author: Gtldersleeve, J.

text:
    Martha M. King, Pl'ff, v. Thomas C. Brewer, Def’t.

      (New York Superior Court, Equity Term, Filed

      May, 1894.)

    Marriage—Annulment—Fraud.
    A marriage will be annulled on the ground that-the wife’s consent was obtained by fraud, where she married in the conviction that her husband was a good and worthy man, when in fact he was at the time of the marriage, or had been prior thereto, engaged in a criminal occupation.
    Action to annul a marriage contract.

      James R. Fancher, for pl'ff; No appearance, for def’t.
   Gtldersleeve, J.

The question here presented is a delicate and unusual one. The action is brought to annul a marriage contract, under § 1743, subdivision 4 of the Code, on the ground that the consent of plaintiff was obtained by fraud. The state of facts upon which the charge of fraud is based is as follows: The parties were married on the 12th of April, 1893. The defendant, at that time, seems to have enjoyed a good reputation in society as a young man who attended church and acted the part of a law-abiding citizen of good moral character. The plaintiff had known him for some years, and for two years previous to the marriage quite intimately. She believed him to be a man worthy of her affection. The plaintiff herself was at the time of the marriage about twenty years of age, and was a young lady apparently of religious instincts and refined nature, and enjoyed the respect and esteem of the society in which she moved. Her brother, who seems to have stood in the place of guardian to her, as her father was dead, made investigations, prior to the marriage, concerning the character and antecedents of defendant, and was satisfied that there was nothing against his character. Her pastor also seems to have had a good opinion of defendant, and from all her friends who knew defendant she apparently heard nothing that would tend to cause her any doubt of defendant’s good moral character. With this opinion of defendant, she consented to marry him. It seems, however, that for some time previous to his marriage defendant kept a poolroom, unknown to plaintiff. Ostensibly, he carried on business as a stationer, and was apparently engaged'in earning an honest livelihood, but he also, at the same time, ran a pool room, which is an offense punishable by imprisonment for one year, or by a fine of not over $2,000, or both. See Penal Code, § 351. The plaintiff and defendant lived together as man and wife from the date of their marriage, i. e., April 12, 1893, until about August 1, 1893, when defendant was arrested on a charge of obtaining money under false pretenses, and was placed in Ludlow street jail, where he remained about a month, and was then released. The testimony is very meager on this point, and I do not know whether he was let out on bail, or whether the matter was adjusted in some way. The plaintiff was made aware of his offense, but seems to have in a measure condoned it, for she visited him in prison, and seems to have acted like a model wife under trying circumstances. Her explanation of this is as follows: “I thought it was his first offense. I thought that if he came out he would do what was right; * * * he promised me he would.” She also swears that, after her marriage, defendant admitted to her that he had kept a pool room during some months previous to their marriage; but at what time after the marriage he made this confession does not appear, so it is difficult to determine whether or not she also condoned this fault or deception by continuing to live with him, or whether she left him immediately afterwards. After his release from prison, he again ran counter to the law, and got into trouble by running a Pontiac bank; whereupon plaintiff left him for good, resumed her maiden name, and has since refused to have anything to do with him, except that on one occasion, in November, 1893, she consented to grant him an interview, but refused apparently to become reconciled to him. Indeed, she swears she has not cohabited or lived with him since the month of August, 1893. On April 10, 1894, about one year after her marriage, she brought this action to annul the marriage contract. The defendant has not appeared in the action, but has allowed the case to go against him by default. The question here to be determined is, do the above circumstances constitute a fraud on plaintiff by defendant in procuring her consent to the marriage, within the meaning of § 1743, subdivision 4, of the Code ? Plaintiff, at the time of the marriage, believeddefendant to be a good man, whereas, in point of fact, he had kept a pool room, and to that extent was a man of criminal propensities. These propensities were further developed after the marriage; but they existed at the time of the marriage, although they were not discovered by plaintiff until after the marriage. Would plaintiff have consented to marry the defendant had she known that he was, or had been engaged in a criminal occupation, and was a man of criminal propensities? Presumably not; although, as I have said, it is difficult to. determine from the evidence whether or not she condoned his deception in concealing from her the fact that he had kept a pool room previous to his marriage. Certainly it would seem to have been a deception on the part of defendant to keep the plaintiff in ignorance of his pool room until after the marriage. Plaintiff did not rush- blindly into the marriage, but had excellent reasons for supposing defendant to be a worthy person. Subsequent to the marriage she discovei’ed that she had been deceived in defendant’s character1, and that at, or shortly before the time of his marriage, he had been engaged in a criminal occupation. Since the marriage, the bad character of defendant has become of common repute,' through newspaper notoriety. It certainly seems a very hard fate for a young woman, scarcely out o.f her teens, to find herself bound to a man of criminal instincts, whom, at the time of the marriage, she had supposed to be, and. had good reason to believe, was an honest and worthy man. But if, after full knowledge of the facts constituting the fraud or deception, she voluntarily continued to cohabit with defendant, she cannot maintain an action for the annulment of the marriage. Code, § 1750. The testimony on this point is not very satisfactory. She learned, after the marriage, that he had kept a pool room previous to the marriage; but whether or not she left him immediately after such fact had come to her knowledge, or not, does not appear. When' he was arrested for obtaining money on false pretenses she visited him in prison and sympathized with him, because she thought it was “ his first offense,” and that he would do better after he got out. This would imply that, at that time, she had not yet heard of the pool room, since she thought the charge upon which he was arrested was his first offense. It appears from the testimony that after he came out of jail she did not again cohabit with him. I think, therefore, it is safe to assume that she did not condone the fraud or deception by voluntarily cohabiting with him with a full knowledge of the facts constituting the fraud. When I look for some precedent to sustain a decree of annulment herein, the result is not encouraging; but the authorities on the other side are not conclusive. The case of Klein v. Wolfsohn, 1 Abb. N. C. 134, would seem to hold against plaintiff. But in that case the plaintiff “blindly relied upon defendant’s representations as to his character and property,” and “ heedlessly ” entered into the marriage without informing herself of the character and means of defendant; whereas in the case at bar the plaintiff had excellent reasons for believing implicitly in the good character of the defendant. She had known him intimately for two years, and every one spoke highly of his moral worth, including those in whom she had perfect confidence, i. e., her brother, who had made investigations as to defendant’s character; her pastor, and others. Let us reverse the position of the parties in the case at bar. Let us suppose the wife bore an excellent reputation and every one spoke highly of her, and those who knew her, and in whom the husband had perfect confidence, assured him that she was above all reproach, and he married her, believing her to be a good, virtuous woman; and then suppose that, after the marriage, he learned that she had been, at the time of the marriage, a prostitute; could he not maintain an action to annul the marriage for fraud? I think he certainly could. See Carris v. Carris, 24 N. J. Eq. 516; Scott v. Shufeldt, 5 Paige, 43. And why, then, should not the same rule hold good where the positions are .reversed, and it is the wife who seeks to have the marriage annulled, and be freed from a criminal, whom she has married in the conviction that he was a good and worthy man ? This court, at equity term, has gone very far in maintaining this proposition. In the case of Keyes v. Keyes, 6 Misc. Rep. 855, the doctrine is laid down that where defendant, by fraudulently representing himself as an honest, industrious man, induced plaintiff to marry him, when, in fact, lie was a professional thief, whose picture was in the “ rogues’ gallery,” and who, at the time of the trial, was in state prison, the case was within the provisions of § 1743 of the Code, and that a decree of nullity on the ground of fraud should be granted. The facts in that case are not quite the same as in the case at bar, but the same principle applies to both eases. The learned counsel for the plaintiff, in his excellent brief, cites a number of cases tending to show the gradual progress from a somewhat puritanical view of the subject, as exemplified in the case of Scroggins v. Scroggins, 3 Dev. (N. C.) 535, towards a more liberal view, as manifested in the case of Keyes v. Keyes, above referred to. I do not think that any of the cases can be regarded quite as a precedent for the case at bar, although some of them go far toward sustaining this court in granting the decree here asked for. In this ease, as in the Keyes Case, here will be no children to suffer by reason of the annulment of the marriage. Justice and right seem to require the separation of these two lives, so wrongly and unfortunately united. A court of equity does not go too far when it gives this young plaintiff, who has been grievously wronged while doing no wrong herself, the opportunity to commence life again free and uutrammeled. After a careful consideration of the circustances of the case, I am of opinion that a decree annulling the marriage contract should be granted. Ordered accordingly.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    George H. Adams et al., as Executors, etc., Resp’ts, v. Stephen H. Olin et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Executobs—Disputed claims.
    The amendment of 1893 to § 3718 of the Code converts a pending reference of a disputed claim into an action, and costs may he allowed accordingly.
    Appeal from as much of two orders as allowed defendants costs as in an action.

      Qeo. H. Adams, for app’lts; G. L. Rives, for resp’ts.
   Van Brunt, P. J.

