and to constitute such loss or damage as the terms of the contract call upon the contractors, to sustain. Specifications f f. The contractors submitted unwillingly to the interference and hinderance that' form the subject of complaint, and continued the work to’ its full completion and to the satisfaction of the commissioners of public parks, who represented the defendants. The rejection of materials by defendants might, in some cases, be so unreasonable, unwarranted and persistent as to be tantamount to a breach of the contract by defendants, for which, perhaps, a rescission by the other party to the contract might be justified. If plaintiffs suffered a substantial wrong of the character claimed? this may have been the proper course for them to pursue. But that question is not before us, and need not be decided here.

The acts of rejection, though they brought about the delay and hinderance which caused the alleged damage here sought to be recovered, are not, under the facts of this case, such wrongful acts or mistakes ‘of the defendants as afford a basis for the recovery of damages.

The learned counsel for appellant insists that plaintiffs’ claim for damages herein finds support in the principles laid down and recognized in the cases of Mulholland v. The Mayor, 118 N. Y. 631; 22 St. Rep. 347; Pennell v. The Mayor, 59 N. Y. Supr. Ct. 279; 39 St. Rep. 145, and Newell v. The Mayor, 61 Hun, 356; 40 St. Rep. 727. We will examine these cases successively.

In the MulhoTland case, wrong grades had been given by competent men in authority and by that error additional work was rendered necessary, which was not within the original contract work or the original plan. It was held that the contractor should recover the entire increased cost of the work, and was not limited to the contract prices. In the case at bar, there were no changes or modifications in the plans and specifications, and no work was done by plaintiffs other than the work required by the performanee of the contract. We see no analogy between the two cases.

In the Pennell case, the action arose out of a contract made for clearing wood and brush from land that was to be flooded by the building of certain dams. While the plaintiffs were engaged in the work, and before the time of its completion under the contract had expired, through the act and fault of defendants, the ground became flooded. The plaintiffs claimed for increased cost in clearing off the brush occasioned by the premature flooding. It was held that defendants had no right to flood the ground at the time they did, and that by doing so they interfered with plaintiffs’ prosecution of their work, and were guilty of a wrongful act for which, if damage ensued, the plaintiffs had a cause of action. It cannot be said that the damage, which ensued from the act of flooding, arose “ out of the nature of the work in progress.” The act was not contemplated by the contract, but was an unwarranted interference with the progress of plaintiffs’ work, which clearly constituted an actionable wrong. We find no principle laid down in this case that supports the plaintiffs' claim in the case at bar.

The Newell case holds that where work is done by the contractor necessitated by the wrongful acts or omissions, or even mistakes, of the municipal authorities, its cost may be recovered in an action, for damages. The claim that the Newell case furnishes authority for the recovery in the case at bar, finds its answer in the fact that the claim herein is not for work done.

For the reasons stated therefore it must be held that as to the second cause of action, the plaintiffs did not make out a case that called for submission to the jury. The allegations therein do not set up a cause of action against the defendants. The judgment is right, and must be affirmed, with costs to the respondent.


author: MoAdam, J.

text:
    National Board of Marine Underwriters, App’lt and Resp’t, v. National Bank of the Republic of New York, App’lt and Resp’t.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    1. Bills and notes—Indorsements—Forged.
    Though accounts have been rendered by the hank to the drawer, he is not bound to know that the indorsements upon the checks returned therewith are genuine, but has the right to assume that the bank has performed its duty by ascertaining, before making the payments, that they were made to the proper persons.
    3. Same—Presumption.
    It is more in accordance with legal presumptions to infer that the hank paid the checks to persons entitled to receive the money than that it paid on indorsements which were forged and to persons unauthorized to receive payment.
    3. Same.
    In the absence of proof that the checks were drawn in a form that required indorsement, there is nothing which calls upon the bank to prove that the checks were without indorsement, or, if indorsed, that the indorsements were genuine.
    Cross-appeals, first by the plaintiff, upon the ground that the referee should have allowed the plaintiff $4,914.62, instead of $2,803.27 ; and next by the defendant, upon the ground- that the amount allowed is excessive.

      George A. Black, for app’lt and resp’t, Hastings & Gleason, for app’Jt and resp’t.
   MoAdam, J.

