author: Hardin, P. J.

text:
    David Murphy et al., Resp’ts, v. Stickley-Simonds Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Contract—Performance—Question of fact.
    Whether there was, or was not, a performance of a contract, is a question of fact to be determined upon all the evidence and circumstances relating thereto.
    2. Same—Excuse for non-performance.
    A failure to complete within the specified time which was due to the delay which the owner caused, will not prevent the contractor from recovering.
    3. Same—Substantial performance.
    A finding of substantial performance is not inconsistent with findings of defects and deficiencies amounting to only about six per cent, of the orig inal contract price.
    Appeál from a j udgment in favor of plaintiffs.

      Hoyt & Farrington, for app’lt; Stone, Gannon & Pettit, for resp’ts.
   Hardin, P. J.

Plaintiffs, carpenters and contractors, on the 4th day o£ May, 1892, entered into a contract with the Stickley-Simonds Company, of the city of Auburn, to furnish materials necessary to the erection and completion of all work according tO' plans and specifications prepared by an architect for the erection of a factory building at Eastwood Heights, near the easterly limits-of the city of Syracuse, and the defendant-stipulated to pay therefor the sum of $22,000, payments to be made “during the progress of the work upon the estimate of the architect.” The owner reserved “the privilege of changing any part of the labor or materials without in any way invalidating the contract.” The contract contained a provision, viz.: “ All questions arising under this contract, as far as labor, materials, etc., may be concerned, shall be decided by the architect, and his decision shall be binding and final."

It was provided in the specifications, viz.: “The proprietor shall have the right to make any alterations, additions, or omissions of work or materials herein specified or shown on the plans, during the progress of the work, that he may find necessary, and the same shall he acceded to by the contractor or contractors, and carried into effect without in anyway violating or vitiating the contract.”

It was further provided in the specifications, viz.: “ The architect and proprietors shall have full power, at any time during the progress of the work, to reject any materials that they may deem unsuitable for the purposes for which they are intended, or which are not in strict conformity with the spirit of these specifications.”

On the 10th of October, 1892, the architect, having made an inspection of the factory building, certified that the contractors have “satisfactorily completed their contract for carpenter work on the same, and are entitled to the balance of money due by the terms of the contract.” On the 10th of October, 1892, the contractors verified a claim and notice of a lien, and filed the same with the clerk of Onondaga county, in which they claim the principal sum of $8,728.40, and interest from the 10th of October, 1892, “for the price and value of such labor and service and materials upon such house, building, or factory and appurtenances, and upon the lot, premises, parcel, farm of land upon which the same stands.”' Prior to the filing of the lien, several payments had been made upon the contract, and the next day after the same was filed, to wit, on October 11, 1892, the further payment of $2,250 was made on the contract, and on the 9th of January, 1893, this action was commenced to foreclose the mechanic’s lien, and the amended complaint asked to recover the balance of $6,543.40, and $600 for extra work. The defendants answered, admitting the execution of the contract, and alleged its non-performance, and set up certain defects and counterclaimed therefor. The referee found, as matter of fact, viz.: “ The plaintiffs, under and pursuant to the terms of said contract, substantially performed the work and furnished the materials called for by said plans and specifications for the erection of said factory building, and substantially complied with said contract.”

That finding is challenged by the appellant. Upon the hearing, extensive evidence was given upon the question involved in the finding in behalf of the plaintiffs, and evidence tending to the contrary was offered by the appellant. We are of the opinion that, the finding made by the referee is not against the weight of evidence, and that his conclusion upon the whole evidence in that regard should be accepted. It is now well settled that whether there was a substantial performance or not is a question of fact to be determined upon all the evidence and circumstances relating thereto. Phillip v. Gallant, 62 N. Y. 257; Glacius v. Black, 50 N. Y. 145; Nolan v. Whitney, 88 N. Y. 648; Lewis v. Yagel, 77 Hun, 337; 60 St. Rep. 23. And it has been held in numerous cases that a substantial performance of a building contract is suffV cient to sustain the right of a lien. Wright v. Roberts, 43 Hun, 413; 6 St. Rep. 769; Van Clief v. Van Vechten, 48 Hun, 304; 15 St. Rep. 896; Hollister v. Mott, 32 St. Rep. 743; 10 N. Y. Supp. 409; Heckman v. Pinkney, 81 N. Y. 211; Lewis v. Yagel. 77 Hun, 337; 60 St. Rep. 23; Van Clief v. Van Vechten, 130 N. Y. 579; 42 St. Rep. 736. In Van Clief v. Van Vechten, supra, Yanüst, J., said: “ The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the contract, and has succeeded except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission. ” See page 579, 130 N. Y. and 42 St. Rep.