This was begun as a special proceeding-under the statutes to determine a disputed claim against an estate. The matter was referred to a referee to hear and determine, and after three trials, and three hearings at the general term, a judgment for a large amount was recovered by the claimants. The-defendants then appealed to the court of appeals, and before argument the Code, in respect to these proceedings, was amended. It. was provided by § 2718 of the Code, as amended, that: “If the executor or administrator doubts the justice of any claim presented against the estate he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons to be approved by the surrogate. On filing such an agreement and approval in the office of the clerk of the supreme court in the county in which the parties or one of them reside an order shall be entered by the clerk referring the matter in controversy to the persons so selected. On the entry of such an order the proceeding shall become an action in the supreme court. The same proceeding shall be had in all respects * * * as if the reference had been made in an action in which such court, might by law direct a reference. In determning the question of costs the referee shall be governed by §§ 1835 and 1836 of' this act.”

The sections referred to relate to the granting of costs against-an executor or administrator.

In October, 1893, the cause was argued before the court of appeals, and in November the court of appeals reversed the judgment, 140 N. Y. 150 ; 55 St. Rep. 257 ; and on the 1st of December an order was entered in this court, upon the remittitur from the court of appeals, making the judgment of that court the judgment of this court. The plaintiffs thereupon withdrew their claim, and stipulated that judgment should be entered against, them, dismissing the claim, and leaving the question of costs— whether taxable or not—to the court. An application was thereupon made for a judgment dismissing the plaintiffs’ claim, and awarding restitution, and granting costs and an extra allowance. This motion being granted, costs were taxed by the cleyk; and a motion being made for retaxation, upon exceptions, the same was-denied. From these orders the present appeal is taken.

It seems to us that, by force of the provisions of § 2718 of the Code, when such section went into effect this proceeding ceased to be a special proceeding, and became an action, and was to be treated as such in respect to all subsequent proceedings. No question could have arisen, had a new order of reference been made, that from the entry of such order the provisions of the Code would apply. The .fact that the condition precedent of an order of reference had already been made upon a claim presented and disputed would not prevent the operation of the statute. Such being the case, the defendants were entitled, as matter of right, to costs, upon their successful defense of the claim presented against the estate which they represented. We think that it was the intention of the legislature, in reference to these proceedings,, to make them exactly parallel to those which take place in an action after a reference has been ordered, and that the only discretion which is vested in the referee, in regard to costs, is in respect to those which might be allowed to a plaintiff against an executor who had not unreasonably resisted a claim against his estate. The orders should be affirmed, with $10 costs and disbursements. All concur.


author: Parker, J.

text:
    Albro Akin, Resp’t, v. Ezra M. Meeker et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Assignment—Delivery of original contract.
    A written assignment of a contract, with copy annexed, where the agreement to assign does not provide for a delivery of the original, is valid without such delivery.
    Appeal from a judgment entered on a verdict for plaintiff by direction of the court, and from an order denying a motion for a new trial.

      Lawrence K Sexton, for app’lts; John M. Bowers, for resp’t
   Parker, J.

Defendants contracted with the agents of plaintiff in the state of Washington that defendants would pay $2,800 for the assignment of nine contracts which plaintiff and A. J. Luce & Go. had entered into with nine different growers of hops in that state. Defendants obtained from seven of the nine growers the quantity of hops stipulated for, and netted nearly $15,000 out of the transaction. Two of the contracting hop growers refused to deliver their hops to defendants, but sold them elsewhere, and, as their action in that respect operated to prevent a further addition to the profits accruing to the defendants under their contract, it is made to serve as an excuse for this attempt to wrong the plaintiff out of substantially the entire sum which the defendants promised to pay.

The ground upon which the defendants base their claim to defeat a recovery by the plaintiff is that he failed to perform his, agreement in that he did not “ properly assign the entire interest * in the nine contracts. The contract recites that Alcin (this plaintiff) has this day sold to E. M. Meeker & Co. (these defendants), at sixteen cents per pound, “ all my right, title, and interest in the following hop contracts for the hop year of 1890.” Then follows a list of the names of the persons with whom the contracts were made, together with a statement opposite each name of the number of pounds which the grower had contracted to sell and deliver. The contract continues: “And I further agree to properly assign the entire interest in the above contracts now in my possession to said E. M. Meeker & Co.” There were other provisions in the contract, but they need not be alluded to. Before this contract was executed, plaintiff’s agents explained fully to the defendants Meeker & Co. that the contracts were in Akin’s hands in New York; that they ran to Akin and A. J. Luce & Co.; that Luce & Co. had been enjoined at the suit of Akin, by the supreme court, from, having anything to do with the receipt of hops under the contracts during the year. The contract was drafted by the defendant Meeker, who did not insert in it a stipulation that the original contracts should be delivered to him, but contented himself with a provision that plaintiff sells all his right, title, and interest in the contract, and agrees to properly assign the entire interest there-, in to the defendants. As soon as Akin had learned of the making of the contract by his agents, he sent a copy of the contracts, each bearing a separate assignment, to his agents, Thompson & French, who in turn delivered them to the defendants. The3r made no objection at that time, because Akin had sent them copies instead of the original contracts. At the same time growers’ advance notes, given to Akin for moneys advanced on account of the crops to the several hop growers with whom lie had contracts, were turned over by the agents to the defendants, and they were also accepted and retained. Immediately after the receipt of the assignments and the copies of the contracts, together with the growers’ advance notes, defendants wrote to each of the hop growers, informing them that they had purchased his contract with Akin, and inquiring where he wished the advances due September 1st sent. All replied, except Simpson & White, whose contracts, taken together, called for about one-eighth of the entire quantity of hops. A few days later, defendants offered Simpson & White the advances called for in the contract, but both refused to receive them. It does not appear that Simpson or White challenged defendants’ title .to the contract. They simply refused performance of their contract. Some time after that, defendants wrote plaintiff, asking him to send the originals of the contracts, at the same time informing him that they understood they were to have the originals placed in their hands. As soon as the letter reached the plaintiff in the city of New York, he telegraphed defendants that he had mailed to Thompson & French, his agents, the original contracts assigned. Defendants testified they did not see airy of the originals until some time during the ensuing month of October, hut do not say that they made any attempt either to see or obtain the originals in the mean time. Their conduct, as disclosed by their own version of it, creates the impression that for some reason they had concluded that it was not wise to have litigation with Simpson & White, because of tlieir refusal to perform, and that, instead, they had concluded to attempt to make good whatever loss, if any¡ should result, out of the plaintiff, in a contest with whom, they would have the advantage accruing from the possession of the sum which they had agreed to pay him for the contracts.

There was nothing in the contract between plaintiff and defendants providing that the original .contracts with the hop growers should be delivered, but the instrument did assign the interest of the plaintiff, and stipulated to assign the entire interest. The mere failure to put defendants in possession of the original contracts, therefore, did not constitute a breach of the contract. The agreement between the agents of the plaintiff and defendants, followed by the assignment in writing of each of the several contracts, of which a copy was annexed to the assignment, operated as a valid assignment of Akin’s interest in the contracts. Horner v. Wood, 15 Barb. 371; Doremus v. Williams, 4 Hun, 458; Anderson v. Read, 106 N. Y. 333 ; 11 St. Rep. 123. Defendants complained on the trial that, after the original contracts arrived in the state of Washington, plaintiff's agents, instead of delivering them over to defendants without question, attempted.to secure for the plaintiff a sum of money, which was due him under the contract. The defendants successfully resisted this attempt of the plaintiff to secure his debt without litigation. Whether it would have been better for the plaintiff’s agents to have omitted that precaution is not now, and was not then, a matter of legal consequence. A delivery of the original contracts had not been contracted for, and was not essential to vest in the defendants the interest which plaintiff and A. J. Luce & Co. had in them. The defendants apparently had no occasion to make use of the originals, but, had they chosen to compel performance of the contracts of Simpson & White by action, and their title had been called in question, the production of the original contracts in evidence would have fully accomplished defendants’ purpose. It is quite apparent from the discussion already had that defendants’ suggestion that in some way damage resulted by reason of the failure of the plaintiff to deliver, in the first instance, the original contracts, is wholly without support in the evidence.

The proposition upon which defendants apparently place more reliance than those so far considered is that defendants were entitled to succeed because plaintiff failed to perform his agreement, in that he neglected “ properly to assign the entire interest.” But we think the trial court rightly disposed of that question by its direction of a verdict in favor of the plaintiff, thereby necessarily holding that, defendants having accepted plaintiff’s tender of performance, the defendants were left to such rights and remedies as should accrue to them by virtue of any warranty, expressed or implied, in the contract, and that the only warranty, cither expressed or implied, was one of title, touching the alleged breach of which defendants failed to make such proof as entitled them to redress. As to whether there was an acceptance of plaintiff’s performance, there was no dispute as to the facts. It was not controverted that the copy contracts, with assignments and growers’ notes for advances, were put in the possession of the defendants after the making of the contract in suit, and kept by them ; that they used them, claiming under and by virtue of them to be the owners of the hops described in them; that they ac-accepted and paid for the hops delivered under such copies and assignments, never having had in their possession the seven original contracts, any more than the two of Simpson & White; that, as to the Simpson & White contracts, they acted upon the assignments in the same way as with the others,—made tender to the growers under the assignments; consulted a lawyer how they should enforce them. These facts, being undisputed, show an acceptance by defendants of the performance tendered by plaintiff. The clause in the contract by which Akin agreed to properly assign the entire interest in the above contracts amounted to an express warranty of title, and in order to defend against an action for the price of the things sold, defendants must show, in the absence of fraud, an eviction or its equivalent. Or, where the action is brought by a vendee against his vendor for an express or implied breach of warranty of title, there can only be- a recovery where proof is made of actual loss. O'Brien v. Jones, 91 N. Y. 198. And, when the vendee relies upon the warranty of title, he must either return to the true owner the property in question, or be prepared to prove its loss under compulsory proceedings, or the payment of money through judgment obtained against him, or voluntarily, in answer to the claim made, and in that case he must also affirmatively establish that the claimant was the true owner, and that his vendor was without title. Case v. Hall, 24 Wend. 102 ; Delaware Bank v. Jarvis, 20 N. Y. 226; Burt v. Dewey, 40 N. Y. 283; Mc Giffen v. Baird, 62 N. Y. 329; O'Brien v. Jones, supra.