The plaintiff was a depositor in the defendant’s bank, and sued to recover $4,914.62 as a balance of its deposits. The answer admits the deposits, and alleges (1) payment of all but $178.39, and (2) an account stated, by which the plaintiff is claimed to be concluded as to the balance due. The difference between the respective balances of the .plaintiff’s deposit account with the defendant's bank, -as figured by the two parties to the action, arose out of the payment, by the defendant, between Mav 1st, 1891, and March-31, 1892, over its counter, m money, of thirty-two checks, drawn by the plaintiff, which were charged by it agáinst the plaintiff. The payment of these thirty-two checks was the subject of controversy in the action. The course of business p.ursued by the defendant with respect to the account of the plaintiff appears to have been as follows :' At the end of each month the account was balanced, and a statement of all deposits and withdrawals entering into the account during the month was rendered by the defendant to the plaintiff, the bank" surrendering to the plaintiff, wi|h such statements, the checks so paid, as vouchers for the several items representing withdrawals. Concurrently with the rendering of such statement m writing, the bank also furnished the -plaintiff a printed form of receipt for the paid vouchers appearing m the account, upon which form was printed a request as follows : “Please examine accompanying statement, sign and return this receipt promptly. E. H. Pullen, Yice President.” The thirty-two checks in question were distributed through a period of eleven months, between May 1st, 1891, and April 1, 1892. Upon the trial it was proved that statements in writing covering the eleven months were rendered to and received by the plaintiff month by month, and the plaintiff produced such statements upon the demand of the defendant, and the same were received in evidence. No claim was asserted by the plaintiff against the bank until April 5, 1892. In the meantime it had regularly received the several statements of account, and had retained them without any objection. During the period named, plaintiff had in its employ as cashier one Thomas Yigus, to whom were entrusted the books of account of the plaintiff and the duty of making out bills, conducting correspondence, filling m the body of checks and paying bills. On April 4, 1892, the plaintiff received a letter from Yigus confessing that he was short in his casli - account to the extent .of about $3,500, and on the following day the plaintiff for the first time notified the bank of its alleged claim, which was that the names of the payees to the different checks had been forged, and that the plaintiff was in consequence not chargeable’ with their amounts. The referee held that the receipt by the plaintiff of the monthly statements of account rendered by the defendant and the retention thereof without objection for a considerable period of'time, must be held under the decisions of our courts to have the effect of such a stating of the accounts between the parties as to throw upon the plaintiff the burden of impeaching the account so rendered; and upon this principle decided that as to the accounts prior to Februan-, 1892, the presumption was that they were correct; that the onus was, therefore, cast upon the plaintiff to prove fraud, mistake or forgery; and that, as none of these elements was so proved by the plaintiff, it was concluded by said accounts. On this theory the referee found judgment in favor of the plaintiff for $178.39, the admitted balance, and for $2,654.88, the amount of the checks paid in February and March, 1892, upon the ground that as to these two months sufficient time had not elapsed to give the accounts the force of accounts stated; that the onus of proving payment to the proper persons was on the defendant and that the defendant had not sustained the burden of proof in that respect. Upon this view the referee awarded the plaintiff $2,803.27, which includes the admitted balance of $178.39 and eight checks drawn in February and March, 1892, embracing one drawn in favor of “Butler, Stillman,” intended for Butler, Stillman & Hubbard, the indorsement upon which was forged. No express assent to the accounts rendered was proved, but the plaintiff’s silence in reference thereto was claimed to imply assent. The plaintiff, in order to overcome and negative the presumption that any of its accounts became stated by reason of silence, proved that Vigus, its clerk, had possession of the accounts and checks returned by the bank, and withheld all information of the true condition of affairs from it and that it had no knowledge whatever in reference thereto. Upon this evidence the plaintiff claimed, and with reason, that it had destroyed whatever inference of acquiescence or consent that might otherwise have arisen from the retention of the checks and accounts. Welsh v. German Am. Bank, 73 N Y. 424; Shipman v. Bank of State of N. Y., 126 N. Y. 320, 37 St. Rep. 376 ; Frank v. Chemical Nat. Bank, 84 N. Y 213; Quincey v. White, 63 N. Y. 367. We think that the matter of accounts stated had nothing to do with the legal questions upon which the determination of the case depended. The accounts furnished by the bank to the plaintiff contain merely the date and amount of the payment, respecting which there was really no dispute, for the defendant proved without contradiction that the various payments had been made on the days stated in the accounts upon checks drawn by the plaintiff. So that, after all, the proposition involved is, whether the payments had been made to persons authorized to receive them, and this depends upon whether the checks were payable to the order of particular individuals and whether their indorsements thereon had been forged. The “ Butler, Stillman ” check was produced, and the bill it was intended to pay offered in evidence. This check was clearly intended to pay the claim owing to Butler, Stillman & Hubbard, and the check was intended for that firm. It was not a check drawn to the order of a fictitious person, because it represented real persons, although they were not properly named in it. The defendant was, therefore, clearly liable for $1,192.03, the amount of this check, and for $178.39, the balance of account, aggregating, without interest $1,370.42, and for this amount the referee ought to have awarded the plaintiff iudgrnent. Respecting the other thirty-one checks, these were not produced, having been destroyed by Yigus, and there was no evidence tending to show whether they were pay ■ able to particular persons or not. Yigus had defrauded the plaintiff by his dishonest conduct in withdrawing money from the •bank on genuine checks signed by the officers of the plaintiff, all of which were filled up by him, and, owing to the confidence which he enjoyed, were signed by such officers without critical examination or inspection. The only proof in the case tending to-show that these checks were made payable to particular individuals was, that the plaintiff owed certain individual bills corresponding with the amounts of the checks, which bills the plaintiff intended to pay by these checks. But it will not do to infer that, because Yigus was dishonest and made away with his employer’s money, he added to-his misconduct the independent crime of forgery, or that he drew the checks in a form to make forgery necessary, Indeed, his purpose would have been facilitated by making the checks payable to “ bearer,” or to “cash” or “petty cash and the inference that he did so make them is partly borne out by the evidence. In the absence of proof that the checks were drawn in a form that required indorsement, there was nothing which called upon the defendant to prove that the checks were without indorsement or, if indorsed, that the indorsements were genuine, for, if not payable to the order of a particular person, no indorsement was necessary.