It is contended in behalf of the appellant that the plaintiffs willfully refused and neglected to perform the contract according to the plans and specifications. Upon looking into the evidence before the referee, we are of the opinion that it does not sustain the contention of the appellant, but, on the contrary, it warrants the conclusion that the defects and deficiencies for which the referee awarded damages to the appellant did not accrue by reason of any intentional or willful purpose on the part of the contractors. Van Clief v. Van Vechten, 130 N. Y. 571-579; 42 St. Rep. 736; Lewis v. Yagel, supra. Although the contract was not completed within the time specified, there was evidence warranting a finding that the failure was due to the delay which the defendant caused, and therefore such failure to complete does not prevent a recovery. Beinhauer v. Gleason, 15 St. Rep. 227; affirmed, 119 N. Y. 658; 29 St. Rep. 994; Close v. Clark, 30 St. Rep. 671; 9 N. Y. Supp. 538. It seems the defendant failed to procure a switch from the railroad company, so that the materials could be brought to the location of the building, and the defendant caused some delay by failure to get machinery in the building; and the evidence discloses sufficient basis for a finding that the defendant waived the stipulation in the contract in regard to the time of completion of the contract. Smith v. Alker, 102 N. Y. 87. The referee specifies several minor defects and deficiencies which were disclosed by the evidence, and allows damages to the defendant in such sums as lie deemed, upon the evidence, sufficient to remed}*’ the defects and deficiencies. He found that it was worth only $150 to repair and properly set the window frames and sash in the building according to contract and specifications. Itis contended, in behalf of the appellant, that the allowance is not sufficient, and that there was no other evidence than that given by Miles T. Uardenier, a witness who was called in behalf of the defendant, and who, upon that subject, said: “It would be worth between $400 and $500. In order to put these windows and frames in a proper condition, the frames would have to be taken out, fixed, and reset, and the sash refitted.” The contention of the appellant in that regard cannot prevail. Colton, the architect, in the course of his cross-examination,, testified: “I will swear positively those windows could be properly constructed or reconstructed, the day I was there, in a half day by the best carpenter or workman”; and he gave other evidence bearing upon the question of remedying0 the supposed defects in the windows. Inasmuch as the re. feree’s finding is upon conflicting evidence, it should prevail. Scattergood v. Wood, 14 Hun, 269; Sinclair v. Tallmadge, 35 Barb. 602; Roosa, v. Smith, 17 Hun, 138.

It is contended by the appellant that the findings of the referee are in conflict, inasmuch as, after finding that there was a substantial performance of the contract, he has found several minor defects, and awarded damages therefor. It appears, however, that the contract price for the building was $22,000, and that the amount of damages which were allowed for the defects or deficiencies amounted to only 6 per cent, of the original contract price; and we think the referee kept within the rule which provides that where there has been a substantial performance of the contract, and there are minor defects and deficiencies which can be compensated in damages, a recovery should be allowed for the amount justly and equitably found due to the contractors.

Appellant contends that the lien filed is invalid, and contends that the plaintiff well knew, at the time it was filed, that they had not actually completed all the work and furnished all the matertials called for by their contract. The assumption of the appellant is contrary to the evidence offered by the plaintiffs, and the appellant invites our attention to Foster v. Schneider, 50 Hun, 151; 19 St. Rep. 449, which differs quite essentially from the case before us. There a plumbing contract had 'been made in respect to three houses, and, when the lien was filed, confessedly a large portion of the work had been performed. The contract price was $2,400,’ and the referee found that the sum of $860 for services and materials would be required to complete the contract, and that on one of the houses it wonld require $330. And in Close v. Clark, 30 St. Rep. 671; 9 N. 7. Supp. 538, it was said, viz.: “Confessedly, they [the contractors] had not attempted to provide several things called for by the contract”; and reference was made to Foster v. Schneider, supra, and the notice was held to be insufficient. We think that case differs from the one in hand, as here the plaintiffs, according to the findings, had substantially performed all the work and furnished all of the materials to complete their contract, and in good faith intended to complete the same, although it appears from the evidence there were subsequently found some defects and deficiencies for which compensation has been allowed by the referee. Besides, there is some evidence in the case tending to show that the building had been accepted, and that the defendant had waived any defects; and as bearing upon that view of the case is the circumstance that, after the lien was filed, the defendant voluntarily paid $2,250 towards liquidation of its liability upon the contract as a completed contract.