The alleged defect in the title is that A. J. Luce & Co. had an interest in the contracts, as well as the plaintiffs, and that there was no assignment of an interest other than that of the plaintiff. The defendants did not return the contracts assigned to them by plaintiff, nor prove any loss by reason of compulsory proceedings on the part of A. J. Luce & Co., the payment of money through judgment obtained by them against defendants, or even that A. J. Luce & Co. had made any claim against them whatever. On the trial, as appears from the record, it was shown that A. J. Luce & Co. and Alfred Gr. Luce were the same person; that from the 9th day of August, 1889, down to the 5th day of July, 1892, Luc'e was restrained by the injunction order and by an interlocutory judgment, at suit of Akin, from demanding or receiving any of the hops covered by the contract which constitutes the basis of this action. By the final judgment determining the respective rights of Akin and Luce, the suit at bar was provided for in such a way that Luce cannot maintain any action against these defendants on account of the transaction which is the subject of this litigation. It is apparent, therefore, that the evidence failed to establish any right on the part of the defendants to recover damages against the plaintiff by reason of the alleged breach of an expressed warranty of title. The judgment and order should be affirmed, with costs.

All concur.


text:
    In the Matter of the Application for the Probate of the Will of Kate L. Laudy, Deceased.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Wm—Signature.
    The signature of testator, after the attestation clause, is at the end of the will.

      % Same—Proof of execution.
    A will may he probated on the testimony of one subscribing witness, where the other witness does not recollect what occurred at the execution of the will.

      Appeal from a decree denying the application for the probate of a will.

      Parsons, Shepard & Ogden, for app’lt Peter Cooper Union; P. H. Vernon, for app'lt Woman’s Hospital; Daniel G. Rollins, for resp’t.
   Parker, J.

The learned surrogate, at the close of the examination of the attesting witnesses to the instrument propounded by the executor as the last will and testament of Kate L. Laudy, held that certain of the substantial formalities which the statute requires to be observed in order to entitle an instrument to probate were omitted, and, as a necessary sequence of such determination, probate was denied. The statute requires that a last will and testament shall be executed and attested in the following manner: “(1) It shall be subscribed by the testator at the end of the will. (2) Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses. (3) The testator, at the time of making such subscription or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. (4) There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.” 2 Rev. St. p. 63, §40; 3 Rev. St. (7th El.) p. 2285.

That the will was duly published and properly attested was not questioned, and there remains for consideration whether the other two requisites of a valid execution were complied with: (1) Did the testatrix subscribe the instrument at the end of the will? (2) Did she make such subscription in the presence of each of the attesting witnesses, or make due acknowledgment thereof to each of them ? The will appears to have been drafted some little time prior to the date of its attempted execution, which did not take place under the direction of a person familiar with the execution of such instruments. It is not surprising, therefore, that the full importance of the attestation clause, which had properly been made a part of the instrument by the scrivener, was not appreciated, and that the testatrix, instead of signing the instrument before the attestation clause, and opposite the seal, signed it next after such clause. So much of the instrument as is necessary to. present the manner in which it was executed reads as follows ‘ “ In witness whereof I have hereunto set my hand and affixed my seal the -day of June in the year of our Lord one thousand eight hundred and ninety. [l. s.]

“ The foregoing instrument was, at the date thereof, signed, sealed, published, and declared by said testatrix in our presence as and for her last will and testament, and thereupon we, at her request, and in her presence, and in the presence of each other, subscribe our names as witnesses hereto.

“Kate L. Laudt.

“William H. Porter, M. D.

“Cornelia K Edwards."

On our way to this point we have remarked that the testatrix signed the instrument after the attestation clause, instead of before it. It should be said that the respondent docs not admit that the evidence justifies such an assertion, but it seems to me quite clearly otherwise. It is true that the proponent did not call any witnesses familiar with the handwriting of the deceased to testify that it was her signature, nor did the subscribing witnesses say that they saw her write it, while, on the other hand, no attempt was made to show that it was not her signature. That it was seems not to have been questioned, contestant’s point being, as 'shown by the cross-examination of the attesting witnesses, that she did not sign it in the presence of the subscribing witnesses, or make such acknowledgment as would satisfy -the demands of the statute. But while no one familiar with her handwriting, ■ or a person qualified to express an opinion of the genuineness of handwriting, after examination of established signatures, was called upon to say whether it was her signature, the evidence was abundant, not only-to justify, but to require, a finding that the signature was hers. In addition to the position of the signature of testatrix on the paper, between the last line of the attestation clause and the signature of Dr. Porter, concluding, as it did, with a flourish of the pen which extended down to and upon the lino where Dr. Porter wrote his name, we have the testimony of the doctor, whom Mrs. Laudy invited to become a subscribing witness to the will. He said that, in response to her request, he suggested an objection to signing a paper without understanding it, '“and, as I remember it, she simply unfolded it, and showed me it was her will, and remarked that I ought not to be afraid to sign it after she had signed it; and, as I remember it, her signature was there, or there was a signature above where I signed.” This testimony contains not only the declaration of the testatrix that she had signed it. but also an assertion of the witness that there was a signature above his ; and an examination of the paper discloses that there was but one signature above that of the witness, and that was Mrs. Dandy’s. The record contains other evidence tending to show that the signature to the will was that of the testatrix ; but, as it will have to be referred to when we come to the question whether the testatrix acknowledged her subscription to the will to each of the attesting witnesses, we refrain from its further consideration here. Whether the signing by the testatrix was at the end of the will, as required by statute, is no longer an. open question, It was before the court of last resort in Younger v. Duffie, 94 N. Y. 535, where it was held that the testator, by signing his name after the attestation clause, makes it a part of the will, and, if nothing intervenes between it and the signature, the subscription is at the end of the will, within the meaning of the statute. The evidence did not warrant a finding that the testatrix subscribed at the end of the will in the presence of the attesting witnesses; but the statute is in the alternative, and provides that, when not so subscribed, it “ shall be acknowledged by him to have been so made to each of the attesting witnesses.” This latter provision of the statute is fully complied with by an exhibition of the instrument bearing the testator’s signature properly subscribed, accompanied by a declaration to the witnesses that it was his last will and testament, and supplemented with a request that the witnesses attest the same. In re Phillips, 98 N. Y. 267.

We have then to inquire whether the evidence requires a finding that the testatrix properly acknowledged the execution of the will. In doing this we shall have in mind that, bjr an express provision of the statute, this court has the same power to decide the questions of fact which the surrogate liad. Code Civ. Proc. § 2586. We are not, therefore, hampered by rules which ordinarily obtain in reviewing the findings of fact of a trial court. IE the conclusion at which we shall arrive, with the aid of a more careful argument than the surrogate was favored with, shall differ from his determination, we have but to give expression to it by finding the fact to be as we think the evidence requires. The authorities cited by the appellants, holding that wills should be admitted to probate even where the attesting witnesses are unable to recall any of the events attending the execution of the will, because of the recitals in the attestation clause, have no application here. It affirmatively and undisputedly appears that the attesting witnesses to Mrs Laudy’s will did not read, or hear read, the attestation clause. Neither docs § 2620 of the Code of Civil Procedure aid us, except in so far, as it indicates thelegislativepolicy to be not to permit a testator’s intended disposition of his property to be thwarted by the absence, incompetency, dishonesty, or death of the subscribing witnesses, when other proof which it points out shall be attainable. That section provides : “ If all the subscribing witnesses to a written will are, or if a subscribing witness, whose testimony is required, is dead, or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify, or if such a subscribing witness is absent from the state; or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances, as would be sufficient to prove the bill upon the trial of an action.1’