The'adjudicated cases hold that, even if accounts had been rendered to the plaintiff, it was not bound to know that the indorsements upon checks returned therewith were genuine, but had the right to assume that the defendant had performed its duty by ascertaining before making the payments that they had been made to the proper persons. But where the form of the checks as paid does not appear in evidence, it is more in, accordance with legal presumptions to infer that the bank paid the checks to persons entitled to receive the money than that it paid on indorsement^ which were forged, and to persons unauthorized to receive payment. If the plaintiff’s, signature as drawer of the checks had been forged, other questions would have arisen; but that element does not require discussion, tor it is not in the case, and for the reasons stated the defendant is liable only for the $1,370.42 before referred to. /To hold otherwise would be to infer that because the indorsement on the “Butler, Stillman " check had been forged, the other seven checks drawn during February and March had also forged indorsements thereon. We can indulge in no such presumption, and have no more right to assume that the indorsements on these seven checks were forged than to assume that the indorsements on the whole thirty ■ two had been forged, a conclusion which would necessitate a judgment in favor of the plaintiff for the whole amount claimed.

The cross appeals, are, therefore, to be disposed of as follows: On the appeal taken by the plaintiff from the judgment as inadequate there must be an affirmance' with costs ; but on the appeal taken by the defendant the judgment must be reversed and a new trial ordered, with costs to the defendant to abide the event, unless the plaintiff stipulates to reduce the recovery to 31,370.42, with interest thereon, in which case the judgment for that amount will be affirmed, but without costs on the defendant’s appeal

Freedman, P, J., and Gildersleeve, J. concur.


text:
    Bessie Richmond, App’lt, v. Second Avenue Railroad Company, Resp’t.

      (New York Superior Court, General Term,

      Filed June, 1894.)

    1. Appeal—Pleadings—Amendment—Want of power.
    An order denying an amendment is appealable where the court puts its refusal upon the specific ground of want of power.
    3. Pleadings—Amendment.
    An amendment; which simply is intended to supply an omission in the allegations of a cause of action already alleged is allowable in the discretion of the court.
    Appeal by plaintiff from judgment entered by direction of the trial judge dismissing the complaint.

      Guggenheimer & Untermyer, for app’lt; Merrill & Rogers, for resp’t.
   McAdam, J.