2. We think that the defendant was not prejudiced by the refusal of the referee to take the opinion of the witness as to how far it was necessary to remove the benches to avoid the dampness coming into the windows. The fact was received that the snow comes in, and that dampness occurred by reason •of the defects in the windows. We think the referee was sufficiently liberal in taking the facts relating to that subject.

3. Nor do we think it was prejudicial error for the referee to-allow, in the exercise of his discretion, the liberal latitude in the cross-examination of the witness Gardenier, with a view of affecting his credibility.

4. Nor do we think it was error to allow the witness Gee tosíate the experience he had had in the construction of buildings,, with a view of qualifying him to speak upon the various questions upon which he was examined. In Close v. Clark, 30 St. Rep. 671; 9 N. Y. Supp. 538, which was an action to foreclose a mechanic’s lien, the court observed : “This is an action inequity, and the court would therefore use every effort to do substantial justice between the parties.” The learned referee has exercised his sound judgment upon the sundry questions presented to him on the trial, and we are inclined to the opinion that his conclusion is in accordance with the rules of law, and in furtherance of justice and equity. Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    George L. Munroe et al., App’lts, v. Priscilla H. Judson, Resp’t.

      {Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Partnership—Agents.
    Where each of three married women, who compose a firm, gave to her husband a power of attorney to transact all business for her, and the conduct of the firm business was divided between them, the husbands are agents of the firm and not of the individual partners, 0

      2. Same—Liability.
    In such case, the defalcations of one husband are chargeable as losses of the firm, and not against his wife’s share.
    Appeal from a judgment dismissing the complaint.

      F. F. Hamilton, for app’lts; Miller, Fincke & Brandagee, for resp’t.
   Hardin, P. J.

Mary A. Munroe, Mary A. Stroup, and Priscilla H. Judson (the defendant), in-April, 1881, formed a copartnership in the city of Oswego for the purpose of dealing in unleached ashes, which were to be purchased in Ganada by the firm, and sold in the United States and in other places, as should be. found profitable. Each partner was to contribute capital for the purpose of carrying forward the business, and each was to be entitled to an equal share of the profits that might be realized in the partnership business, and each was to share her equal portion of any loss or losses that might be incurred or met in the operations of the said partnership. The business carried forward was actually under the supervision of the husbands of the three female partners, and the business was continued until the 1st day of February, 1892, when by mutual consent it was dissolved. Defendant’s husband, David H. Judson, died on the 14th day of November, 1891. At the time of the dissolution there were certain moneys on deposit belonging to the firm, and there were certain demands and bills receivable uncollected. Plaintiffs, in their complaint, charge against the defendant, viz.: “That since the commencement of the business operations of said partnership the defendant has from time tó time received, and applied to her own use, from the moneys, receipts, and profits, of the said copartnership business, large sums of money, greatly exceeding the proportion thereof to which she was and is entitled, amounting in the aggregate to about the sum of $30,000, including interest, or thereabouts, the precise amount of which is more in the knowledge of the defendant, than the plaintiff; and, in order to conceal the same, said defendant, who has always had the keeping and management of the copartnership books, by and through her duly-authorized agent, has falsified the account thereof by false entries, and failure to properly balance and keep a true account of the transactions of said partnership firm, without the consent and knowledge of the other members thereof, and which defendant, although often requested so to do by plaintiff, has neglected and refused to account for, and pay to the plaintiffs his or her share thereof.”

