text:
    CAMDEN C. DIKE and THOMAS SCOTT, Respondents, v. ALBERT H. REITLINGER and others, Appellants.

      Sale of goods to arrive, with a warranty as to quality — does not render the sale conditional- — right of the vendee to sue for a breach of the warranty.

    The defendants agreed to sell to the plaintiffs “ 110,000 lbs. Russia camel’s hair, to arrive from Europe. . . . Hair to be equal to sample.” The hair intended to be sold arrived and was tendered to the plaintiffs, who refused to receive it, on the ground that, it was inferior to the sample shown to them, and thereafter brought this action to recover damages for the breach of the contract.

      Held, that the stipulation that the goods should be equal to the sample was not a substantive part of the agreement, and did not render it conditional upon the arrival of goods of the prescribed quality, but amounted to an express warranty of the quality of the goods sold, for a breach of which the plaintiffs were entitled to recover.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.
    On December 6, 1879, the defendants agreed to sell on arrival about. 110,000 pounds of camel’s hair to plaintiffs, at 15% cents per pound. The agreement was evidenced by a broker’s note in the following words:
    “ Sold for Messrs. A. H. Reitlinger & Co. to Messrs. Dike Bros, about 110,000 lbs. Russia camel’s bair, to arrive from Europe, at fifteen and three-eights (15%) cents per lb. Terms, net cash. Buyer to remove the hair from the dock upon arrival. Hair to he equal to sample of 762 hale lot. Broker to decide. Tare actual. Broker to examine each bale before weighed.
    “ PATRICK EARLEY,
    “ Broker.
    “New York, December 6, 1879.”
    The evidence shows that the “762 bale lot,” referred to in the broker’s note, was a lot which Farley bad previously sold for tbe defendants to one Higgins. The defendants expected some more of this same kind of hair to arrive from Hamburg, and offered to sell the 110,000 lbs. of it on its arrival. About a week after the 762 bales had arrived and been delivered to Higgins, the defendants notified the broker of the arrival of about 43,000 lbs. of the additional quantity, and requested an examination of it. The broker made the examination and found the quality entirely different from the “ 762 bale lot ” sold to Higgins, and. rejected it. The defendant Reitlinger was seen, and he said that “ if Mr. Hike didn’t take that hair, he had no other hair for him if he wouldn’t take that hair or such hair, he had no other hair— no other hair except that quality.” About January 17, another lot of some 23,000 lbs. arrived. This was examined and found to be the same as the first lot of 43,000 lbs. The plaintiff refused to-accept the hair.
    On January 28 this action was commenced. It was tried on April 15, 1880, and a verdict rendered for plaintiffs for $3,500.

      B. F. Tracy, for the appellants.

      F. A. Ward, for the respondents.
   Gilbert, J.:

The sold note in this case is an executory contract, for the sale of goods “ to arrive.” The words “ to arrive ” import a condition that if the goods do not arrive the vendors shall not be bound by the contract. The extrinsic evidence shows that the contract had reference to goods belonging to the defendants, then in Hamburg, or in transit from that city to New York, a sample of which had been exhibited to the plaintiffs. The contract also contained a stipulation that the goods should be equal to the sample. The main question arises upon the effect to be given to that stipulation. Is it a substantive part of the vendor’s agreement to sell, or is it a collateral undertaking amounting to an express warranty of the quality of the goods ? We are clearly of opinion that it is the latter.

The import of the contract is that the vendors agreed to sell goods i/n esse of which they were owners, provided they arrived, and that they warranted such goods to be equal to the sample. The evidence shows,.that goods of an inferior quality did arrive and were tendered to the plaintiffs in performance of the vendor’s agreement, the vendors announcing at the same time that they had no goods of a better quality. We are of opinion that those acts constituted a breach of the contract of sale by the vendors, and entitled the plaintiffs to recover. (Simond v. Braddon, 2 C. B., N. S., 324; Jones v. Just, 3 L. R., Q. B., 197; Cleu v. McPherson, 1 Bosw., 480.) No complaint of the measure of damages applied has been made.

The defendants, upon the authority of Shields v. Pettie (4 N. Y., 124), insist that the contract of sale was conditional not only upon the arrival of the goods, but also upon their turning out to be of the prescribed quality. In that case • there was no express warranty. The contract was for the sale of No. 1 iron, that description having been used as a designation of the goods intended, and which also indicated the quality of them. The court held that the iron called for by the contract did not arrive, and the contract was at an end. The remark that the iron was of a different quality, simply emphasized the statement that the iron which did arrive was not the Ron called for by the contract. In such a case, the contract is at an end, fór the reason that the condition on which the vendor’s liability depends has not been fulfilled, and the vendee cannot be compelled to accept goods of an inferior quality. In other words, there was no breach of the contract of sale by the vendors, by reason of the condition, and the vendees were not bound to accept goods which they had not agreed to buy. But an express warranty is collateral to the principal contract, and the rule is well settled that the buyer may reject the goods and sue for damages for a breach of the warranty. Indeed, he may receive the goods tendered in some cases without forfeiting his right to recover. (Per Hogeboom, J., Reed v. Randall, 29 N. Y., 374; Rust v. Eckler, 41 Id., 494; Day v. Pool, 52 Id., 416; Parks v. Morris Ax & Tool Co., 54 Id., 586.) But a vendor cannot, in any case, set up his own breach of warranty in discharge of his liability under the contract. The plaintiffs were not bound to perform or offer to perform the contract after the defendants had declared their inability to perform it. Such act would have been useless, and the law does not squire mere formalities in such a case. There was, perhaps, a slight inaccuracy in the charge of the judge, that the defendants had undertaken that the shipment was engaged, and if it was not, and the . goods were not shipped, then there was a breach of the contract. But I do not see how the defendants could have been injured thereby. The judge plainly referred to goods of the description specified in the contract. The contract could not be performed without a shipment of the goods, and it was immaterial whether the breach was attributed to an omission to ship goods such as the contract called for, or to deliver them. These remarks were not pertinent to the facts of the case, and subsequent portions of the judge’s charge directed the attention of the jury to the real points in the case. I think the jury could not have understood that a breach of the contract arose from the non-shipment of any goods, whén it was undisputed that the defendants had received goods which had been shipped, and had tendered them to the plaintiffs. If the proposition meant that a refusal to send the goods sold forward for delivery was a breach of contract, it was only another form of stating that a refusal to deliver was a breach thereof. The remarks already made, if correct, dispose of the other exceptions taken to the judge’s charge, and to his rulings upon the numerous requests to charge, presented by the defendant’s counsel, as well as those taken to the rulings upon the trial.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.: Gilbert, J.,

license: Public Domain

text:
    GEORGE HARRIS, Plaintiff, v. JOHN S. PERRY, NATHAN B. PERRY and ANDREW DICKEY, Defendants.

      Negligence — when the jury may find, the plaintiff to have been free from contributory negligence.

    The defendants, wholesale dealers in stoves, occupied the upper stories of a building in New York city, for the storage of stoves, and received orders for and delivered them in the basement. An elevator, used by the defendants and other occupants of the building, ran from the upper story to the basement, and into a pit made in the floor thereof. The plaintiff, who had ordered some stoves in the morning, came in the afternoon to get them, and finding no one to attend to the matter in the basement, went to the elevator to call up to some one in the upper story, and in so doing fell into the elevator pit and was injured. The basement was dark, and there were no guards around the pit. The plaintiff had been there before and knew where the elevator was situated, but did not know of the existence of the pit. When there before, he had found a guard around the place where the elevator descended.
    In an action by him to recover damages for the injuries so sustained, Held, that the question of the plaintiff’s contributory negligence was properly left to the jury, and that a verdict in his favor would not be disturbed. (Gilbert, J., dissenting.)
    Motion for a new trial on a case and exceptions, ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff.
    Tbe action was brought to recover damages for injuries sustained by tbe plaintiff in falling into an elevator pit in tbe basement of a building occupied by tbe defendants.

      S. D. Morris, for tbe plaintiff.

      Hamilton Harris, for tbe defendants.
   Barnard, P. J.:

Tbe proof of negligence upon tbe part of tbe defendants is sufficient. They were stove dealers at No. 84 Beekman street, in tbe city of New York, and occupied tbe upper stores of tbe building. In tbe basement they were accustomed to receive orders for goods and to deliver goods from there.

Tbe first story of tbe building was occupied by Hayden & Go. There was an elevator, extending from tbe basement to defendants’ rooms above, which was used by both defendants and Hayden & Go. Tbe elevator pit extended below tbe basement floor. Tbe plaintiff, in May, 18Y8, went to tbe basement to get goods he had ordered from defendants, and found no one to deliver tbe goods. It was dark in tbe basement, and tbe plaintiff, in attempting to get to tbe elevator, to call through it to some one representing defendants, to come and deliver tbe goods, was precipitated into tbe pit and much injured. There was not sufficient light to see, nor was there any attempt to close the pit. The defendants, both by the common law and by the statute (Laws of 1874, ch. 547), were bound to use reasonable care and diligence in guarding against the danger from this open pit which sunt beneath the floor of the premises ; there was no guard; there was no sufficient light; there were no chains to prevent one from, falling in. The question of the contributory negligence upon plaintiff’s part was properly left to the jury. This is the general rule. (Thurber v. Harlem Bridge, Fordham & Morrisania R. R. Co., 60 N. Y. 326,) If the finding upon this question had been different from what we believed to be the true result of the evidence, it would not be proper upon appeal to reverse if there was merely a conflict of evidence. There is nothing from which we can say that in this case the jnry have not found correctly. The plaintiff was guilty of no neglect; he went to get his goods in tne place from which he had been accustomed to get them ; he found no one to answer him ; the place was dark and he knew of the elevator, but not that it extended below the basement floor; he attempted to communicate through the elevator opening above and was precipitated below the basement floor. He had the right to assume that the premises had no piciall.

Judgment affirmed, with costs.

Dykman, J„ concurred.