No attempt was made beyond the examination of the subscribing witnesses, to make such proof as the section quoted suggests. The subscribing witnesses were Dr. Porter, the attending physician, an 1 Mrs. Edwards, the nurse then in charge of testatrix. Dr. Porter testified as follows: “I am a physician, forty years of age, and r 'si lo at 1674 Broadway. I knew Mrs. Kate L. Laudy in her lifetime. The signature of William II. Porter, M. D., on the paper now shown me, marked witli the file mark of this court, and filed for probate on September 12, 1893, is my signature. The circumstances under which that signature was made are as follows: It was while I was attending Mrs. Laudy, and she asked me one day to sign the paper, and I rather objected to do it, as I didn’t know what I was going to sign ray name to; and, as I remember it, she simplv unfolded it, and showed me it was her will, and remarked that I had ought not be afraid to sign it after she had signed it: and, as I remember it, her signature was there, or there was a signature above where I signed, but I didn’t stop to look into the matter very closely one way or the other. I just had a glance at it, and I signed my name to it. Mrs. Laudy and this lady, Mrs. Edwards, were present, and myself, at the time I signed this paper. I think there was no other person in the room. I don’t remember that there was anything else said or done beyond what I have stated. I had made my regular professional visit, and had seen Mrs. Laudy, and, as I was about to go out, she asked me if I would sign her will. Those were the words she used, and I said I didn’t know just what I was signing, and she opened it only at the bottom. I presume that the paper now shown me is the paper, because that is my signature. As I remember it, Mrs. Laudy just laid the paper down in this way on the tab’e, and that exposes that part of the paper, and thei’e was no signature to be seen as it laid in this way on the table,—no writing on it at all that I could see, except under the margin; and I rather objected to signing a document I didn't know anything at all about. I didn’t know at all what I was signing or might be signing, and then she carelessly opened it, and she said, ‘It is my will;’ she had signed it, and that I oughtn’t to have any objection to signing it if she didn’t; and my impression is that her-signature was there before I signed it, and that is as I recollect the matter. I had objected to signing it, and she said, after her name was in front of mine, she thought I ought not object to signing it, and then I simply signed it, and put on my hat and walked out. I didn’t look to see whether her name was there or not, and nothing further was said, one way or the other, about it.’’

It is readily apparent, from the testimony thus quoted, that, had the other witness fully corroborated Dr. Porter, there would have been no room for doubting even that the statutory requirements had been fully met. But some portion of Mrs. Edwards’ testimony ■seems calculated to give the impression that, so far as she had any recollection, it was that Mrs. Laudy did not show her the signature. She said: “ When I signed my name, the paper was folded, -as near as I can recollect, so that I.did not see anything but just so much of the paper where Dr. Porter signed his name, and where I signed it, immediately under where the paper terminated,—the writing of the paper; and so I saw no contents of the paper further than the lines where Dr. Porter and I wrote our names. Now, I see immediately preceding the name of Dr. Porter the name of ‘Kate L. Laudy.’ Q. Was that signature’visible to you at the time you signed your name to the paper? A. Not that I recollect. I could not tell you. That is a question that I could not •answer. I didn't notice it.”

She does not say that she did not see the signature, but her testimony, considered in its entirety, amounts to an assertion that she has no present recollection of iseeing the signature,—a situation in which subscribing witnesses to wills often finds themselves. But the evidence, considered as a whole, satisfies us that, notwithstanding her present recollection, she did see the signature before signing her name as a witness. At Mrs. Laudy’s request she took the •will from the secretary, and brought it, together with the ink and pen, to her. From that moment until her signature was subscribed as a witness it is apparent she was in a position to hear and see all that took place. Dr. Porter testified that she was standing near by all the time, “ and in such a position that she might have heard it, and naturally would have heard it.” Mrs. Edwards expressed the opinion that she heard all that took place, as will appear from the following questions and answer: “Q. Did you hear the conversation at the time this paper was signed between Dr. Porter and Mrs. Laudy? A. Well, I think I did,—all that pertained to this matter. It was something like that. Mrs. Laudy asked the doctor if he would sign this paper, which washer last will and testament, and he, in a sort of laughing, joking sort of way, made the remark, 1 Well, he didn’t know whether it was anything detrimental; he didn’t want to sign any papers unless he knew what was in them; ’ and she said it was her last will and testament, and she just raised her hand from the table, about like that; and that is all that I recollect hearing that pertained to this matter at all.”

When, in response to the inquiry whether she had heard Dr. Potter’s description of what took place, she said “ it was something like that,” she portrayed her mental condition, and made it plain that her testimony should not be regarded as accurately describing anything that took place. It forces the conviction that this woman had no mental grasp whatever of the events about which she was testifying. It seemed to her that “ it was something like that ” testified to by Dr. Porter. She did not attempt to challenge anything stated by him, and probably could not; but, when she undertook to repeat what took place, her feeble memory caused her to fall far short of the real facts, and this failure to recall and repeat the occurrence as described by Dr. Porter has been treated as a denial of them. Again, it is undisputed that, at the time Dr. Porter signed, the paper was sufficiently unfolded so that he could see testatrix’s signature. “ Her signature was there, or there was a signature above where I signed, but I didn’t stop to look into the matter very closely one way or the other. I just had a glance at it, and I signed my name to it.” Then Mrs. Edwards takes up the story of that occasion. She says: “He (Dr. Porter) signed his name. She then turned to me and she says, 1 Susan, will you sign now ? ’ and so then I signed my name underneath Dr. Porter’s name.” How, there is no evidence that the testatrix or any one else altered the position of the paper between the time when Dr-Porter saw the testatrix’s signature, as he signed his name, and when, immediately after, Mrs. Edwards signed hers. The presumption is that its position remained the same; and that is also the inference from the evidence. If so, the testatrix’s signature was as plainly visible to Mrs. Edwards when she signed it, if she had looked at it, as it had been to Dr. Porter when he signed it, the moment before. We think the testimony of the subscribing witnesses, considered in connection with the circumstances attending the execution of the will, requires a finding that the testatrix complied with the demands of the statute that, in the event of failure on the part of a testatrix to subscribe the will in the presence of each of the attesting witnesses, it shall be acknowledged by her to have been so made, to each of the attesting witnesses. It follows that the decree appealed from should be reversed, and the surrogate’s court directed to .admit the will to probate, In re Hunt's Will, 110 N. Y. 278 ; 18 St. Rep. 118 ; costs of appeal to be paid out of estate.

All concur.


author: Follett, J.

text:
    Townsend Cox et al., as Second Bondholders, etc., App’lts, v. Edward S. Stokes et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Corporations—Reorganization—Committee.
    Notice in good faith to the reorganization committee as to matters pertaining to such reorganization, is equivalent to notice to the signers of the reorganization agreement.
    Appeal from a judgment dismissing the complaint on the merits.

      Charles Steele, for app’lts ; Robert Q. Ingersoll, for resp’ts.
   Follett, J.

On the 5th of June, 1885, a judgment of foreclosure and sale was entered in this action, which has not been appealed from, or in any manner assailed, and it is binding on these litigants. Pursuant to this judgment the property was sold July 31, 1885, at public auction, to Edward S. Stokes, for $500,-000. Afterwards, a motion was made to set aside the sale on the ground that Stokes had refused to perform an oral contract made bv him with the reorganization committee to purchase the mortgaged property, as trustee, for the benefit of certain persons who had signed a reorganization agreement, dated in May, 1885. This motion was denied. Farmers’ Loan & Trust Co. v. Bankers’ & Merchants’ Tel. Co., 26 St. Rep. 161; 6 N. Y. Supp. 643; affirmed 119 N. Y. 15; 28 St. Rep. 613. Neither the judgment nor the sale can now be questioned. It was proved and found that Stokes orally assented to the terms of the reorganization agreement of May, 1885, and agreed with the committee thereby created to purchase the property, and hold it, as trustee, for the benefit of those who had signed the agreement. But it is found by the trial court, on undisputed evidence, that after the agreement was entered into and prior to the sale, the condition of the property had greatly changed for the worse, and its value had largely depreciated. The trial court found that, prior to the day of sale, the defendant Stokes notified the reorganization committee that he could not carry out his aforesaid oral agreement, and a modification thereof was thereafter arranged between the committee and Stokes, pursuant to which Stokes purchased the property. The evidence is that Stokes notified the chairman of the reorganization committee, on July 11, 1885, twenty days before the sale, that he could not carry out his agreement with the committee. This modified agreement was reduced to writing, and executed on the 7th of August, 1885, by the reorganization committee and by Stokes. It is not asserted that Stokes has failed to carry out the last mentioned agreement. It must be conceded that under the terms of the reorganization agreement of May, 1885, known as “ Exhibit H ” in this litigation, the committee had no power to modify the terms of that agreement, but the reorganization committee was made by the agreement the agent of the persons who signed it, for the purpose of carrying it into effect; and we think that the notification by Stokes to the committee that, by reason of the changed condition of the affairs of the corporation, he would not carry into effect the oral agreement previously made by him in respect to purchasing the property, was notice to the persons who had signed the agreement. In other words, the notice having been timely given, and in good faith, it was as effectual as though it had been given to every signer of the reorganization agreement. Had the notification given by Stokes been made under circumstances which indicated bad faith on his part or on the part of the committee, a different question would be presented. Stokes having refused to purchase the property under his oral agreement, founded on the reorganization agreement of May, 1885, but having purchased under a subsequent agreement, the plaintiffs are bound to accept one of two alternatives, either their pro rata share of the purchase price upon the sale, or the terms of the new or modified reorganization agreement. The opinion of the learned trial judge states with great clearness the facts involved in this litigation, and in the result reached we concur.

The judgment should be affirmed, with costs.

All concur.


text:
    Cordelia A. Martens et al., Resp’ts, v. Elizabeth H. Rightmire et al., App’lts.