It was alleged in the complaint that on the 19th of August, 1892, Mary A. Munroe assigned and transferred all her interest in and to the partnership, its assets, and claims against the partners and other persons growing out of the partnership transaction, to her husband, George L. Munroe. And it is also alleged “that the said sums so claimed to be due from the said defendant to the plaintiffs aggregate $30,000 or thereabouts.”

Complaint is made by the appellants of certain findings of fact made by the learned referee, and stated in his report. A careful examination of the evidence leads to the conclusion that the material findings of fact made by the referee are supported by the evidence, or the proper inferences to be deducted therefrom. At about the time of the formation of the partnership, it appears that the husbands of the partners were insolvent, or substantially so, and that they conceived the idea of the formation of the partnership, and the transaction of the business in the names of their wives as such partners, and that, to further that purpose, three several powers of attorney were executed by the respective wives to the respective husbands, authorizing them to transact any or all business for and in their behalf. After the execution of such powers of attorney and the formation of the copartnership as aforesaid, it was understood that George L. Munroe was to do the principal buying in Canada, and David H. Judson, was to keep the books and manage the financial part of the firm’s business at an office in the city of Oswego, and that Jacob Stroup was to sell the ashes and make collections. After the business of the firm commenced, the several husbands' entered upon the discharge of their respective duties for and in behalf of said firm, and at the close of each year balance sheets or statements of the affairs were prepared in behalf of said firm, and a copy inspected by each of the husbands from year to year, and upon the balance sheets it was indicated that one-third of the profits was to be distributed in accordance with the terms of the copartnership. It seems to have been understood that $1,000 should be allowed by way of compensation to each of the husbands, annually, for their services rendered for the firm, and that the only provision made for the payment, or the only payment made, was through the medium of the partnership assets. It appears satisfactorily by the evidence that the defendant executed to her husband, David H. Judson, a power of attorney substantially like the other two executed by the other wives to their husbands, and that, with the assent and knowledge of all the parties, the respective husbands acted as the agents of the firm in the transaction of the firm’s business. It appears by the evidence that the partners personally gave little or no attention to the business, and that the great bulk of the business was transacted by the agents of the firm, through the entire period of its existence. Undoubtedly the three wives, after the formation of the partnership, were capable of employing the three husbands to act as agents for and in behalf of the firm, and to clothe them, respectively, with power and authority to transact the firm’s business. Martin v. Rector, 101 N. Y. 77; Knapp v. Smith, 27 id. 277. Upon the evidence and upon the facts found by the referee, we think he was warranted in reaching the conclusion that “ the several husbands were each agents of the partnership collectively, and not of the individual partners,” in the transaction of the business of the copartnership. Under the evidence, we think a finding would not have been warranted by the referee that each wife, in consenting to the firm’s employing her husband as agent for the firm, guaranteed or undertook individually, to and with such firm, that the acts and doings of such agents for the firm should be performed with fidelity and honesty. On the contrary, the assumption seems to have been, in behalf of the firm, that the agents so employed should transact the business of the firm as employes of the firm, without any undertaking or security being given to the firm for the faithful discharge of the duties arising from such agency. Undoubtedly the principals in the partnership had implicit confidence in the agents employed by the firm to transact the business of the firm. Ho evidence is found in the appeal book indicative that the defendant had any knowledge of the peculations, abstractions or embezzlements carried forward during the existence of the copartnership by her husband; and although he was, in some respects, her agent to collect her rents on her separate property, and assumed to act for her in respect to her private affairs, there is no evidence found to indicate that he had any express or implied authority from her to commit any of the wrongful acts which were perpetrated by him against the partnership, and in the perpetration of such acts he was acting entirely without the scope of his authority and his agency for her individually, and also beyond the scope of his authority for the firm, and in violation of his duty to the firm; and the case seems to fall within the general rule that partners must contribute ratably “ to their shares of the losses and debts of the firm,” and, as Judson was the accredited agent of the firm, “ the losses growing out of his defalcation and negligence ” fall on the firm, and not on the members thereof individually. He sustained a fiduciary relation to the partnership. Holmes v. Gilman, 138 N. Y. 369; 52 St. Rep. 873. And the evidence fails to disclose any adoption or ratification by the defendant of his wrongful acts. In Smith v. Tracy, 36 N. Y. 86, in the course of the opinion delivered by Porter, J., he adds his approval to the language of Judge Story, where he says: “No doctrine is better settled, both upon principle and authority, than this : that the ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material facts.”