Gilbert, J.,

dissenting:

Assuming that negligence on the part of the defendants was proved, the question remains, whether, from all the evidence on both sides, the inference can be justly drawn that the plaintiff exercised that degree of care and caution which the law requires to absolve a party from the imputation of contributory negligence. The rule of law upon this subject is well settled. A plaintiff who seeks to recover damages for a personal injury sustained through the negligence of another assumes the burden of proving — 1. That the negligence of the defendant caused the injury. 2. That he, the plaintiff, was free from fault which contributed to the injury. It is not enough to prove one of those propositions. Both must be established, otherwise it is the duty of the court to nonsuit the plaintiff. (Cordell v. New York Central & H. R. R. R. Co., 75 N. Y., 330.) The counsel for the plaintiff has not referred us to •any evidence tending to show that the plaintiff exercised any care or caution whatever to avoid the accident which happened to him, but relies upon the verdict of the jury, in favor of the plaintiff. That will hardly do; the defendants moved for a nonsuit when the plaintiff rested, and again at the close of the testimony, and exceptions were taken, to the denial of ‘those motions. It was error to deny those motions, unless there was evidence in the case sufficient to authorize a finding that the plaintiff was free from negligence on his part. Negligence consists in doing something which a man of ordinary prudence would not have done in the circumstances in which the plaintiff was placed, or in the' omission of something which a man of ordinary prudence would have done in the circumstances mentioned, and when the circumstances point just as much to the negligence of the plaintiff, as to its absence, or point in neither direction, the plaintiff should be nonsuited.” (75 N. Y., supra.)

The plaintiff was injured by falling through an opening in the floor of the basement of a store, occupied by the defendants and ■other tenants. The opening was made for the purposes of an elevator, running from the cellar through similar openings in the floors above to the upper stories of the building, and had been in use for a considerable period. The defendants were wholesale dealers in stoves and the plaintiff was one of their customers. The plaintiff had made a purchase of goods of the defendants on the day of the accident, which was May 27, 1878. Between five and six o’clock on the afternoon of that day he returned to the defendants’ store to get the goods which he had purchased; what followed was related by the plaintiff as a witness upon the trial. “ When I entered the room, there was no one in it except the carman, and not finding any one there to deliver the goods I was in pursuit of, I went to the elevator to call some one from up stairs, and that is as far as my memory serves me.” He stated also that the room was pretty dark, that the elevator was in a place which was imperfectly lighted, and that when the accident happened the usual guard or barrier connected witli the elevator was not in its place; that he knew the situation of the elevator, but that he had never noticed that it extended below the floor of the room from which, he fell. Upon cross-examination the plaintiff testified that he had been'several times to the elevator at the same place, and called to people in the stories above, and had received answers from them. That the guard which he frequently found at the elevator was a chain or bar of wood across the opening, andffhat when he went to the elevatorio speak to some one above, the platform of it must have been up.

The carman referred to was the only other person present when the accident happened. He saw nothing of it, and had no knowledge how it happened.

”We are of opinion that the testimony furnishes no proof that the plaintiff exercised any care whatever to avoid the accident.

On the contrary, we think that the only inference that can be fairly drawn from the evidence is that the plaintiff, while in the act of calling through the opening to some one above, or while listening for a reply, lost his balance and fell to the cellar beneath. His-statement that he had not noticed that the opening extended into the cellar does not relieve him from the imputation of negligence. The guard which he had frequently seen was a palpable indication that there was an opening in the floor on which he stood, and that the purpose of the guard was to protect persons against the danger of falling through the opening. The effort made on behalf of the plaintiff to show that there were trap-doors in the floor, by which the opening might be closed, was a failure. But whether there-were trap-doors or not, the plaintiff showed great carelessness in disregarding the admonition afforded by the absence of the usual guard, and approaching the elevator without ascertaining whether the opening in the floor was closed or not. The leaving the guard down, no doubt, was an act of negligence on the part of somebody, but it would be hard to treat such an act as an invitation to the-plaintiff to forego ail care of himself, or as an assurance that the-removal of the guard removed the danger of the opening — such a. conclusion would practically abolish the rule respecting the legal effect of contributory negligence.

The plaintiff’s familiarity with the elevator., renders the cases-relating to injuries suffered by persons who had been licensed or invited to come on defendants’ premises, in consequence of concealed openings in the fioors 'thereof, inapplicable. Nor does the defendants’ violation of the statutory requirement to keep the elevator secure, excuse the plaintiff’s negligence. (Sh. & Red. on Neg., § 591.)

The exceptions should be allowed, and a new trial granted, with costs to abide the event.

Exceptions overruled, and judgment for plaintiff upon the verdict, with costs.


author: Gilbert, J.:

text:
    PETER H. YOUNG, Appellant, v. CAROLINE C. CUDDY and SARAH LINDERMAN, Executrices, &c. of SAMUEL McLAUGHLIN, Deceased, Respondents.

      Ref&rence of disputed claims against an estate — power of the cowrt to set aside a-judgment on a motion made upon a case — 2 R. 8., 88, §§ 36, 37.
    Where a judgment lias been entered upon an order confirming the report of a referee, to whom disputed claims against an estate have been referred in pursuance of sections 36 and 37 of 2 B. S., 88, the court may, upon amotion made upon a case prepared and settled as required by the Code of Civil Procedure, set aside the judgment and grant a new trial.
    Appeal from an order made at Special Term, setting aside a referee’s report, vacating a judgment entered thereon, and directing a new trial. The plaintiff’s claim against the defendant’s decedent was referred under the statute. The referee reported in favor of the claimant. No motion was made to confirm the report, but a motion was made by the representatives of the estate to set it aside. This was denied, and the report was thereupon formally confirmed and judgment entered thereon. The defendants then procured the settlement of a case containing exceptions, and moved for and obtained the order now appealed from.

      William J. Groo, for the appellant.

      M. S. HvrscJiberg, for the respondents.
   Gilbert, J.:

References of disputed claims against executors, pursuant to 2 R. S., 88, 89, §§ 36, 37, are “ special proceedings.” (Code Civ. Pro., §§ 3333-4.) Tlie provisions of the Revised Statutes regulating sucb proceedings bave not been repealed by tbe Code of Civil Procedure. Tbe general practice prescribed by tbe latter statute, relative to trials before referees, applies to the jiroceedings in this case. Sucb is tbe express provision of section 37, cited. In addition, that section provides that tbe court may set aside tbe report of tbe referees, or may confirm it. In tbe case before us tbe report was confirmed and judgment was entered thereon. Then a case was made in accordance with tbe practice prescribed by tbe Code of Civil Procedure, and a, motion was made thereon to set aside tbe report and tbe proceedings subsequent thereto, and for a new trial. Tbe motion was granted. Tbe practice thus pursued seems to bave been necessary to preserve tbe legal rights of the parties. Por upon a motion to confirm the report of referees in a proceeding like that before tbe court, a review of -the report upon tbe evidence is not usual or proper. (Eaton v. Benton, 2 Hill, 578.) A judgment follows, of course, upon tbe confirmation of tbe report. Nor could a judgment contrary to tbe report be rendered. (Coe v. Coe, 37 Barb., 232.) An appeal from tbe judgment without a case would bave been ineffectual. Tbe first section of chapter 270 of tbe Laws of 1854 provided for appeals from any judgment, -order or final determination in special proceedings made at a Special Term. Under that statute it was held that a motion to set aside tbe referee’s report was necessary, before an appeal could be taken from tbe judgment. (Somerville v. Crook, 9 Hun, 666.) But that necessity, if it ever existed, ceased when section 1 of chapter 270 of tbe Laws of 1854 was repealed. (L. 1877, ch. 417, § 28.) To obtain a review of tbe report, therefore, a case containing' exceptions, made conformably to tbe Code of Civil Procedure, was necessary. (§§ 994, 997.) An appeal may now be taken from the judgment (Code Civ. Pro., § 1346), and tbe case, on being annexed to the judgment-roll, would be brought up by sucb appeal. Tbe practice indicated would bave been regular in tbe instance before us. Still, tbe power to set aside tbe report given by section 37 ■of tbe Revised Statutes cited, remains, and as an incident thereof, the power to vacate the judgment exists. While, as a general rule, those powers should not be exercised, but parties should be required to pursue the prescribed practice, yet, as justice was promoted by the order appealed ■ from, we think it should be affirmed without costs.

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

Order setting aside referee’s report and granting new trial affirmed, without costs.


text:
    CATHARINE M. CARLETON, Respondent, v. DAVIS CARLETON, Appellant.

      Service of summons by publicationr-^hat is sufficient evidence of inability to find the defendant within the State — Oode, § 185.
    On an application for an order directing the service of the summons by publication, in an action commenced in July, 1877, an affidavit was presented which alleged “that the defendant has not resided within the State of New York since March, 1877.”

      Held, that this allegation was sufficient evidence of the plaintiff’s inability after due diligence, to find the defendant within the State, and was sufficient to confer jurisdiction upon the court to make the order.
    Appeal from an order, made at Special Term, denying a motion to set aside a decree of divorce entered in,this action.
    This was an action for divorce. The action was commenced by the publication of the summons. The first publication of the summons was on July 22, 1877. Judgment was obtained and docketed October 11, 1877. The parties resided in Camden, Oneida county. The . place of trial was laid in Kings county, in which county all the proceedings were had. The plaintiff’s attorney resided in the city of New York.'
    The affidavit upon which the order for the publication of the summons was granted reads as follows:
    ‘£ Catherine M. Oarleton, plaintiff above named, being duly sworn, says that this action is brought for divorce, and that a cause of action exists in her favor against the defendant above named,, the grounds of which are as follows:
    “ The defendant, in the month of June, 1872, committed adultery, and had carnal connection with one Fillis Ford, at Orwell,. Oswego county, New York, without the knowledge, consent, privity or procurement of plaintiff. That plaintiff has not condoned said offense, and has not cohabited with defendant since the commission by him of said act of adultery was known to her. That, defendant has not resided within the State of New York since March, 1877, and deponent is informed and believes that defendant, is now a resident of San F ncisco, California.”