The action is brought under the statute to recover damages for the killing of the plaintiff’s child by the defendant’s negligence. The statute gives the right of action to the legal representatives or next of kin. Code, § 1902. The suit was not brought by the executor or administrator of the decedent, but by the mother, for loss of services. The plaintiff in her complaint alleged that “the plaintiff is the mother and only surviving parent of Isidor Richmond, an infant of the age of sixteen years.” The accident occurred on March 28, 1892, and the action was commenced June 29, 1892. Upon the trial the defendant moved to dismiss the complaint, because there was no allegation therein that the plaintiff was the sole surviving parent of the infant at the time of the accident; that the right of action, therefore, belonged presumably to the father, as next of kin, and not to the mother; and there was no allegation in the complaint showing that the father was dead at that time. Geraghty v. New, 57 St. Rep. 497; S. C., 27 N. Y. Supp. 403. The plaintiff thereupon moved to amend the complaint on terms, so that the paragraph before referred to should read as follows . That “the plaintiff is, and was at all the times hereinafter mentioned,, the mother and only surviving parent of Isidor Richmond, an infant of the age of sixteen years, and entitled now and at all of said times to his services.” The motion was denied by the court, “on the sole ground that it had not power to grant an' amendment which would make a cause of action in a complaint where none had been stated.” To this ruling the plaintiff duly excepted. The complaint was thereupon dismissed, and from the judgment entered on such dismissal this appeal is taken. If the court below had denied the motion in the exercise of its discretion, the judgment would have to be affirmed in case the general term deemed the discretion well exercised. The motion, however, was not so denied, but solely upon the ground that the court had no power to allow the amendment, so that the 'discretion of the court as to the propriety of the amendment was never called into operation. The only question therefore before us is, whether the court had the power ; and we are of opinion that it had. Code, § 723. The only limitation upon the power to amend at the trial is, that a new cause of action shall not be substituted for the old one. Price v. Brown, 98 N. Y. 388; Buck v. Barker, 5 St. Rep. 826; Avery v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 142; 8 St. Rep. 612; Price v. Brown, 112 N. Y. 677; 21 St. Rep. 573 ; Collyer v. Collyer, 50 Hun, 422; 21 St. Rep. 118. The amendment did not propose to insert anew clause of action, but simply to supply an omission in the allegations of the one already alleged. It was practically correcting, the grammar of the complaint by using the past instead of the present tense. When the plaintiff alleged that she is the mother and only surviving parent of the infant, this evidently had reference to the occurrence of the accident, and if the word “was” instead of “is” had been used, the complaint by every reasonable intendment might have been deemed sufficient. So that, even if the court below had exercised its discretion by denying the application, it might- not have been considered well exercised. But the court put its refusal upon the specific ground of “want of powerand that phase of the question is the only one before us'for review. Where applications are denied on the sole ground of “want of power,” they are generally reviewable even by the court of appeals? but in the case of a discretion exercised by the trial court and sustained by the general term, the party is not as of right, entitled to have the discretion reviewed in that court, unless it has been abused. In re Holbrook, 99 N. Y. 539, and kindred cases.

In Tilton v. Beecher, 59 N. Y. at p. 180, the court said: “ The only question arising upon the present appeal, which is reviewable in this court, is whether or not tbe court below had power to grant the application of the defendant. It it possessed that power, and under the mistaken impression that tbe power did not exist, denied the application on that ground, we have jurisdiction, and it is our duty to correct that error of law and remit the case to1 the court below, with a discretion that the motion be heard at special term upon the merits. People v. N. Y. Central R. R. Co., 29 N. Y. 418; Brown v. Brown, 58 N. Y. 609 The first point for our consideration is, whether in fact the case was disposed of in the court below on the question of power. If it was,-we are then called upon to decide whether or not the power existed, and if we find that it did, the defendant is. entitled to the unembarrassed exercise of the discretion of the court in which his cause is pending upon the question whether or not justice demands that his application be granted. * * * Whether in the exercise of its discretion it should grant or refuse the order applied for we are not to decide.' All that we decide is that it has the power, if it sees fit, to order particulars to be furnished, and in deciding that it has not such power, it committed an error at law, which requires us to reverse its decision." If the court below had not decided that it was without power to grant the amendment, it might, and probably would, have allowed the same upon terms, such as the payment of reasonable costs, and, if necessary to prevent surprise, the withdrawal of a juror and the putting of the case over the term; all of which would have prevented injustice of any kind to the defendant; but these considerations were not entertained because of the supposed want of authority to grant the motion. It may be proper in passing to call attention to the circumstance, that the accident occurred in March, 1892, and by the statute, Code, § 1902, the remedy accorded must be invoked with two years after the decedent’s death. The two years having expired, "the plaintiff will be remediless unless relief is afforded her in this action, and upon the present appeal

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.