      (Supreme Court, General Term,, First Department,

      Filed May 18, 1894.)

    Appeal—Evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiffs.

      Abram Kling, for app’lts; Christopher Fine, for resp’ts.
   Van Brunt, P. J.

This action was brought to have a deed of certain premises, executed by one Jane Post, declared void, for fraud, etc. After a trial of the cause, the court decided in favor of the plaintiffs, and from the judgment setting aside said deed this appeal is taken.

The question presented is entirely one of fact. It seems to be impossible to reconcile the dispute. Although, in many instances, the evidence is not directly conflicting, it is 'so inferentially. The record is somewhat remarkable, in view of the quantity of incompetent testimony which seems to have been introduced upon both sides; but even this evidence affords few trustworthy indications in respect to the issues involved. The case is one in which the appearance of witnesses, their manner of testifying, and the circumstances surrounding the trial, which cannot be photographed upon the record, may have been very convincing to the trial judge and where there is nothing to show, more clearly than appears upon this record, that the trial judge either misconceived or gave undue weight to the evidence, we do not think that his judgment should be disturbed. The judgment appealed from should therefore be affirmed, with costs.

All concur.


text:
    Elizabeth Fisher, Resp’t, v. William Rankin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Negligence—Independent contractor.
    The evidence, in this case, was held sufficient to show that the injuries were caused by the negligence of the owner, and not of an independent contractor.
    2. Witness—Credibility—Party.
    The credibility of the testimony of a party, though uncontradicted, is a question for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Robert E. Deyo, for app’lt; Christopher Fine, for resp’t.
   Parker, J.

The defendant purchased certain vacant lots, situate on Tenth avenue and Forty-eighth street, in November, 1883. The sidewalk in front of the premises was about 15 feet wide, but the only pavement consisted of a row of stone flagging about four feet wide. Thereafter he commenced the erection of buildings on the lot, and either constructed personally, or caused to be constructed by an independent contractor, a pavement covering the full width of the sidewalk. At the beginning of the latter work the stone flagging was taken up, and the earth excavated to a depth of between six and eight inches, for the full width of the sidewalk. While it was in this condition, and on the evening of July 15th, 1884, the plaintiff came down the.street, and, upon the place where the pavement had formerly been, fell, receiving severe injuries. The evidence bearing upon the question of contributory negligence was of such a character as to present a question for the jury. And appellant concedes that, if this court reaches the conclusion that the plaintiff was not guilty of contributory negligence as a matter of law, then, in determining whether the court rightly denied the defendant’s motion to dismiss the complaint, but one proposition need be considered. That proposition is presented by the'following extract from appellant’s brief: “Laying aside for the present any question of the contributory negligence of the plaintiff, there remains but one other question, viz.: Has the plaintiff given any evidence tending to show that the work was being done by the defendant or his agents ? If she has, she was entitled to go to the jury. If she has not, the complaint should have been dismissed, or a verdict directed for the defendant.”

When the plaintiff had proved that the defendant owned, and was in the actual possession of the property abutting upon this sidewalk; that he had dug out the cellars, and caused the erection of the buildings; that he visited the premises every day while the excavations were going on, sometimes a half dozen times each day ; that he saw men at work excavating the sidewalk and putting in the aslies, and was seen apparently giving directions to men at work both upon the buildings and the sidewalk,—she had made out, prima facie at least, that the work was being done by the defendant or his agents; and that the negligence, if any there was, was chargeable to him. There was nothing further she could have proved, except to introduce upon the witness stand every man who did any work on or about the sidewalk, and ask him whether he was doing this work as an independent contractor; and this she was not called upon to do in order to establish a cause of action. Having made out her prima facie case on., that point, the defendant had the right to show, if he could, that he was not responsible for the alleged negligent acts, because he had contracted with another to do the work. This he attempted. He testified that he had made a contract with one James Deering to do the work. He failed to remember whether the contract' was in writing, whether any one was present at the time it was made, and did not know what had become of Deering. That there was such a man as Deering, and that he worked on this property during the time the building was in progress, was quite satisfactorily proved. Whether he was one of the mechanics, a foreman of a gang of workmen, a superintendent of the entire work, or an independent contractor, no one pretended to know except the defendant, who testified that he was an independent contractor. Other witnesses were called for the purpose of proving independent facts, which the defendant regarded at tending, in some degree, to corroborate his testimony. Without his testimony, the evidence would not have permitted a finding that Deering was an independent contractor under defendant. Because of certain facts and circumstances proved, permitting a different inference than that contended for by the defendant, coupled with the further fact that the only evidence tending to show that there was a contract, and the terms of it, is furnished by the testimony of a party to the action, the court could not assume that it was proved, and dismiss the complaint on the ground that it had been made to appear that Deering, and not the defendant, was liable. Goldsmith v. Coverly, 75 Hun, 48; 56 St. Rep. 857, and cases cited. A question was therefore presented for the jury, and the court rightly denied defendant’s motion to dismiss the complaint.

The appellant urges that the court should have granted his requests to charge. It was not error for the court to refuse to charge that the sidewalk was being laid under lawful authority, because the court had already charged that plaintiff must recover on the ground of negligence, if at all. Upon that issue the instruction requested had no bearing, and, if charged, could have no other effect than to confuse the jury. It was not error to refuse to charge that, if the sidewalk was in a dangerous condition, the danger arose from the manner of carrying on the work, for the reason that the court had already properly and sufficiently instructed the jury with reference to the acts constituting the negligence alleged. Again, it was not claimed that the condition of the sidewalk leading to the injury was due to building operations on the abutting lot; hence there was no occasion for a specific instruction on the subject. Neither was it error to refuse to charge that the presumption was that a certain gas lamp situated within ten feet of where plaintiff fell was lighted. Plaintiff testified that it was dark when and where she fell, which it would not have been had the lamp been lighted.

A daughter of the plaintiff who went to the place- of the injury immediately after it happened, and with full knowledge of it, said: “ It was dark, and there was no lights there at all. I did not see any gas lamps or anything; no lights to warn you of danger. I did not look at the lamp pose, and it was dark.”

This' testimony the defendant sought ineffectually to put in issue by an instruction of the court that, wherever there is a gas lamp, the presumption is that it is lighted. We deem it not unsafe to say that no court has ever so held, nor ever will; certainly not until that time shall come when it is absolutely impossible to collect of municipal corporations for gas lamps that do not bum at night. Our attention is called to no other exceptions which we deem it necessary to consider.

The judgment should be affirmed, with costs.

All concur.


text:
    Robert J. Hoguet et al., App’lts, v. Ewald Mommer et al., Resp’ts

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Sale—Proof of delivery.
    The evidence to establish a delivery was held sufficient, in this case, to warrant the submission of this question to the jury.
    Appeal from a judgment dismissing the complaint.

      John H. Mann, for app’lts; S. B. Stiles, for resp’ts.
   Parker, J.

Two causes of action are alleged in the complaint, —the first for the recovery of $207.70 for goods sold and delivered, and the second for the recovery of $1,381.50 for goods sold and delivered. At the close of plaintiff’s case, the court dismissed l he complaint, and on this appeal the plaintiffs seek only to reverse so much of the judgment as relates to the second cause of action.

The plaintiffs’ contention on the trial was that their selling agent, Charles B. Boell, sold to one August Mahler, representing the defendants, certain goods, which were in part delivered to Mahler for the defendants, and the residue to the defendants at their place of business. The learned trial judge reached the conclusion that the plaintiffs had not only failed to establish the agency of Mahler, but, in addition, that they had not succeeded in proving that any portion of the goods were delivered to the defendants. We'agree with him in so far as he determined that the plaintiffs liad failed to furnish any such evidence of the agency as would entitle them to recover on proof merely that they had sold and delivered goods to Mahler. But as to a portion of the goods we think there was such proof of delivery as to entitle the plaintiffs, in the absence of a denial of their receipt by the defendants, to go to the jury on that question. Mahler was described by plaintiffs’ selling agent as a broker who, finding a purchaser for certain goods, would buy them in the name of the customer, to whom the goods would be delivered by the seller, accompanied by a bill. There was evidence that Mahler’s brother was a member of-defendants’ firm, and that Mahler had, or pretended to have, an office at their place of business. On several prior occasions he ordered of plaintiffs’ selling agent small quantities of goods for the defendants, which were delivered,'not to him, but to them, and in due course paid for them by their check. Plaintiffs’ selling agent knew that Mahler was not in the employ of the defendants, and his general course of dealing with him makes it apparent that he well understood the necessity of a delivery to the defendants, in order that their liability to respond should become assured. In the absence of the selling agent, however, Mahler succeeded in obtaining a delivery to himself of some portion of the goods which were the subject of the second clause of action, and as to them it was rightly held that there was no basis for a recovery. But we think the court assumed that all of the goods were delivered to Mahler, and overlooked the fact that there was evidence tending to show that some portion of them were actually delivered to the defendants. April 29, 1891, the plaintiffs’ agent claims to have delivered to the defendants some goods in the same manner as on previous occasions, which had resulted in checks from the defendants for the value of the goods delivered, as per bill accompanying them. Touching the delivery, James Campbell, plaintiffs’ truckman, who had delivered other goods to the defendants for plaintiffs, purchased under similar circumstances, testified: “A. In the first place I went to Boell’s. I called up the hatch to the porter if he had anything to go out. He said : ‘Yes; I have a case to deliver to E. Mommer & Co.’ ‘All right; send it down.’ It comes down in the elevator, and I take it down. I drive around to Mommer’s place. Sing up the hatch, ‘E. Mommer & Co.’ The elevator comes down with a man on it. Takes the case. I helped put it on the elevator. Takes the case and book upstairs. Leaves the case there, and comes down with the book. I drive away. I do not know Augustus Mahler. Q. Do you know the elevator man there ? A. Well, now, I couldn’t tell. Sometimes there is one man on an elevator, and the next time you go there is another man,— in all buildings, as a general thing. Elevator man may be off; may be called away. You sing out, and somebody who is in the habit of running it will come down, and take up your goods. Q. You have already testified this morning to the delivery of some goods on April 29th, and I ask you whether those goods of April 3rd were delivered by you in the same way as sucli goods testified about this morning. A. Yes, sir. I have never had a receipt signed at the door in Mommer's place. This book has always went up. Q. Always went up, and came back again signed? A. Yes, sir. Q. Have you frequently delivered goods to Mommer? A. Quite often. Q. Know the place well? A. Yes sir; know the place well."