      S. Grorrmell, for the appellant.
    The validity of the order for the publication of the summons must be judged solely upon the sufficiency of the affidavit upon which it was granted. The following are some of the cases reported in the books, which will fully sustain the foregoing: Hallett v. Righters, 13 How. Pr., 13 ; Kendall v. Waslibivrn, 11 Id., 380; Yam Wyck v. Hardy, 11 Abb. Pr., 173-176; Wortmam v. Wortmam, 17 Id., 66; Pechar. Gooh, 11 Barb., 519; Easterbrook v. Easterbrook, 61 Id., 121; Waffle v. Goble, 53 Id., 517 ; Evertson v. Thomas, 5 How. Pr., 15 ; Bixby v. Smith, 3 Hun, 61; Towsley v. McDonald, 32 Barb., 601; Howe Machimo Go. v. Pettibone, 71 N. Y., 68. All the foregoing cases and decisions, and each of them, hold that the fact of non-residence alone is not sufficient to authorize an order for the publication of the summons. In addition to the fact of non-residence, it must be shown by affidavit that after due diligence the defendant cannot be found within the State.

      William Kernam, for the respondent.
    The complaint and affidavit upon which the order for publication of the summons was granted were sufficient. (Code of Pro., § 135; Ya/rnam v. Holbrook, 5 How. Pr., 3; Roche v. Ward, 7 Id., 116 ; Yam Wyck v. Hardy, 20 Id., 222; affirmed in Court of Appeals, 39 Id., 392; Allen v. Malcolm, 12 Abb. Pr., N. S. 335; Steimle v. Bell, 12 Id., 171; Titus v. Relyea, 16 How. Pr., 371, 375 ; Ba/ma/rd v. Hey Hick,
      49 Barb., 62, 70; Howe Machine Go. v. Petbibone, 74 N. Y., 68 ; Van Rhade v. Van Rhade, 2 N. Y. Sup’m. Ct. [T. & C.], 491.
   Gilbert, J.:

It was satisfactorily shown on the hearing of this motion that the defendant, as early as March, 1877, had abandoned his wife and •child, and had gone out of the State. This suit was commenced in July, 1877. The adultery of the defendant was legally proved. The decree was regularly obtained, and the plaintiff has remarried •on the faith of its validity. Nevertheless, if it had been shown that any fraud had been perpetrated in obtaining the decree, or that the testimony on which it was granted was false, we should unhesitatingly set it aside. The evidence presented by the defendant on those points is not satisfactory, and it has been contradicted in all material respects by evidence on behalf of the plaintiff. It would not, therefore, be just to the plaintiff, or consonant with public policy, to vacate the decree, on the ground that it was «obtained by fraud. There is no substantial defect in the proof of "the publication of the summons. The summons is annexed to the affidavit of the printer. Calling the paper so annexed a “ notice ” •does not make it one.

The only remaining question relates to the sufficiency of the -affidavit on which the order of publication was made. The statute (Code of Pro., § 135) which governed the case required proof by affidavit, to the satisfaction of the judge who granted the order, that the defendant could not after due diligence be found within the ■State. It was the duty of the judge who made the order to decide upon the sufficiency of the evidence presented to him. If the evidence had a legal tendency to prove the fact requisite to confer jurisdiction upon him to make the order, then, the order is valid, although the proof on which it was made is slight and inconclusive, (Staples v. Fairchild, 3 Comst., 46.) The affidavit on which the order was made states the fact positively “ that the defendant has not resided within the State of New York since March, 1877.” That, we think, is some evidence that the defendant could not after due diligence be found with the State. I perceive nothing in the statute which required proof of an actual search for the defendant, for the fact that a man cannot 'be found in a given place can be proved without an actual search for him there. Proof that the defendant was actually out of the State would be the most convincing'evidence that he could not, with any degree of diligence, be found within it.

It now appears that the defendant was out of the State when the order of publication was made. How futile, then, would have been a search within the State!

The fact may also be shown by evidence of a less conclusive nature. It is the exclusive province of the judge who grants the order to determine whether the affidavit presented is sufficient or not. In some cases, the fact of non-residence, in addition to the fact that the defendant cannot be found, must be shown. (Code, § 135, subd. 3.) In such cases an affidavit of non-residence merely, might with some reason be held insufficient, not because non-residence did not tend to prove that the defendant could not with due diligence be found within the State, but because formal and distinct proof of both facts was requisite to a technical compliance with the statute. This last consideration may account for some of the decisions cited by the learned counsel for the defendant.

Without pursuing the subject further, and omitting a review of the conflicting decisions upon this subject, we are of opinion that the affidavit on which the order of publication was made, though extremely weak and inconclusive, was still sufficient to confer jurisdiction to make the order, and that the order appealed from should be affirmed, with $10 costs, and disbursements.

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

Order affirmed, with $10 costs, and disbursements.


text:
    EDWARD H. COLE, Appellant, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent.

      Corporation — a creditor at large cannot apply for its dissolution on account of its insolvency.

    A creditor at large oí a corporation cannot maintain an action to have it dissolved, on the ground of insolvency, and to compel its trustees, directors and officers to make good the losses which it has sustained by reason of their negligence and mismanagement.

      Belknap v. The PI. T. Life Ins. Go., 11 Hun, 282, followed.
    Appeal from a judgment entered upon an order sustaining a demurrer interposed to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

      John L. Hill, for the appellant.

      Henry W. JoJmson, for the respondent.
   Gilbert, J.:

The plaintiff claims to be a creditor at large of the defendant corporation; as such he has brought this suit to overhaul the conduct of the individual defendants, as officers, trustees and directors of the corporation, to compel them to make good the losses which have occurred through their mismanagement, to remove them from office, and to wind up the corporation on account of its insolvency. A demurrer to the complainant by the individual defendants was sustained, upon the ground that a creditor at large could not maintain the action.

That decision is in accordance with general principles; for, until the debt has been established it remains a question whether the holder of it is a creditor. The statute (2 R. S., 463, § 35) gives the remedy to a creditor of the corporation, but we think it was not the intention of the Legislature to make that remedy the medium of litigating the question whether the plaintiff was a creditor when the suit was commenced or not. This question was decided in Belknap v. North America Life Ins. Co. (11 Hun, 282). It was there held that a creditor at large could not maintain an ■action like this. Upon a re-examination of the subject we have perceived no reason to doubt the correctness of that decision. The case cannot, in our judgment, be brought within the principles which govern remedies for breaches of private trusts. The assets of a corporation, it is true, are a trust fund for the payment of its debts, but that fact does not give to individuals who are creditors ■of the corporation a right to intermeddle or interfere with its affairs before an attempt has been made to enforce payment of the ■debt by the corporation.

The order appealed from is not appealable. That must, therefore, be dismissed. The judgment must be affirmed, with costs •and disbursements.

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

Judgment affirmed, with costs and disbursements, and appeal from order sustaining demurrer dismissed.


text:
    CHARLES W. HANDY, Respondent, v. JACOB K. DRAPER, Appellant.

      Creditor of corporation — when his right to sue a stockholder for the amount unpaid on his stock accrues — when it is barred by the statute of limitations — 1848, ch. 40, §§ 10, 34.
    'To authorize a creditor of a corporation, formed under chapter 40 of 1848, to maintain an action against one who is then a stockholder thereof, to recover the amount unpaid upon his stock, as provided in sections 10 and 34 of the said act, it is sufficient to show that an action has been brought against the company as therein provided, and it is not necessary to show that a judgment has been recovered against it, and that an execution issued thereon has been returned unsatisfied in whole or in part.
    "The statute of limitations commences to run in favor of the stockholders from the time of the bringing of the action against the company, and not from the time of the return of an execution issued upon a judgment recovered against it.

      Xindüey v. Svmmonds, 3 Abb. Pr., N. S., 69, — overruled.

      .Shellington v. Howland, 67-Barb., 14, — followed.
    Appeal by tbe defendant from a judgment in favor of tbe plaintiff, entered upon the tiial of this action by the court without * jury.
    The action was brought against the defendant as a stockholder in a manufacturing corporation, under the following clauses of the act of February 17, 1848.

      “ § 10. All the stockholders of every company incorporated under this act shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have been made and recorded as prescribed in the following section.”
    “ § 24. No stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act, which is not to be paid within one year from tbe time tbe debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due; and no suit shall be brought against any stockholder who shall cease to be a stockholder in any such company, for any debt so contracted, unless the same shall be commenced within two years from the time he shall have ceased to be a stockholder in such company, nor until an execution against the company shall have been returned unsatisfied in whole or in part.”
    The plaintiff bought a judgment recovered by an original creditor against the company, in a suit begun August 11, 1873. The present action was begun by him more than six years thereafter, i. e., August 18, 1879.
    The defendant has never ceased to be a stockholder.
    The defendant claimed that, under section 24 of the statute, the right of action against a continuing, as distinguished from an ex-stockholder, accrued at the moment suit was begun against the company, and, as it was more than six years since that time, the statute of limitations was a bar. The court held that the right was not complete till the return of an execution against the company unsatisfied, and as that was within six years the statute did not apply.

      James W. Tread/weTl, for the appellant.