The case in hand is quite distinguishable from Henry v. Allen, 77 Hun, 49; 59 St. Rep. 424.

It seems quite manifest that when Judson took from the firm funds wrongfully, and concealed the fact by wrong entries on his books, and appropriated the funds to his own use, either by directly paying out the same, or depositing them in a bank to his own credit, he was not engaged, in any sense, in the business of his wife, or acting within the scope of any agency which she had created in her individual capacity, as contradistinguished from her relation as a member of the.firm. When he thus took possession of the funds of the firm, and diverted them from the firm’s use and ownership, he was acting in the service of the firm. The principal question involved has been very fully and very clearly discussed by the learned referee, and numerous cases cited, in the opinion which he delivered; and the views already expressed, as well as those stated by the learned referee, lead to the conclusion that upon the essential proposition the conclusion reached by the referee should be sustained.

Judgment affirmed, with costs.

All concur.


author: Per Cüriam.

text:
    Herman Goetze et al., App’lts, v. John Dunphy, Resp’t.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Evidence—Custom.
    Evidence of custom is inadmissible to change the meaning of an explicit guaranty in a sale of goods.
    Appeal from an order, denying a motion to amend the complaint.
    The contracts of sale were as follows :
    “New York, April 15, 1884.
    “ Sold for account Mess. Goetze & Popert, Hamburg, to John Dunphy, Esq., about 1,200 wet salted Danish calfskins, to weigh per invoice not less than 6 pounds, German (3 kos.), or more than 10 pounds, German (5 Icos.), each. May shipment, at 15c. per lb., net cash, delivered New York. Skins guaranteed not to lose over 6 per cent, from invoice weight.
    “ Pickard & Andresen, Brokers.”
    “ New York, April 22, 1884.
    “Sold for account Mess. Goetze & Popert, Hamburg, to John Dunphy, Esq., about 2,400 wet salted Danish calfskins, no skin to weigh less than 13 pounds, German, or more than 20 pounds, German, or an average, as per invoice, of about 16 pounds, German, at 14¿c. per pound English, nett cash; cost, freight, and insurance payable 30 days from delivery. Skins to contain about 50 per cent., without heads, 50 per cent, small heads, and one-third small shanks, and guaranteed not to lose over six per cent, from invoice weight.
    “Pickard & Andresen, Brokers {Gordon).”

    New York, May 8, 1884.
    “ Sold for account Mess. Goetze & Popert, Hamburg, to John Hunphy, Esq., 3,250 to 3,500 wet salted Holstein calfskins, no skin to weigh less than six pounds, German, or more than ten pounds, German, and containing about one-third wet salted Hanoverian calfskins, weighing from seven to eight pounds, German ; shipment about 1st half June, at 13|-c. per pound, English, nett; cost, freight, and insurance payable thirty days from delivery. To be of the usual good quality, and guaranteed not to lose six per cent, from invoice weight. Pickard & Andresen, Brokers.”

    The proposed amendment was by inserting in the complaint the following paragraph : That it is the usage and custom of the trade, under contracts for the purchase and sale of skins containing provisions of guaranty against loss from invoice weight like those contained in the three contracts before mentioned, to accept delivery of skins the loss of the weight of which from invoice weight exceeds the guaranteed percentage of loss, and to make and accept a deduction from the contract price as an allowance for such excess of loss of weight, and that such usage and custom is established, not casual; uniform, not varying; general, not personal,—and was known to and contemplated by both the parties to said contracts at the times of making thereof.

      JSvarts, Ghoate & Beaman, for app’lts ; Hobbs & Gifford, for resp’t.
   Per Cüriam.

Order affirmed, with $10 costs and disbursements, on opinion of court below.