Plaintiffs put said receipt in evidence as Exhibit N, as follows, the italics signifying the writing on a printed form :

“ New York, April 3rd, 1891.

“ Received from Oh. P. Boell, in good order, marked Mess. B. Mommer c& Go., 96 Grand-Street, the following packages : One (1) Case No. %]$. Delivered by Campbell. Signed X."

The “signature," so called, which was subscribed to the receipt on the book while it was upstairs, was not intelligible, and'neitber counsel was able to make it out; but as the truckman had concededly made deliveries for the plaintiffs before, to these defendants, in the same way, we think that, in the absence of evidence on their part that the goods in controversy did not come into their possession, the plaintiffs were at least entitled to have the jury say whether they were in fact delivered. The judgment should be reversed, and new trial ordered, with costs to the appellants, to abide the event.

Follett, J., concurs; Van Brunt, P. J., dissents.


author: Per Curiam.

text:
    Robert C. Black et al., Resp’ts, v. Henry McAleenan et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Bill of particulars—When rot required.
    In an action to recover goods delivered by plaintiff to a third person, to he shown to a proposed purchaser, the plaintiff will not be required to give a bill of particulars, stating the name, and address of the proposed purchaser.
    Appeal from an order granting a motion for a further bill of particulars giving the name, address, business and financial standing of the proposed purchaser of goods delivered to a third person to be shown to him.

      Joseph Fetiretch, for app’lts; George C. Comstock, for resp’ts.
   Per Curiam.

The name, address, business, and financial standing of the proposed customer are not particulars of-the plaintiffs’ cause of action, but are merely evidentiary facts, which the plaintiffs should not be required to disclose by a bill of particulars. The plaintiffs’ right of recovery would not be defeated or affected by the fact that Eustis gave the name of some person as a proposed customer who had not in fact proposed to purchase the necklace. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.


text:
    Hannah Springer, Resp’t, v. Robert E. Westcott, as President, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Carriers—Limitation of liability.
    Where the receipt for goods is introduced in evidence by the shipper for the purpose of establishing her case, in an action against an express company, a provision therein, limiting the amount of recovery in case of loss, is binding upon her.
    ■ 2. Appeal—Charge.
    Where express exceptions are taken to the refusal to charge a request which was contradictory to propositions submitted to the jury, the point as to such refusal is properly raised, though no exception was taken to such inconsistent portions of the charge.
    Appeal from, a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      A. G. Box, for app’lt; B. F. Btinslein, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the value of the plaintiff’s trunk and the contents upon allegations in the complaint that the defendant was an unincorporated association consisting of seven or more persons or associates, and that the defendant, Westcott, was the president thereof; that the business of said association was that of a common carrier of baggage for hire, and that it conducted' the business commonly known as an “express company” in and about the city of Hew York; and that on the 14th day of September, 1889, the plaintiff caused to be delivered to said association, and said association received, her trunk and its contents, at the Grand Central Depot in the city of Hew York, and then agreed to convey the same, for a reasonable compensation, to a place named in the city of Hew York, and there deliver the same to the plaintiff,; that the contents of said trunk consisted of baggage belonging to the plaintiff, and were of the value of $2,000 and upward; and that the said association omitted to convey said contents, and has never delivered the same to the plaintiff. The defendant, by the answer, denied the allegation of receipt and failure to deliver, and alleged that the plaintiff promised and agreed with defendant that she should deliver to it her trunk containing her wearing apparel, such trunk and wearing apparel not to exceed in value $100; and that, if said plaintiff would so deliver to defendant,, the defendant would carry and deliver the same to the place named in the complaint; and that such agreement was upon the term and conditions of a written contract annexed to the answer. The defendant further alleged that the plaintiff failed to deliver said trunk to the defendant at said station or at any other place. The plaintiff, to sustain the issues on her part, introduced evidence tending to show the value of the contents of the trunk, and the delivery to the agent of the defendant, upon a train of the Hew York central railroad, of a check which she had received from the railroad company at Troy; that at the time of the delivery of such check she received a receipt therefor, which receipt contains a limitation of liability to an amount not exceeding $100; and that, several days after, the trunk was delivered without any of its contents. The issues of fact being submitted to the jury, they rendered a verdict in favor of the plaintiff; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, this appeal is taken.

Various grounds are urged as error upon the part of the court in the trial of the cause. It is claimed upon the part of the appellant that there was no evidence to show that the defendant received the trunk on Saturday night, and, furthermore, that there was no evidence to show that the trunk was put upon the train at Troy, and therefore that the court erred in charging the jury that, if the defendant received the trunk Saturday night, then it was liable from Saturday night. From an examination of the evidence it will be seen that this objection is not well taken, and that the court was entirely correct in its assumption that the defendant did receive the trunk on Saturday night. John H. Green, the agent of the defendant who collected the checks upon the train, admitted the signature to the receipt, and stated that he got the check. He further stated that he passed it in to the grand central depot upon the same night, and that he did not give up the check without finding the baggage. This evidence is further confirmed by the testimony of the driver, Oavanagh, who says that he got the trunk on Tuesday morning, and, when he got it, found that it had already been labeled by the express company; clearly showing that the trunk had been in the hands of the defendant long before Tuesday morning, and that the evidence of Green that it had been received on Saturday night was correct, and that that was probably the time at which the trunk reached the defendant.

It is further claimed that the court erred in refusing to charge that the burden of proof was upon the plaintiff to show the circumstances attending the transportation of the trunk from the Troy House to the station of the railroad company at Troy. It is perfectly clear that this exception is not well taken. The husband of the plaintiff checked the trunk at Troy. It was then in good order. When it was delivered at the plaintiff’s house it was covered with dirt, muddy, the lock broken, the straps were hanging out, some of the compartments of the trunk had been taken out, and the trunk was almost empty. That this was not the condition of the trunk when it was received by the defendant is evidenced by the testimony of Oavanagh, the expressman, who says, in answer to the question: “ Q. Was the trunk all covered with' mud when you found it in the Grand Central Depot? A. It might be possibly soiled, more or less, from actual use, or the like of that. Q. Was there any mud or dirt on it? A. I don’t remember. Q. Were the straps broken ? A. To the best of my knowledge, it is so long ago, 1 don’t think, there were any straps on it. Q. Was the lock broken? A. Ho, sir.”

It is true that this witness swore that he delivered the trank in the same condition that it was when he received it. But it is manifest from the testimony of the plaintiff and her witnesses that such was not the case. It appears from the evidence of the defendant’s witness that there was nothing suspicious about the appearance of the trunk at the time it was received by the defendant, whereas it was in a dilapidated condition when it was delivered to the plaintiff.

The only question which is not disposed of by the foregoing suggestions is as to the refusal to charge the request that in “ no event can the plaintiff recover more than one hundred dollars.” As a part of the plaintiff’s ease, in order to establish the receipt by the defendant of the trunk in question, and to establish the contract of carriage, the plaintiff introduced a receipt which was signed by the agent of the defendant at the time of the delivery of the check, which contained a limitation of liability by reason of negligence, or otherwise, to an amount not exceeding $100. It is urged upon the part of the respondent that no error was committed in the refusal to charge this request; that this request was not relied upon by the defendant upon the trial of the case; and that the defendant'waived its rights, if it had any, under it. We fail to find any such waiver in the record. The receipt was introduced in evidence by the plaintiff; and the request to charge seems to have been duly made and duly excepted to. It is true that the court made charges to the jury which were inconsistent with this and other requests, and that no exceptions were taken to these portions of the charge. But there were express exceptions taken to the refusal to charge the request in question, which was contradictory to the propositions submitted to the jury. We understand that under such circumstances the defendant has a right to insist upon this point because of the refusal to charge, although he may not have excepted to the charge as made in so many words.