      A. Boring Ouslvmg, for the respondent.
   Gilbert, J.:

There is no occasion that I can discover for departing in this-case from the settled and salutary rule for the interpretation of statutes, namely : that an act is to be construed according to the ordinary and grammatical sense of its language, and that a proviso which on the face'of the act is not inconsistent with the other enactments therein, is not to be limited or enlarged upon any supposition respecting its policy or intention. The intention of the Legislature governs all rules of construction, but when the language used in a statute is precise and unambiguous, it best declares such intention. (Johnson v. H. R. R. R. Co., 49 N. Y., 462.) Section 10 of the general act for the incorporation of manufacturing, &c., companies (eh. 40 of 1848), imposes an absolute liability upon stockholders, until the capital of the company shall have been paid in. The reason of this is obvious. The act permits the company to exercise its corporate ¡lowers when its capital stock has been subscribed merely, but requires the payments of its capital stock one-half in one year, and one-half in two years. Hence, section 10 was designed to afford to creditors of the corporation the security of the personal liability of stockholders, as a substitute for capital paid in. Section 24 of the act operates as a proviso appended to section 10, and must be read accordingly. The ordinary and grammatical sense of the language of that section is plain. It does not make the liability imposed by section 10 dependent upon the recovery of a judgment 1 against the corporation and the return of an execution thereon. Such a qualification would have been incompatible with the intention of the Legislature manifested in the tenth and other sections of the act, namely : to provide a present means of enforcing payment of the debts of the corporation equivalent in some degree at least to that which would have existed, if the stockholders had done that which stockholders generally are required to do, namely: paid in their subscriptions to the capital. As an additional security to creditors, power was given to the corporation to forfeit the stock subscribed iu default of payment of subscription thereto. Taking all these provisions together, it seems to me quite apparent that the Legislature intended to make the liability of stockholders a primary one, and enforceable immediately. What the reason was for requiring a suit to be commenced against the corporation it is difficult to say, and it would do no good to conjecture. It would be equally difficult to imagine why a remedy, evidently intended to be as direct and speedy as that against the corporation, should be frustrated by construction. It is an honest and just provision that stockholders who have not paid in their subscription should be ■liable for corporate debts within the limitation prescribed. But to make the remedy to enforce such liability dependent upon the inability of the creditor to obtain payment from the corporation would greatly impair its efficacy, and in cases where the corporation had become insolvent would require the creditor to prosecute a useless, and expensive suit. The judgment would not be even prima, facie evidence of the debt iu his action against the stockholder. Nor can any good reason be given why a litigation with the corporation should be forced upon the creditor rather than the stockholder. If the corporation be solvent, I perceive no reason why the stockholder should not pay and then have recourse to the corporation. That rule governs the common relation of principal and surety. If the corporation be insolvent, it is by no means certain that either the creditor or the stockholder would be benefited by obtaining a judgment against it. Without pursuing the subject further, it is enough .to say that the condition, which suspends the liability imposed by the act until after the return of an execution against the company, applies only to persons who have ceased to be stockholders. The case of Lindsley v. Simonds (2 Abb. Pr., N. S., 69), is a decision at Special Term, and it must be deemed overruled by the case of Shellington v. Howland, at General Term (67 Barb., 14). The last case was affirmed by the Court of Appeals in 53 N. Y., 371, but without a determination of the point here discussed.

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

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


author: ■Gilbert, J. :

text:
    ELIAS W. VAN VOORHIS and MARIA L. VAN VOORHIS as Executors, &c., of ELIAS W. VAN VOORHIS, Deceased, Plaintiffs and Appellants, v. SARAH A. BRINTNALL and ROSE VAN VOORHIS, Defendants, and Appellants, and ELLA THIERS and ELIAS WILLIAM VAN VOORHIS, Defendants and Respondents.

      Marriage in another State, of one against whom a judgment for divorce has been obtained, in this State — when it is invalid — right of a wife procuring a divorce, to share in her husband's estate.

    The plaintiffs’ testator devised and bequeathed all the rest, residue and remainder of his property, both real and personal, to his executors in trust, to collect and receive the rents, issues and profits thereof, during the life of his widow, and to pay two-ninths of the net income to his son, Barker Van Voorhis, except $800 thereof, which was to be annually paid out for the support and education of Ella and Elias, two children of Barker’s, until they should attain the age of twenty-one years; upon the death of his wife, he gave all his property, real, personal and mixed, to his children, to be divided equally between them, share and share alike, the issue of any deceased child to take the share his, her or their parent would have taken if then living. At the time of the testator’s death, Barker Van Voorhis was married to Elizabeth Van Voorhis, by whom he had the two children named in the will. Thereafter the said Elizabeth Van Voorhis procured, in an action brought in this court, a divorce from her husband, on account of his adultery. After the entry of the judgment for divorce, Barker Van Voorhis and one Ida Scbroeder left the State of New York, with intent to evade the laws thereof, and went into the State of Connecticut, and were there married according to the laws of that State. Thereafter, and during the life of his mother, Barker Van Voorhis died, leaving two children by his first, and one by his second marriage.
    In an action brought to procure a construction of the will, —Held, that the marriage contracted in Connecticut was void.
    That the income accruing during the life of the widow of the testator on Barker’s share, went, after his death, to his first wife Elizabeth and his two legitimate children.
    That on the death of the widow of the testator, Barker’s share went to his two legitimate children.

      Appeal from a judgment entered upon the trial of this action at Special Term. The action was brought to procure a construction of the will of one Elias W. Van Voorhis, deceased.
    His will contained, among others, the following provisions:
    “ Third. — I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, and wheresoever the same may be situated, which may remain after payment of my debts and after the above devise and bequest to my wife, to my executors hereinafter named. In trust nevertheless, and for the uses and pui’poses hereinafter mentioned and provided, viz.: That they shall collect and receive the rents, interest, income, and profits thereof as the same shall from time accrue and become payable, and shall pay all taxes, assessments and other charges thereon, and also the reasonable and proper charges for repairs and insurance of my real estate. That after paying all necessary charges and expenses they shall pay and apply the net income collected and received from all my property so given to them in trust as follows, viz.:
    “ Second. — Two ninth parts thereof for the benefit of my son Barker Van Voorhis, as follows: The sum of eight hundred dollars to be annually paid out and expended by my executors for the support and education of Ella Van Voorhis and Elias William Van Voorhis, children of my said son — four hundred dollars for each— until said children- shall respectively reach the age of twentj^-one years. The remainder of said two ninth parts of the said net income to be paid to my said son Barker Van Voorhis.....
    “ Sixth. — Upon the death of my said wife I give, devise and bequeath all my property, real, .personal, and mixed, and wheresoever this same may be situated, to my children hereinbefore named, to be divided equally between them, share and share alike. The issue of any deceased child to take the share his, her, or their parent would have taken, if then living. Should any of my children die before my said wife, leaving no issue him, her or them surviving, then I give, devise and bequeath the share of such deceased child to his or her brothers and sisters him, her or them surviving, share and share alike. ”
    Barker Van Voorhis, mentioned in the said last will and testament, departed this life on the 27th day of February, 1880, Maria L. Van Voorhis, upon whose life the trusts therein provided for depended, being then and yet living. At the time of the death of the said Elias W. Van Voorhis the said Bai’ker Van Voorhis was married to one Elizabeth Van Voorhis, by whom he had the two children mentioned in the said last will and testament.
    Thereafter, the said Elizabeth Van Voorhis, who is still living, commenced an action against the said Barker Van Voorhis, in this court, in which the said Elizabeth duly obtained judgment against the said Barker, whereby, among other things, it was adjudged that the marriage between the said two parties should be dissolved, and that the same was thereby dissolved accordingly, and that the said parties were, and each of them should be, freed from the obligation thereof.- And it was therein further adjudged, “ that it should be lawful for the said Elizabeth Van Voorhis, the plaintiff, to marry again, in the same manner as if the said Barker Van Voorhis, the defendant, was actually dead; but it shall not be lawful for the said Barker Van Voorhis, the defendant, to marry again until the said Elizabeth Van Voorhis,” the plaintiff, “ shall be actually dead.”
    After the entry of the aforesaid judgment the said Barker Van Voorhis departed from the State of New York, with the intent to evade the laws thereof, and at the city of New Haven, in the State of Connecticut, was married to one Ida Schroeder. Thereafter the defendant, Rose Van Voorhis, was born, the issue of the said marriage between the said Barker Van Voorhis and his said wife Ida, within the State of New York. The defendants, Elias William Van Voorhis and Rose Van Voorhis, are infants, the former aged eighteen years, the latter five years.

      Geo. W. Stephens, for the plaintiffs, appellants.

      W. J. Foster, for defendant Sarah A. Brintnall, appellant.

      J. K. Ayma/r, guardian ad litem for defendant Rose Van Voorhis, appellant.

      Richard Busteed, guardian ad litem for Elias William Van Voorhis, defendant, respondent.

      Richard Busteed, Jr., for Ella Thiers, defendant and respondent.
   ■Gilbert, J. :

The question respecting the validity of the marriage of the parents of the infant defendant, Rose Yan Yoorhis, was decided in Marshall v. Marshall (2 Hun, 238). Upon the principle of stare decisis we cannot do otherwise than follow that decision. [Harris v. Clark, 2 Barb., 101; People v. Tredmay, 3 Id., 470; Loring v. United States Vulcanized, &c. Co., 30 Id., 644; Barnes v. Ontario Bank, 19 N. Y., 165.) The consequence is that said infant is not included in the term “children” in the second clause, nor in the term '“ child ” in the sixth clause of the testator’s will.

The death of Barker Yan Yoorhis, in the life-time of the widow of the testator, leaving issue, has left the income from that portion ■of the testator’s property which was devised to the executors in trust for his benefit (except $400) undisposed of, and such income belongs to the persons presumptively entitled to the next eventual •estate in such property. (1 R. S., 726, § 40 ; Id., 773, § 2.) Those persons are his widow and legitimate children. The judgment, we think, correctly determined their interests. It is objected that Elizabeth Van Voorhis is not entitled as widow to anything besides dower in her former husband’s real estate. She is still, in contemplation of law as respects this controversy, his widow, notwithstanding the decree of divorce in her favor and her subsequent re-marriage. [Wait v. Wait, 4 N. Y., 95.) Consequently the statute of distributions applies to her in like manner as the statute of dower. The former statute gives one-third part to the widow, .and the latter provides that a widow shall be endowed of one-third part. The estate devised to Barker Yan Yoorhis was a vested remainder. Upon his deatli his widow became entitled to dower in that estate and to one-third of his personal estate. One-third of the income from each description of property, therefore, belongs to her.

The judgment should be affirmed, with costs to all parties to this' .appeal, to be paid out of the trust estate.

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

Judgment affirmed, costs to all parties out of trust estate.


text:
    CLINTON RAYNOR, Appellant, v. HARRISON GORDON and others, Respondents.

      Application to sell land of a decedent to pa/y his debts — the judgment oi'editor of a devisee may set up the statmte of limitations — when the statute bars the pro~ ceedings.

    Upon an application by a creditor of one deceased, for an order directing land devised to be sold to pay tbe decedent’s debts, judgment creditors of thedevisee may set up the statute of limitations as a defense, though the devisee himself does not appear or oppose the application.
    Such proceedings cannot be maintained when an action on the original debt would not then lie. The fact that a judgment was recovered against the-executor who was also the devisee before an action on the debt was barred by the statute will not enable the creditor of the decedent to maintain the-proceedings.
    Appeal from the decree of the surrogate of Suffolk county, denying the application of the appellant for an order directing the-sale of so much of the real estate of the testator devised to the-defendant, Harrison Gordon, and not conveyed by him, as should be necessary to pay the debt of the appellant.
    Henry Gordon died July 12, 1871, leaving three sons, his .only-next of kin and heirs at law, to whom he gave all his real estate indifferent proportions, but died intestate as to nearly all his personal property. His son, Harrison Gordon, was his sole executor.
    The inventory is dated October 18, 1871, and amounts to-$2,741.89, including a note from the executor, Harrison Gordon, to the testator, for $1,000, with $55.50 interest due, secured by a mortgage.
    The testator was indebted to the appellant in the sum of $400,. on a note dated October 1, 1868, payable on demand, with interest at six per cent., with two year’s’ interest indorsed. On this note-the appellant recovered judgment by default in the Supreme 001114 on July 12, 1873, for $480.97, against the executor. The executor-has no personal assets except his own indebtedness to the estate, and the estate owes no other debt than that of the appellant.
    The devisee of the land and executor of the will did not .appear-in this proceeding, and makes no objection to the sale of his real estate for the payment of the amount due from the estate of his father to the appellant.
    The three respondents are three separate judgment creditors of Harrison Gordon, who claim that their several judgments are liens on the real estate devised to the said Harrison Gordon by his father. The judgments were recovered on February 8, 1877, and August 16, 1879.

      George Miller, for the appellant.

      William Wickham, for the respondents.
   Gilbert, J.:

The petition to the surrogate shows, on its face, that the executor was indebted to the estate of the decedent in the sum of $1,415.72, and that the decedent owed no debt except that due to the petitioner, which amounted only to the sum of $542.82. Thus, the petition showed a surplus of assets over and above debts amounting to $872.90. The legal intendment is that a debt due to a testator from an executor is an asset in the hands of the latter, for he is made by statute liable for the amount of the debt as so much money in his hands, at the maturity of the debt. (2 R. S., 84, § 13.) No fact is stated in the petition showing that the executor is irresponsible, or that for any reason his indebtedness is not an available asset. The jurisdictional fact of a deficiency of assets therefor was wholly wanting.

"We are of opinion, also, that the petitioner’s claim has been barred by the statute of limitations. In this proceeding the debt must be established. A judgment is merely evidence of the debt. The statute of limitations is pleadable in bar of the debt in the same manner as though the proceedings were an action to recover the debt. (Ferguson v. Broome, 1 Bradf., 10.) It appears, however, that the executor is also a devisee, that the prayer of the petition is restricted to the land devised to him, and that the executor did not appear before the surrogate, or in any manner avail himself of the statute of limitations as a defense in this proceeding. The appellants insist that the respondents, who are judgment creditors of the executor personally, cannot set up the statute of limitations because their interest in the lands devised to the executor is not a vested one. Their interest is a lien only, it is true, and that is neither a jus v>i re, nor a jus ad rem. Still, there is no contingency about it. "Whatever rights their judgments afford are vested rights. But the statute on this subject does not admit of the construction contended for. Its language is that any person claiming under any heir or devisee may set up the statute of limitations, &c. (2 R. S., 101, § 10.) The claim of the respondents is to ■enforce their lien on the lands which the petitioner asks to have sold. The land was devised to the executor. Their claim, therefore, rests exclusively upon the title of such devisee, and therefore must be in a legal sense under him.

The decree of the surrogate must be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Darman, JJ.

Decree of surrogate affirmed, with costs.


author: Barnard, P. J.:

text:
    FRANK CROOKE, Appellant, v. FRANCIS ANDERSON, Respondent.

      Obstruction of the sidewalk by fences and stoops — when the owner of a neighboring lot may maintain an action for their removal.

    “Where the owner of a lot fronting upon a street in a city, erects a stoop and fence in front thereof so as to reduce the space left for public travel upon the sidewalk from nineteen to eight feet, an owner of a lot fronting on the same street, and distant about one hundred feet from the obstruction so created, may maintain an action to have the same abated as a nuisance.
    Appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at Circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to abate an alleged nuisance, consisting of a stoop and fence erected by the defendant in front of a lot ■owned by him in the city of. Brooklyn, situated on ,the northwest ■corner of "Washington avenue and Malbone street, and of a stoop in front of a lot owned by him on the east side of Washington avenue just north of Malbone street. The plaintiff owned two lots on the east side of Washington avenue, the one twenty-six feet eight inches and the other about eighty feet north of the defendant’s lot, and a lot on the west side of Washington avenue, distant about one hundred and six feet north of the defendant’s lots. The situation of the defendant’s lots and the nature of the obstruction created by them appear from the accompanying diagram.

      Frcmk Crooke, for the appellant.

      John IL Kemble, for the respondent.
   Barnard, P. J.:

I think the judge erred in dismissing the complaint in this action. The plaintiff is the owner of land on "Washington avenue, Brooklyn The defendant is also an owner of land on the same avenue. The defendant has carried his fence into Washington avenue and liisstoop, so that it leaves but eight feet for public travel instead of nineteen feet, as it is laid out to have. The fence erected compels persons who cross Malbone street cross-walk to the northwest corner of Washington avenue to go around this fence instead of keeping directly up Washington avenue. The access to plaintiff’s property is thus peculiarly affected by this obstruction. The law is so well settled, that it needs no authority to be cited, that any person who is peculiarly injured by a public nuisance, may have his-remedy in equity to abate the nuisance. The extent of this peculiar injury is not of the slightest consequence so far as the right of action is concerned. I think a fence, which compels the plaintiff to go around it in order to go to and from his premises situated one hundred and six feet from it, sufficient to give the right of action. The judgment should be reversed and a new trial granted, costs to abide event.

Gilbert and Dykman, JJ., concurred.

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


author: Barnard, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. JAMES COX and others, Respondents.

      Bill of pan'Uculws — when it is sufficiently definite and specific.

    Appeal from an order made at Special Term, vacating an order Teqniring certain of the defendants to appear and be examined before trial.
    In 1879, an act was passed dissolving the corporation known as “ The Trustees of the Town of Westchester,” and abolishing the ■office of trustee of the town of Westchester. It also directed the trustees to assign, transfer and deliver to the supervisor of said town all moneys, deeds, bonds, mortgages, securities, books of account, records, and all other property belonging to said town, or in ¡any manner pertaining to the office of trustee of said town, which was then in their possession, or under their control, &c. In July, 1879, the supervisor, claiming that the said trustees had converted large sums of money which had come into their hands as such, amounting to over $6,000, brought this action in the name of the People of the State of New York, to recover of the defendants, the ex-trustees, the moneys so converted by them. They, in their answer, denied that they had converted any moneys belonging to the town or otherwise, and alleged that they had complied with the said last-mentioned act, and had expended according to law, all moneys received by them, except such as they bad turned over to the supervisor as aforesaid ; and on January 10,1880, obtained from Mr. Justice Barnard an order directing the plaintiffs’ attorney to furnish them a bill of particulars, giving an account of particulars of the plaintiffs’ demand for which the action was brought, containing “ the times or time when the moneys claimed were converted ; what moneys were so converted, and each item thereof which mate up the total demand of the plaintiffs; when and how such items alleged to be converted were received by tbe defendants, and from what source ; and an accurate, full and detailed statement of each and every item of money received by said defendants as trustees, which it is claimed was converted; from whom and when received, and how and where the plaintiffs claim said money was so converted as alleged; ” and until the service of said bill of particulars as aforesaid all ju’oceedings on the part of the plain tiffs were stayed. The plaintiffs served a hill of particulars, setting forth the date on which, the name of the person from whom, and the source from which each of the sums sought to be recovered had been received, and alleging “ that the said several sums, and the whole amount thereof, excepting $103.67, was converted or without right disposed of by these defendants by failing, neglecting and refusing to deliver the same or the whole amount thereof, except as above mentioned, to the.super visors of the town of "Westchester, as alleged in the amended complaint, and as required by the act of the Legislature made a part of the amended complaint herein as Exhibit A.”
    On April 7, 1880, the plaintiffs’ attorney obtained from County Judge S. D. Gifford an order to examine two of tlie defendants before trial, and on tbe return day of the said order tbe defendants’ counsel moved to vacate it, on the ground that the plaintiffs, having failed to serve such a bill of particulars as was required by Judge Barnard’s order, tbe stay granted by him thereiu was still in force, and the order to examine the defendants before trial was irregular. Judge Gifford thereupon made an order vacating his order to examine the defendants before trial. From this last order the plaintiffs appeal to this court.
    The court, at General Term, said: “ The order vacating the order to examine defendant was improperly made. There is no question but the affidavit is sufficient. It states the issue in the action, and facts and circumstances showing the materiality of the parties as witnesses, and in other respects conforms to the rule and the section of the Code applicable to the case. The order for the bill of particulars was complied with. The bill of particulars contains every item claimed ; the date when it was received by the defendant ; .the date of the conversion of each item ‘ by failing, neglecting and refusing to deliver the same and the whole amount thereof ’ to the supervisor, under the act of the Legislature annexed to the complaint, within twenty days-after its passage. In other words, the bill of particulars avers the conversion to be by reason of the trustees wrongfully keeping the money themselves. There is no other statement necessary to comply with that part of order which requires the particulars as £ to whom and for what purposes the plaintiiis claim that the defendant disposed of said sums of moneythe averment being that the defendants converted all the money claimed, themselves, and on a certain day.”

      Henry O. Henderson and Isaac K. Mills, for the appellants.