It is further urged that the request was too broad; that it was that in no event can the plaintiff recover more than one hundred dollars;” and that this, if charged, would have prevented the jury from finding for the plaintiff if the loss was occasioned by the misfeasance of the defendant or its agents, which finding would be justified by the evidence, and, conceding the existence of the contract, the defendant was not exempted from liability for such loss by the terms of the contract. This, we think, is placing an erroneous construction upon the request in question. There was no attempt to. recover against this defendant upon the ground of misfeasance, but simply because of a breach of its contract as carrier ; the contents of the trunk of the plaintiff being lost while in its custody, through its negligence. It was in view of this position of the plaintiff that this request was made; and its fair construction seems to be—and, in view of the nature of the charge of the court, was evidently understood to be — that no larger recovery could be had because of this contract. This case is presented in a different aspect from those cases in which it has been held that, without showing knowledge of the restriction, the contract would not be binding, because the plaintiff has introduced the contract herself, has endeavored to establish her case partially upon that contract, and cannot repudiate part of the contract, and claim the benefit of other parts of it. Therefore, when the plaintiff introduced this contract for the purpose of establishing her case, she became liable to all the terms of the contract, and the defendant was entitled to the benefit thereof. The suit appears to have been brought upon this contract, and not in tort for a wrong committed. In this-state of the record, much as we regret so to do, because we think justice has been done by the verdict, we are compelled to reverse the judgment, and the order denying motion for a new trial. The judgment and order should be reversed, and a" new trial ordered, with costs to the appellant, to abide the event.

All concur.


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    Ignatz Boskowitz et al., App’lts, v. Robert J. Behr, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Bills and notes—Agreement not to hold party liable.
    The verdict for defendant, in an action on a note, on the ground that he signed said note under an agreement that he should not be held liable thereon, was held, in this case, to be against the weight of evidence.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Edmond Wise, for app’lts; James Moffett, for resp’t.
   Parker, J.

Plaintiffs sold and delivered to Eeichard & Beltzer machinery at an agreed price of $1,606.83. Subsequently, Eeichard & Beltzer formed a partnership with Eobert J. Behr, this deféndant, under the firm name of Eobert J. Behr & Co., the machinery already mentioned, together with other partnership effects of the firm of Eeichard & Beltzer, becoming the property of the new firm. Thereafter plaintiffs obtained a note for the contract price of the machinery, bearing the firm name, and the signature of each of the individual members o£ the new firm, as makers. Not denying any of the facts so far as stated, the defendant insisted that there could be no recovery against him because of his testimony that his signature to the note was induced by the assurances of one of the plaintiffs that there would be no liability on his part, — that they would not look to him for the money. He testified, i n part, as follows: “When I came to the office, after being asked by Mr. Beltzer to call over to New York, that Mr. Boskowitz wanted to see me, I went to New York, and went into Mr. Boskowitz’s'office, and asked Mr. Boskowitz what he wanted to see me about, and he said: ‘I want you to sign this note.’ I stated to Mr. Boskowitz that I had nothing to do with that note, because I didn’t owe him anything. That was Mr. Adolph Boskowitz. He said: ‘You needn’t be afraid to sign that note. I won’t look to you for the money. I only want to show that these people are with you.’ And of course when he said that I signed the note, not thinking I would hold myself responsible for that amount of money on the note, because the bill was contracted on these people long before I went into partnership with them, and unknown to me, and this note only came up about the latter part of April, and I went into partnership the 1st of April. Q. After you. went into copartnership with these people,— after the 1st of April,— did they bring this note, or either of these partners of yours bring this note to you, and show it to you, after the partnership was commenced? A. Yes; the latter part of April,—about a month after. Q. How came you to go to Mr. Boskowitz’s office ? The Court: He has told that one of his partners asked him to go. Q. Did Mr. Boskowitz say anything about your assuming liability on this note? (Objected to. Objection overruled Exception.) A. Mr. Boskowitz said— When he asked me to sign the note. I told him that I didn’t owe him anything; so Mr. Boskowitz says: 11 know you don’t, but I simply want you to sign this note to show that these people are with you, and I can look to them. You need not be afraid. We won’t hold you responsible for it.’ And of course I signed it to oblige him. I signed it on that statement of his.”

Defendant’s statement of what took place, whether so intended or not, brings the case within the rule of Garfield Nat. Bank v. Colwell, 32 St. Rep. 929; 10 N. Y. Supp. 864, and justifies the submission made to the jnry. Curiously enough, the jury, in effect, found that they believed defendant's story. Whether the unfortunate result of the partnership, so far as the defendant was concerned, considered in connection with the fact that the plaintiffs had already obtained the avails of the partnership property under a judgment obtained against defendant’s partners, helped to persuade the verdict, we cannot, of course, know; but certain it is that their verdict was against the weight of evidence. We shall not attempt to support this assertion by an extended review of the events of the trial. Defendant’s testimony stands alone, unsupported by even a single corroborating circumstance. It is confronted by the note bearing defendant’s signature and the firm name, also subscribed by him; the books of the plaintiffs, showing the closing of the original account, and the opening of another against the new firm; the fact that machinery was turned over to the new partnership, and used by them, with knowledge on the part of the defendant that it had not been paid for, and that the note was given to secure the indebtedness; the testimony of one of the plaintiffs, who not only denied defendant's story, but stated the circumstances under which the note was signed by the defendant: and the evidence of Beltzer, the former partner of defendant, who not only said that the defendant understood, when the partnership was formed, that the machinery was yet to be paid for, but that he (Behr) told the witness and Reichard to sign the note, which being done, he took it, remarking that he would sign it, and give it to the plaintiffs. The exception taken to the refusal to set aside the verdict because against the weight of evidence was well taken.

The judgment should be reversed, arid a new trial granted, with costs to the appellants, to abide the event.-

All concur.


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    United States Illuminating Company, App’lt, v. Henry G. Fisk et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Contract—Use of electric lishts.
    An agreement to use plaintiff’s electric lights “to the exclusion of other electrical illumination,” does not absolutely require the defendant to use such electric lights, and a refusal to use them is not a breach of contract.
    Appeal from a judgment dismissing the complaint..

      J. W. Houston, for app’lt; JH. B. Kinghorn, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover damages for a breach of a contract entered into between the plaintiff and the defendants, by which the plaintiff agreed to furnish, and the defendants agreed to use, electric light upon the premises occupied by the defendants at the time of the making of the contract,— Ho. 686 Broadway, in the city of Hew York. On the 23d of July, 1889, said contract was entered into, whereby the plaintiff agreed to wire the premises Ho. 686 Broadwav, and to supply an electric current for a number of incandescent lamps for a term of three years from the time at which the connection therefor was made, and the defendants agreed to pay, for the light used each month, a certain rate fixed by the contract. Subsequently, in September, 1889, the plaintiff and defendants entered into another contract for additional lamps, upon the same terms and conditions as the original contract; and on the 31st of March and the 26th of June, 1890, certain other contracts were entered into, of like purport. On the 1st of February, 1891, the defendants removed from the premises 686 Broadway, and refused to use electric lights on said premises. It was claimed by the plaintiff that thereby the defendants broke their said contract, to the damage of the plaintiff; and the question presented is whether the discontinuance, upon the part of the defendants, of the use of electric light upon these premises, was a breach of the contract. We think it was not. The forms upon which these contracts were made were printed, and they originally contained a provision that the lamps furnished by the plaintiff were to be used to the exclusion of other artificial illumination ; and this was changed in the contract in question, to the words “to the exclusion of other electric illumination.” There is no claim that, upon the premises in question, any electric illumination except that of the plaintiff has been used by the defendants during the term in question. The defendants, under the contract, had the right to use other artificial illumination,—to what extent there is no provision contained in the contract,—and were to pay only for electric illumination to the extent to which such illumination was used. This being the nature of the contract, and the necessary construction which must be placed upon the provision for use which was agreed to by the defendants, it is difficult to see why they were not permitted to discontinue the use of electrical illumination if they so desired. As has already been observed, the prohibition was against other electrical illumination, and necessarily implied the right to use other artificial illumination.

It is urged that the defendants’ contention that, by reason of phrase, “to the exclusion of other electrical illumination,” they are relieved from any promise to use the lamps at all, is contrary tc the rule of construction which requires that a contract should not be made nugatory by a liberal construction of an exception. But the difficulty with this claim is that, under the construction claimed upon the part of the plaintiff, the court is called upon to make a contract which the defendants have not agreed to. All that defendants have agreed to do is that they will not use other electrical illumination on these premises, and, as they have the right to use such other artificial illuminations as they please, it is difficult to see why any obligation is to be found in the contract which requires them to use any electrical illumination at all, if they desire to use other artificial light.

It is further urged that, as the word “electrical” was inserted for the benefit, and presumably at the request, of the defendants, their contention is contrary to the rule of construction which requires that, in case of doubt, language should be construed most strongly against the party in whose favor it was used. It being conceded that the word “electrical” was inserted for the benefit, and at the request, of the defendants, it is perfectly apparent that they supposed that they were getting some privilege by reason of its insertion, and of the change from the word “artificial” to the word “electrical.” But, under the theory advanced upon the part of the plaintiff, notwithstanding this alteration, the contract is to read the same as though no such change had been made. It is evident that, in the framing of these contracts, the purpose of the plaintiff was to make them absolutely binding upon the party with whom the plaintiff contracted, but that the plaintiff should be under no obligations whatever, if any, they were to be of the most uncertain and ephemeral character. The defendants, when requested to make a contract of this description, evidently refused, and demanded that they should have the right to use other artificial light if they pleased; and all that they would consent to contract for was that they would not use other electrical illumination, which there is no evidence that they have done. We are of opinion, therefore, that there was no breach of the contract upon the part of the defendants, and consequently that no cause of action was made out by the plaintiff, and the complaint was properly dismissed. The judgment should be affirmed, with costs.