      Ma/ri/in J. Keogh, for the respondents.
   Opinion by

Barnard, P. J.;

Gilbert and Dvr-man, JL, concurred.

Order reversed, with costs and disbursements.


text:
    FIRST BAPTIST CHURCH IN FRANKLINDALE, Appellant, v. VIOLETTA PRYOR, Respondent.

      JHght of a church to enforce payment of money, collected by an unincorporated association foi' its benefit.

    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint, made at Circuit.

      The action was brought to recover money alleged to have been ■collected by the defendant for the benefit of the plaintiff.
    Plaintiff is a religious corporation, duly organized, and owning a house of public worship at Wappinger’s Palls, Dutchess county. Within said corporation was a voluntary unincorporated association, some of the members of which were, and others of which were not, members of the plaintiff, named “ The Baptist Sewing Circle,” with articles or by-laws, the first of which was
    “ ARTICLE I.

      “ The society shall be known as the Baptist Sewing Circle, and has for its object the refurnishing of the church.” The defendant was elected treasurer, received the moneys collected, and placed the same in the savings bank. The association was organized October ■30, 1873, and broke up in 1876. Prior to 1876 the association held fairs, festivals and exhibitions, at which money was charged and taken for admission, and from which the money sought to be recovered was wholly or principally realized.
    The court, at General Term, said : “ I think this case falls within the principle established by the Court of Appeals in Rector v. Crawford(43 N.'Y. 476). The money was not raised by direct act -or authority of the corporation, but the donors supposed they were giving to the church and intended' to do so. The object of these donors is plain. Although the association which collected the money was not entirely composed of members of the church and •of those who usually worshiped there, it was mainly composed of ■such persons. The association was known as the Baptist Sewing Circle and £ has for its object the refurnishing the church ’ as set forth in its by-laws. The church £ could adopt the act of those who raised the fund, and claim the benefit of the donation ’ as stated by the Court of Appeals. Neither the defendant, who was treasurer, nor the individuals, operating with her, could defeat the gift if claimed by the church. The only difference between the case under consideration and the case in the Court of Appeals, is that in this case the defendant was not the treasurer of the church, as he was in Reotor v. Crawford, and the finance committee of the church have signed no receipts. These variations do not, we think, vary the principle that the money belongs to the church for the purpose -designed by the donors, and that neither the treasurer or the members of the association could divert it from its proper destination.”

      Jno. Thompson, for the appellant.

      Bernard J. Twiney, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert and Dykman, JJ., con■curred.

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


author: Gilbert, J.

text:
    HENRIETTA EHRMAN, Respondent, v. JACOB ROTHSCHILD, Appellant.

      Facts, can only be reviewed on appeal from, an order denying a motion for a new tidal — the statement in the case, of a motion to set aside the verdict, is not equivalent to an order.

    Appear from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The notice of appeal stated that “ the defendant appeals to the General Term of this court from the order denying the motion for a new trial, and from the judgment entered, &c.” No order denying a motion for a new trial appeared in the appeal book. At the end of the case as settled appeared the following statement: “ The defendant moved to set aside verdict, the same being against the evidence. (Motion denied. Excepted.)”
    The court, at General Term, said: “We have no power to review the facts in this case. There is sufficient evidence to sustain the verdict. Upon an appeal from the judgment only, a verdict in such a case must be held conclusive. {Boos v. World Ins. Go., 4 Hun, 133; affirmed, 64 N. Y., 236; Godfrey v. Moser, 66 Id., 250.) To authorize the court to set aside a verdict of a jury on the ground that it is against the weight of evidence, there must have been an order made and entered denying a motion for a new trial, and an appeal taken from such order. The notice of appeal in this case refers to such an order, but none appears in the case. The statement in the case, of a motion made to set aside the verdict, is not equivalent to an order. (4 Hun, 133; 64 N. Y., 236.)

      Joseph E. Uewburger, for the appellant.

      Lewis H. Dickerson, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


author: Gilbert, J.;

text:
    JACOB BRADY, Appellant, v. ABRAHAM COCHRAN and others, Respondents.

      When an issue of fact in an equitable action should be tened by a jury.

    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The plaintiff, who claimed to be the owner of an oyster bed and the oysters therein, brought this action to recover damages for the acts of the defendants in entering upon it and taking away and converting to their own use oysters and clams, and to restrain them from thereafter entering upon the same and from taking up, or removing, or in any way interfering with the oysters or clams therein.
    The plaintiff claimed that the case should be tried by the court without a jury, on the ground that it was an equitable action.
    The court, at General Term, said : “ The gist of this action is an alleged tortious conversion of the plaintiff’s oysters. It also contains allegations appropriate to a demand of equitable relief. In such cases the proper practice is, to submit the issues at law to a jury, and tlien to dispose of the remaining issues without the intervention of the jury. A party cannot be deprived of his right to a trial by jury by the act of the other party, in coupling with his cause of action at law, allegations of facts which, if proved, would entitle him to ancillary relief of an equitable kind. (Dams v. Morris, 36 N. Y., 572; Hudson v. Oaryl, 44 Id., 555.) The judge pursued the proper practice in this instance. The issue upon the averment of a conversion of the plaintiff’s property was tried before a jury, and, then, after a verdict against the plaintiff, the equitable relief demanded was properly denied, for it was dependent upon a recovery by the plaintiff.”

      Mills <& Wood, for the appellant.

      Mwrtim, J. Keogh, for the respondents.
   Opinion by

Gilbert, J.;

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

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J\;

text:
    AMELIA DICKINSON, Respondent, v. THOMAS AULD, Appellant, Impleaded with AGNES AULD.

      Answer — when it cannot he stricken out as frivolous.

    Appeal from an order overruling the answer of the defendant as frivolous, and ordering judgment for the plaintiff for the amount claimed in the complaint, being the sum of $1,338.21 and costs, and also from the judgment entered thereupon.
    The action was brought to recover upon the bond a deficiency claimed to remain unpaid after an alleged statutory foreclosure of a mortgage upon premises in Kings county, made by the defendant, Thomas Auld, and his wife, to secure the payment of $1,600, loaned to defendant’s wife, and which mortgage,- with the bond accompanying the same, was by divers mesne assignments transferred to the plaintiff.

      The answer denied the legality and regularity of the alleged foreclosure proceedings, specifies the facts showing that the statute had not been complied with, admits that the plaintiff purchased the mortgaged premises at the sale held under said proceedings, and that she has gone-into possession, retains, and claims to hold the same thereunder as owner; and alleges that the amount bid by her was at least $2,000 less than the fair and reasonable value of the premises at the time of the sale; that she was enabled to bid in said premises for that sum in consequence of her irregular proceedings, and that persons who desired to purchase said premises failed to bid at said sale by reason thereof. That the value of the mortgaged premises at the time of sale and at the time of answering, greatly exceeded the amount of the mortgage, costs, and all other liens on the premises, and that the defendant sustained damage in consequence of such irregular and illegal proceedings in the alleged foreclosure equal to the amount of his liability on his bond.
    The court, at General Term, said: “The answer of Thomas Auld is not frivolous. He is sued as the signer of a money bond, with his wife. There accompanied this bond a mortgage upon the wife’s property. The complaint avers that a sale was had pursuant to a power contained in the mortgage, and that the property brought $500 only. The answer of Auld avers that he, with his wife, conveyed the land covered by the mortgage to one Robert Auld; that Robert Auld conveyed the same to one Theis; that both deeds were put. upon the record before the first publication of the advertisement of sale under the foreclosure by statute; that such sale was had without any notice of it having been given, either to Thomas Auld or Agnes, his wife, who were the signers of the bond and mortgage, or to Robert Auld or Theis, who were the grantees under deeds by which they covenanted to pay the mortgage debt as part of the purchase-money. The foreclosure by advertisement without notice of the sale was void as to Thomas Auld, if his answer is true. The plaintiff then attempted to use a void sale to establish a valid payment to the extent of the bid. This cannot be done.”

      Guernsey Saelcett, for the appellant.

      O. P. Hoffman, for the respondent.
   Opinion by

Barnard, P. J\;

Gilbert, <1., concurred.

Present — Barnard, P. .L, Gilbert and Dtkman, JJ.

Order overruling answer as frivolous and judgment reversed, and case sent to Special Term for trial; costs to abide event.


text:
    THE CITY OF BROOKLYN, Appellant, v. THE NEW YORK FERRY COMPANY, Respondent.

      City — control of it over its streets and piers — it cannot restrain cm owner from using adjoining property.

    Appeal from an order of the Special Term, denying plaintiff’s motion for an injunction.
    The action is brought to restrain the defendant from building adjacent to a pier at the foot of South Sixth street, Brooklyn.
    The defendant was the owner of a tract of upland, between First street and the East river, the northerly boundary of which is the center line of South Sixth street, and a line in continuation thereof into the East river. On December 11, 1879, the defendant obtained by grant from the People of the State, the title to all the land under water extending to the exterior pier line and to the center line of South Sixth street prolonged into the river.
    The village of William’sburgh, to whose rights the plaintiff succeeds, opened South Sixth street as a public street to the East river, its boundary. A few years ago the plaintiff constructed a pier, of which forty-eight feet on the south side is within the bulkhead line, and but seventy-six feet beyond that line. The pier line, as established by law, and the exterior boundary of the grant of the State to defendant, is one hundred and eighty-one feet six inches beyond the plaintiff’s pier head. The pier as constructed by plaintiff is less than forty feet wide. The work prosecuted by defendant and sought to be enjoined, is: 1. The filling in of its own lands, not in the street, but adjacent to it, to the bulkhead line or line of solid filling. 2. The widening of the pier by constructing less than twenty-two feet of dock on the south side. 3. The extension of the whole pier, so far as the same is on defendant’s land, to the line authorized by the State for that purpose, to wit, the permanent pier line. The defendant concedes the right of the plaintiff to have the street extend not only over the pier now constructed, but over any extension that the defendant may construct.
    The court, at General Term, said: “The plaintiff’s duty as guardian of public highways within its limits is simply to see that the public have free passage over them; that the same are unobstructed and fit for travel. No right whatever is given over the limits which adjoin it, and which in fact belong to others. If this action was based upon an injury to a highway which did not end at the East river, there would be no question but that the defendant might use its adjoining property in its own way, if the highway was left untouched. The street does end at the East river, and the highway extends over an erection or pier into the same. I do not think that this gives the city as pier owner a right to restrain the defendant’s use of its property adjoining. As to the city, the street is simply a street, although vessels can load and unload at each side of it, if the city has no title to the lands under water, and the defendant has such title. The pier being erected by defendant does not infringe the law of 1857 (L. 1857, ch. 763). The street and the pier of defendant do not together exceed seventy feet in width, and there is at least one hundred feet of water space between it and the next pier on the south.”