All concur.


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    Rosa Flood, App’lt, v. Sarah Cain, Individually and as Guardian, etc., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Gift—Causa mortis—Burden of proof.
    The burden of proof, in an action to set aside a deed on the ground that it was a gift causa mortis, is on plaintiff to establish such fact.

      2. Appeal—Case—Statement.
    A question of fact will not be"reviewed in the absence of a statement in in the case that it contains all the evidence.
    Appeal from, a judgment dismissing the complaint on the merits.
    Brooke, O'Sullivan & Brooke, for app’lt; James O'Neill, for resp’ts.
   Follett, J.

By a deed dated September 30, 1881, acknowledged November 19, 1884, and recorded January 27, 1885, the plaintiff conveyed certain real estate in the city of New York to Peter Cain for the recited consideration of one dollar. From that ■time on, the grantee retained the title, and collected the rents, through the plaintiff, until January 7, 1890, when he died devising the property to the defendants in this action. On the 15th of ■October, 1890, this action was begun, seeking to set aside the conveyance upon the ground that it was executed by the grantor in apprehension of death, and that the grantee agreed to reconvey it to her in case she survived. It will be observed that nearly six years elapsed between the date of the deed and the death of the grantee, and no proceedings were taken to compel a reconveyance. The only question in this action is one of fact,—whether the conveyance was a deed of gift in anticipation of death. The parties to the deed were brother and sister, and it appears from the record that for several years preceding the death of Peter Cain they had various transactions in respect to their property,—conveyances from one to the other. The burden of establishing that this was a conveyance causa mortis was upon the plaintiff. The learned judge at special term held that, upon the evidence, the plaintiff .failed to establish the cause of action alleged in her complaint. Assuming that all of the evidence given upon the trial is contained in the record, we cannot say that this decision is contrary to the weight of evidence. But there is an insurmountable difficulty in considering the question as to whether the decision is contrary to the weight of evidence. So far as we can discover, the case contains no statement that it contains all of the evidence, and, in the absence of such a statement, this court will not review a question of fact, The case does not seem to have been settled .and ordered filed by the trial judge, and, no error appearing in the judgment roll, the judgment should be affirmed, with costs.

All concur.


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    The People ex rel. John Miller, App’lt, v. The Justices of the Court of General Sessions, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Mandamus—Y eteuans.
    A mandamus to reinstate a court attendant on tbe ground that he was an honorably discharged soldier, will not be granted eight months after the discharge, where no previous efforts were made for reinstatement.
    Appeal from an order denying application to reinstate relator as court attendant.

      "Wm. Doll, for app’lt; Theo. Connoly, for resp’ts.
   Van Brunt, P. J.

The relator, who claims to be a veteran, was formerly a coart attendant in the court of general sessions; and on the 31st of March, 1893, he was removed from his position by the judges of the court, without charges, and without a hearing had, which the relator claims to have been in violation of law. In December following, the appellant made a motion for a mandamus directing the court of general sessions to reinstate him as a court attendant. In his affidavit he alleges, in addition to the facts hereinbefore stated, that he has since been prevented from discharging the duties of the office to which he was appointed by the said judges; that upon his removal he demanded his retention in said position on the ground that he was an honorably discharged Union soldier, and offered proof of such fact, and demanded his reinstatement on that ground, but such judges have since neglected and refused to so reinstate him. In answer to the application, all the judges of the court of general sessions made affidavit that the appellant had not any tizne demanded his retention in his position upon the ground that he was an honorably discharged Union soldier, or offered any proof of the fact, or ever demanded his reinstatement on such grounds, and denying that he had ever been prevented from performing his duties, except by his discharge. Upon this state of facts the motion was denied, and from the order'thereupon entered this appeal is taken.

Without considering any of the questions which are attempted to be presented oil this appeal, we think the motion was rightly denied upon the ground of laches. The relator was discharged on the 31st of March, 1893, and waited eight months before making any application for reinstatement. It respect to writs of certiorari, the statute of limitations is four months; and we see no reason why a party claiming the offices of the court, by way of mandamus, to reinstate him into a position from which he claims to have been unjustly discharged, should be allowed to wait an indefinite time before asking for the enforcement, of his rights by this summary procedure. If the relator claimed to have been unjustly removed, it was his duty to proceed with diligence, in order that the respondents might have been apprised of the claim advanced. But the appellant waited eight months before making any move whatever, and we do not think that this summary writ should issue at this late day:

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


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    E. W. Bliss Company, Limited, App’lt, v. United States Incandescent Gas-Light Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    ■Oonteact—Norf-PEBEOBMASTCE.
    Where, in an action _ for the price of dies to be used in making gas burners like a sample given, the plaintiff’s witness, on cross-examination, stated that the dies would not make burners like the sample, the complaint is properly dismissed.

      Appeal from a judgment dismissing the complaint.

      H. P. /Siarbuck, for app’lt; 0. W. Oreen, for resp’t.
   Van Brunt, P. J.

This action was brought to recover for work, labor, and services performed, and material furnished, under a contract made by the defendant with the plaintiff. The answer of the defendant consisted substantially of a general denial, and a counterclaim of damage because of failure to comply with the contract to perform certain work and furnish certain material. Upon the trial of this action, evidence was introduced upon the part of the plaintiff to establish the making of a contract for the doing of certain work and the furnishing of certain materials for a price named therein. It was claimed, however, upon the part of the defendant, that the plaintiff had failed to establish by its evidence a compliance with its contract, by the manufacturing of the goods anti offering them for delivery.

The only question it is necessary to consider upon this appeal is, has the plaintiff established by the evidence introduced by it upon the trial of this action that it has manufactured the goods called for by the contract? We think upon the examination of the evidence that there is no proof sufficient to establish the affirmative of this proposition. The contract which was entered into by the plaintiff and the defendant was for the manufacture of certain dies and tools necessary for the construction of gas burners, which seems to have been the business in which the defendant was engaged. After considerable correspondence, which resulted in the acceptance of the order of the defendant by the plaintiff, on the 29th of July, 1890, the plaintiff wrote to the defendant, in reply to its letter asking plaintiff what was necessary for the beginning of the work, that it would require drawings and a sample burner. On the 7th of August, 1890, the defendant replied to this letter, stating: “Referring to your estimate for making tools for our Nos. 3 and 4 burners, submitted July 15, 1890, would say same is accepted, to be made per drawings and samples left with you this day,” etc. After same further delay in reference to a guaranty, the plaintiffs commenced to manufacture the tools, which they claim to have finished on the 28th of October. It was, however, urged upon the trial, as above stated, that they never produced dies which would make a complete burner, as required by the contract. It is claimed upon the part of the plaintiff that it” was not required to produce dies which would make a complete burner. But, upon an examination of the evidence, it would appear that a complete burner was left as a sample; and, by the correspondence already referred to, it seems that the parties had in mind the manufacture of the tools for the making of a complete burner, because it appears from this correspondence that a sample burner was asked for and left with the plaintiff as a pattern from which it was to work. It is true that the witness Ilart testifies that he saw all of the articles mentioned in the contract completed, every one of them, and that they are in the possession of the plaintiff at the present time. But he also testified, upon cross-examination, that the sample mentioned in the letter quoted was a burner, although he did not know that it was a complete burner; but the dies and tools referred to by him would not make that kind of a burner,—not as complete as the burner shown to him. Then the question was asked: “ Q. So that the dies will not make samples as complete as that burner which was shown you on that day? A. Ho. Q. And the dies which have been finally completed, and are down stairs on that truck here to-day, wouldn’t make that kind of a burner ? A. Ho.”

He further testified: “ I have that sample burner that was left with me by Mr. Montgomery; that is, some of the parts are here. All the parts that were left with me by Mr. Montgomery are here. It was necessary to destroy the burner in order to take it apart. He gave me a complete burner, which I subsequently took apart. I believe we have here all of that complete burner that was furnished me. There may be a part missing; I can’t answer that. I have here the products of the dies which will duplicate every piece of that burner as he gave it to me. I said a moment ago that there might be some part missing of the original. I haven’t in court the original sample burner that Mr. Montgomery gave me. Mr. Montgomery may have taken it away with him, I have no recollection of that. I don’t know where it is. The parts I have will not make a complete burner; that is all I can say. I know that they will not make a complete burner.”

It is evident from the testimony of the witness Hart that a burner was furnished to the plaintiff as a sample which it understood it was to make the tools by which it might be reproduced, and that such tools were not constructed by the plaintiff. Under such circumstances, it is clear that there was no foundation for a recovery by the plaintiff, and the court below was right in dismissing the complaint.

The judgment should be affirmed, with costs.

All concur.