      John, P. Pray, for the appellant.

      Theodore Jaeleson and Edgarr M. Gullen, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert and Dykman, JJ., concurred.

Order refusing to continue injunction affirmed, with costs and disbursements.


author: Dykman, J.;

text:
    CAROLINE V. SMEDIS, as Administratrix, &c., Respondent, v. THE BROOKLYN & ROCKAWAY BEACH RAILROAD COMPANY, Appellant.

      •Contributory negligence — when the jwry man/ find the deceased to have been free from it.

    Appeal from a judgment in favor of the plaintiff, entered upon •the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the ¡action was tried.
    The plaintiff’s husband was struck by one of defendant’s locomotives, in charge of its servant, and died from the injury thereby occasioned. The plaintiff, alleging that the accident resulted from' defendant’s negligent management of its train, brought this action .and recovered a judgment at Circuit. The accident happened near where defendant’s road crosses what is called Liberty avenue. 'There was a conflict of evidence as to whether bell or whistle was •sounded as defendant’s train approached.
    The court, at General Term, said : “ Did the plaintiff affirmatively .show her intestate free from contributory negligence? No eye. witnessed the accident. The circumstances proved in such a case must be such that from them may be drawn an honest, intelligent inference, that the deceased did what the law has declared a prudent man should do. The accident happened at night. Defend-ant’s train rounded a corner from Atlantic into Yan Sinderen avenue, about five hundred feet from Liberty avenue. Defendant’s ■engineer testifies, as the curve was finished he heard the whistle and bell of a Manhattan Beach train. The tracks of defendant and the Manhattan Beach Company are here laid in the same ■street. Defendant’s train was on a down grade, slackening then-pace, and with no headlight. The Manhattan Beach train was working up grade with a headlight, and with bell and whistle •sounding. The two trains passed at Liberty avenue, and just as the rear of the Manhattan train passed defendant’s engine, this engine ¡struck the deceased.

      “ This may fairly be inferred from the fact that the whistle blew down brakes at the sound of the blow to the deceased, at which time defendant’s superintendent saw the red light on the rear of the Manhattan train pass his engine. May not the further inference be-drawn that the Manhattan train, with the noise of its efforts upgrade, and the sound of its bell and whistle, and the glare of its. headlight, engrossed deceased’s thoughts for safety; that he watched this train approach and pass toward defendant’s train, and in spite of his looking toward defendant’s train it stole silently down grade-upon him without headlight, bell or whistle ?
    “We think the case nearer the case of Waldele v. H. Y. C. dell. R. R. R. Co. (19 Hun, 69), than that of Cordell v. N. Y. C. de JET. R. R. R. Co. (75 N. Y., 330), and that the question of defendant’s negligence and plaintiff’s intestate’s contributory negligence-, were rightly left to the jury.”

      Henry W. Johnson, for the appellant.

      Theo. H. Melvin, for the respondent.
   Opinion by

Dykman, J.;

Barnard, P. J., and Gilbert, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BETSEY HUSTIS and others, Administrators, &c., of SAMUEL HUSTIS, Deceased, Plaintiffs, v. HENRY GREEN and others, composing The Board of Town Auditors of the Town of Fishkill, Defendants.

      Town bonis — deposit by the supervisor with, a bank, of the money to pay such bonds■ —when the bank will not be held to act as the agent of one, by whom bonds home-been deposited with it for safe keeping.

    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a verdict in favor of the: defendants, directed at the Circuit.

      The action was brought to procure a mcmdairms to compel the Board of Town Auditors, of the town of Fishkill, to audit certain town bonds, owned by the plaintiff’s intestate.
    The court, at General Term, said : “ This judgment should be reversed. The evidence shows that plaintiff’s intestate had four bonds-of $500 each, issued by the town of Fishkill. These bonds were all due March 1, 1876, and were all, by their terms, payable at the National Bank of Fishkill. The bonds were in the vaults of the bank, in an envelope, for safe keeping, for Mr. Hustis, the owner. On March 1, 1876, the bank credited Hustis with the coupons. Hustis claimed the principal, probably. The cashier of the bank testifies, £ he may have done so; ’ he also testifies that in March, 1866, £ the coupons were cut off and the bonds put back in the envelope, and that caused the fact to he overlooked that the bonds were due.’ The supervisor of the town deposited money to meet the bonds, principal and interest, and the bank credited it to £ bond and coupon account.’ The bank failed in the spring of 1877. It does not appear that Hustis had any connection with the bond and coupon account in the bank. I assume certainly, he did not. As I read this transaction, the cashier falsely told Hustis his bonds were not due in 1876 ; that the bank used the money, being in financial difficulty, probably, as it failed soon after. That the credit to bond and coupon account was only a piece of book-keeping by the bank, and was not in any sense a payment of the bonds to Hustis. At all events, the bank were not agents of Hustis in the receipt of the money from the town. If Bartow, the cashier, was authorized to-collect of the bank, he never did collect the principal of these bonds.
    The case should have gone to the jury. The exceptions are sustained, and a new trial granted, costs to abide event.

      JET. EEL. Hustis, for the plaintiffs.

      Peter Dorland, for the defendants.
   Opinion by

Barnard, P. J.;

Gilbert and Dtkman, JJ., concurred.

Exception sustained, .and judgment for defendants by direction of court reversed, and new trial granted, costs to abide event.


text:
    In the Matter of the Petition of MARTHA C. KUHNE, Respondent, v. HENRY DAILY, Jr., &c., Appellant.

      Attorney — power of the court to compel him to deal justly with his client — a referee map he appointed to tahe proof of the facts.

    Appeal from an order made at Special Term, referring it to a referee to take proof of the matters set forth in the petition of the relator, and of such pertinent matters as should be submitted by the respondent in answer thereto, and of matter in reply, and to take and state the account between the parties and submit the same to the court, with his opinion thereon. This proceeding was instituted by the relator to compel the respondent, an attorney and counselor at law, to settle her account, and compel him to transfer certain property to her.
    The court, at General Term, said : “ The object of this proceeding is to afford a suitable remedy to this petitioner, for alleged misconduct towards her on the part of her attorney.
    “No adjudication of the matters involved has yet been made, but the court has merely ordered a reference to ascertain the requisite facts preliminary to such an adjudication. The jurisdiction of the court to entertain a summary proceeding like this, for the puipose of compelling an attorney to do justicq to his client, cannot be doubted. It springs from its power and duty, both at common law and by statute, to exercise needful control over the conduct of the officers of the court. (Gr. Pr., 52; BowVmg Green Sawings Blc. v. Todd, 52 N. Y., 489.) If on the final hearing it shall appear that the respondent has not been guilty of any misconduct, or that justice requires that the controversy should be determined by action, the court may so order. But in the meantime the reference should not be interrupted upon the respondent’s assertion of a right to trial by jury.”

      Order affirmed, with $10 costs, and disbursements.

      Daily & Orosby, for the appellant.

      A. H. Dailey, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J.; Gilbert and Dykman, J«L

Order affirmed, with costs and disbursements.


text:
    THE ONTARIO BANK, Respondent, v. WILLIAM HANLON, Appellant.

      Ya/i'iance betmeetn bills of lading — the terms of the one given to the shipper control.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The plaintiff had a cargo of grain at Oswego, on the way from Toronto to New York city. The defendant received the grain at Oswego, and carried it inhis canal boat to New York. This action is one of replevin for the cargo, the defendant having refused to deliver it to the plaintiff. The dispute came from variance between the two bills of lading. The one bill, delivered by Erost & Co., claiming to be defendant’s brokers, to Randell & Co., plaintiff’s agents at Oswego, gave to the plaintiff a right to hold the cargo in defendant’s boat at $2 a day after thirty days, but failed to put a limit to the timé the cargo might be so held. The second bill, given by Erost & Co. to defendant, and kept by him, limited the time of holding to April 1. The cargo was in defendant’s boat on April 20. On that day plaintiff tendered defendant $204, an amount in excess of the sum due under its bill, and demanded dis-. charge of the cargo. The defendant claimed, under the bill kept by him, that the contract terminated April 1, and that thenceforth ordinary demurrage at two and one-half per cent, per day on the freight should be paid.

      The court, at General Term, said: “ The contract between ship- and shipper is contained in the bill delivered to the shipper. If the bill kept by the captain differ, the shipper’s bill prevails and the captain’s must fall. (The Thames, 14 Wall., 98.)
    “ There is this further element at bar. Frost & Co. were defendant’s agents. lie paid them. They contracted with plaintiff’s agents that defendant should carry plaintiff’s grain, and prepared two bills of lading, and gave one to plaintiff’s agents and the other to defendant. It stands as if defendant knew of both bills. If so,, he is bound by the bill given plaintiff, and estopped from asserting-the other. On March 25 everything was paid, save $100 of freight, which was to be retained until full discharge. According to our theory the captain was entitled to $2 a day for holding, and $54 was due April 20. The tender was of $204. Thereupon plaintiff was entitled to its grain, and its right of action was perfect.”
    Judgment affirmed, with costs.

      Ahocm T. Payne, for the appellant.

      E. T. Wood, for the respondent.
   Opinion by

Dykman, J.;

Barnard, P. J., and Gilbert, J., concurred.

Judgment affirmed, with costs.


text:
    ISAIAH T. WILLIAMS and ROYAL S. CRANE, Respondents, v. LORIN INGERSOLL and others, Appellants.

      Agreement that attorney shall he compensated out of the fund recovered — when it creates an equitable lien — priority of such lien over that of an attachment issued, under a judgment recovered against the clAent.

    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court, without a jury.
    The defendants, Lorin Ingersoll and James H. Ingersoll, became liable to pay to tlie defendant Heath the sum of $10,000, under .and in virtue of an award made by Charles O’Conor, Esq., as arbitrator, bearing date September 16, 1878.
    The complaint alleged that while the plaintiffs were rendering services, as attorneys, to Heath, in actions which were afterwards submitted to the arbitrator, it was agreed that they should be paid for their services out of any moneys that should be obtained by Heath, .and should have a lien thereon superior to any right that Heath might have thereto. By virtue of which agreement the plaintiffs •claimed to be entitled to recover the said fund as the equitable assignees thereof.
    The defendants, Brady and Ivins, claimed a lien upon the same money in virtue of an attachment levied in the State of Connecticut, against Heath, to secure a claim in their favor against the said Heath. The question presented was which of the two parties claiming this $10,000 had the superior right thereto. The defendant Heath put in no answer, and the bill as to him was taken as confessed.
    The court, at G-eneral Term, said: “ The judge at Special Term found that the agreement between the plaintiffs and Heath, set forth in the complaint, was made, and we think that the evidence .amply supports the finding. The objection that the action is one to recover demands due to the plaintiffs seferally, and not a single ■demand due to the plaintiffs jointly, is not tenable, for the reason that such objection was not taken by demurrer or by answer. (Code ■Civ. Pro., § 499.)
    “Moreover, Heath made no defense, and so admitted the cause •of action in the mode in which it is averred. Nor can it affect the .rights of the other defendants to allow a recovery for a joint demand, for the amount thereof would not be increased thereby. The agreement mentioned is the same, in legal effect, as that in Brown v. Mayor (11 Hun, 21), which was held to have created an ■equitable lien. That decision is in accordance with general principles. An agreement to give a mortgage, or to appropriate specific property to the discharge of a particular debt, may create a mort.gage which will have precedence of subsequent judgment creditors. {1 Lead. Cas. Eq., 4 Am. ed., 954, note to Bussell v. Bussell ¡

      National Bank of Norwalk v. Lanier, 7 Him, 623 ; Bwrdiok v. Jackson, Id., 488 ; Ohase v. Peck, 21 N. Y., 581; Payne y. Wilson, 74 N. Y., 348, and authorities cited.) We are of the opinion that the agreement proved in this case was sufficient to create a valid, equitable lien upon the fund in controversy, and that the agreement having been made before the defendants, who are creditors of Heath, acquired any interest in said fund, it gave to the plaintiffs a prior right thereto. We think the statute of frauds affords no bar to the action. [Lowry v. Tew, 3 Barb. Ch., 413.)”

      A. T. Oonypton and Odie Glose, for the appellants, Ingersoll.

      Alfred B. Gruikshank, for the appellants, Brady and Ivins.

      L T. Williams, for the respondents.
   Opinion by

Gilbert, J.;

Barnard, P. J., concurred: Dvkman, J., not sitting.

Judgment affirmed, with costs.


text:
    HARVEY P. FISHER, Respondent, v. DAVID VERPLANCK, Executor, &c., Appellant.

      Evidence — when a memorandum made by a witness is inadmissible.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The court, at General Term, said : “ The referee erred in respect to the memorandum made by Boice for Carroll, a witness for plaintiff. The plaintiff is a carpenter, and his claim is for work done by him for defendant’s testator. There is abundant proof that plaintiff did work for the deceased for many years before his death, which happened in August, 1874. It is quite evident that the plantiff did not work by the year; this is shown, by the plaintiff’s bill of particulars, and by the nature of the work said to have been done. It was not absolutely continuous. The statute of limitations was pleaded, and as to a very considerable part of the plaintiff’s claim is a good answer, unless the claim is kept alive by payments. A portion of tbe work is alleged to have been performed within the six years before the testator’s death. It became of controlling importance upon the trial to show the work done as it was done by plaintiff as to the time and amount. A Mr. Carroll was called as a witness, to show the work done in 1870, 1871 and 1872; he was a carpenter, who had worked for deceased with plaintiff in these years. He had no memory as to number of days either he himself had done, or plaintiff had done for deceased in these years. Carroll testified that one Boice had made out his — Carroll’s—bill against deceased from an old almanac, upon which Carroll had marked the days he worked. The almanac was not produced, neither was Boice called. This memorandum (Carroll’s bill) was admitted, and from it the time of Carroll was established. Carroll testified that the plaintiff worked more than he did. By this evidence some six hundred and fifty-two days’ work was established for Carroll, and by the same evidence was established the same amount at least for plaintiff. The memorandum was the merest hearsay. Carroll is assumed to have made out the bill correctly without proof, and even the basis for this assumption is not produced. After the case was submitted the referee rejected the memorandum, but did not reject the proof of the result evidenced by the memorandum. The finding is a general one, and the case does not, therefore, show that no injury resulted from the illegal evidence.”

      A. JB. Tajppcm, for the appellant.

      W. Brown, Jr., for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert, J., concurred; Dkyman, J., not sitting.

Judgment reversed, and new trial granted at Circuit. Costs to abide event. Order of reference vacated.


author: Dykman, J".;

text:
    THOMAS C. VAN BRUNT, Appellant, v. JOHN AHEARN and MARY AHEARN, Respondents.

      Action to remove obstructions from highway — damages recoverable in — what evidence is not admissible to mitigate them.

    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    This action was brought for the removal of obstructions to a way, and to recover damages therefor. The complaint alleged that the plaintiff was the owner of two lots of land on a street called Catharine street, in the town of Flatbush, Kings county, and had a right of way through that street to pass on foot and with vehicles at all times, and that the defendants had obstructed the street by building a house in it, and erecting a fence across it. The relief demanded is that the obstructions be removed, and the defendants restrained from further interference with the street, and the plaintiff recover damage.
    The court, at General Term, said: “ On trial of the cause the defendants were permitted to prove, over the plaintiff’s objection, that since the commencement of this action the plaintiff had sold and conveyed the portion of his lots fronting on Catharine street, to a railroad company. This testimony was, doubtless, introduced with a view to the diminution of damages ; but in no view was it relevant or proper. The rights of the parties were fixed when the action was commenced, and the damages then sustained could not be avoided by proof that after that time a portion of the premises was sold off.....
    The two lots of the plaintiff were conveyed to him as fronting on Catharine street, as laid down on a map of the premises, filed in the office of the register of Kings county, and his conveyance gave him the right to the use of the street as soon as it was made. (Bisséll v. New Fork Geni/rál R. R. Go., 23 N. Y., 6J.)

      Alfred B. Gruihshwnk, for the appellant.

      Frank Orooke, for the respondents.
   Opinion by

Dykman, J".;

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

Judgment reversed, and new trial granted at Special Term.


text:
    FRANCES McKIERNAN, Respondent, v. BENJAMIN W. ROBINSON and others, Appellants.

      Jjeme to bring an action at law on guaranty, after one has been brought to foreclose a mortgage — when it should be granted nunc pro tunc after the latter action has been commenced.

    Appeal from an order made at Special Term, denying a motion to vacate and set aside an ex forte order made by Justice Cook, granting leave to tbe plaintiff to prosecute an action at law, in the Marine Court of the city of New York, against John Fraser, name fro time, as of May 10, 1880, without prejudice to proceedings already had.
    John Fraser, the defendant, by an assignment dated June 4, 1870, in consideration of $3,700, assigned to Frances McKiernan, the plaintiff, a mortgage executed by Benjamin "W. Robinson to Abbey "Welwood, dated January 30, 1867, given to secure the bond of the said Robinson to her, conditioned for the payment of $4,500, on or before February 1, 1873, with interest at 7 per cent, half yearly. This mortgage had been assigned by the said Welwood to one Downing, and by him to Fraser. In the assignment to Mrs. McKiernan the defendant covenanted that there remained due of principal $3,700, with interest from February 1, 1870, and there was a guaranty in these words: “ And I do further guarantee to the said party of the second part the punctual payment of said principal and interest.” In August, 1879, the plaintiff commenced an action for the foreclosure of the mortgage. Fraser, by the permission of the plaintiff, managed the foreclosure action and left out his own name as one of the defendants. He told the attorney that Mrs. McKiernan, the plaintiff, was willing to wait for her money until he, Fraser, could foreclose and sell the property. At the sale the property did not bring enough to pay the mortgage debt. The plaintiff then sued Fraser upon the covenants, without having obtained leave of the Supreme Court according to the provision of the Revised Statutes, his failure so to do being set up by Fraser in his answer, as a defense to the action. Alter the action was at issue the plaintiff obtained, ex pa/rte, an order giving him leave to sue mme pro tnme. Fraser applied to set the order aside as irregular and improper, and his application having been denied, he brought this appeal.
    The court, at General Term, said: “ The only point presented is-whether the ex parte order was right. The facts show a clear case where the order should have been given. Fraser owed the money • he was not made a defendant in the foreclosure suit at his own request, and upon the pretense that he would pay plaintiff after the sale. He neither bid in the property nor paid the mortgage debt. There is no reason why he should not be sued. He was not entitled to notice in the foreclosure action, as he was not a party to it. No injustice has been done by the ex parte order. If it be vacated, and the pending action defeated by reason thereof, there would be no gain to Fraser beyond the cost of the pending action. It would then take three actions to accomplish a result which one should have accomplished. It was proper to grant the order nime pro time. The merits were not involved. If it was proper to grant the order, it was proper to grant it to supply an omission to procure it in time. {Earl v. Do/oid, 20 Hun, 529.)”

      James G. Hays, for John Fraser, appellants.

      Jolm Hamilton, for the respondent,
   Opinion by

Barnard, P. J.;

Dykman, J., concurred; Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    ABRAHAM FOWLER, Respondent, v. JOHN F. BRENNECKE, Impleaded, &c., Appellant.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.;

Dykman, J., not sitting.