The opinion of Mr. Justice Lawrence at special term on denying the motion to amend is as follows: This action is brought to recover damages for the failure to receive certain skins tendered to the defendant under the certain contracts for the sale thereof, in which there was a clause by which the skins were guaranteed not to lose more than six per cent, from their invoice weight. On the first trial of the action there was a verdict rendered in favor of the plaintiff, and upon appeal the judgment was reversed, and a new trial ordered. The new trial was ordered in the month of November, 1888, and the case was not brought to trial until the month of January, 1894, and upon said second trial an attempt was made to introduce evidence of custom with reference to the guaranty contained in each contract that the skins should not lose over six per cent, from their invoice weight. This evidence was excluded. A juror was thereupon withdrawn, with the consent of the court, in order that this motion might be made at special term, and the application comes from the court on those facts. I am of the opinion that the motion should be denied. The provisions of the guaranty in each of the three contracts under which the skins were -sold are clear and explicit, to wit, that the skins are guaranteed not to lose over six per cent, from invoice weight. There is certainly no ambiguity in this language, and the rule is too well settled that usage and custom cannot be proved to contravene a rule of law or to alter or contradict the express or implicit terms of a contract free from ambiguity, or to make the legal rights or liabilities of the parties to contract other than they are by the terms thereof. Hopper v. Sage, 112 N. Y. 530; 21 St. Rep. 491; Markham v. Jaudon, 41 N. Y. 236; Bradley v. Wheeler, 44 id. 495; Baker v. Drake, 66 id. 518. In this particular case the usage or custom of the .trade which is sought to be pleaded is an allowance for any excess of loss of weight over and above six per cent, from the invoice weight. Such a usage or custom would be entirely in conflict with the plain terms of the guaranty, and it therefore results that the motion must be denied on that ground, with costs.


text:
    William Rowe, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Deparrtment,

      Filed December 7, 1894.)

    1. Negligence—Contributory—Presumption.
    Where no negligence on the part of the plaintiff is shown, it is properly assumed at the trial that he was free from contributory negligence.
    3. Appeal—Verdict.
    A verdict will not be disturbed as excessive, unless the amount is so great as to indicate that the jury were influenced by prejudice or passion.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      C. D. Prescott, "for app’lt; Timothy Ourtin, for resp’t.
   Hardin, P. J.

Chapter 565, art. 2, § 36, of the Laws of 1890, provides that “ all trains and locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hundred nor more than eight hundred feet from th.e crossing and shall then cross only when the way is clear and upon a signal from the watchman stationed at the crossing.” The evidence discloses that the defendant did not comply with the statute, and by reason thereof the accident occurred. Its train, at the time of collision, was going at the rate of about ten miles an hour. No negligence was shown on the part of the plaintiff, and it was properly assumed at the trial that he was free from contributory negligence. Chapman v. New Haven R. R. Co., 19 N. Y. 341; Masterson v. N. Y. C. & H. R. R. R. Co., 84 id. 256; Bagley v. Bowe, 105 id. 171. The car in which the plaintiff was seated was struck- by the defendant’s engine, and a hole knocked in it, and on the occasion of the collision the car in which the plaintiff was seated was thrown off the track, and apparently with sufficient force to overturn the freight house. The engine and smokestack and cowcatcher, after leaving the track, were severed from the tender of the engine; and evidence was given tending to show that the plaintiff was thrown from the seat he was sitting upon, striking upon his left hip and side, and that he was thrown across the car, which was tipped over on its side; and on the morning of the accident the plaintiff found bruises on his left hip and side and several other places on his back, and he oti that day procured liniment of Dr.'Liudslay, and applied it to the injured parts, and there is some evidence tending to show that the morning he arrived home he was lame, looked pale and haggard, and subsequently thereto was obliged to carry a cane for several months, and that prior to the injuries he was a strong, healthy man, about twenty-five years of age; that he had theretofore never received any injuries, or been ailing; that his usual weight was from 185 to 190 pounds, and that his weight at the time of the trial (October 9, 1893) was 161 pounds. Upon the trial several physicians in behalf of the plaintiff testified in effect that the defendant’s left limb is shorter than the right, and that there is a curvature of the spine in the lumbar region; that the left side of the pelvis was let down or lowered, and that the buttock on the left side was smaller than the right, and that the left limb, near the hip, was smaller, and the flesh flabby, and measured less than the right, and that the right shoulder was lowered, and that a deformity exists which is quite observable. Numerous hypothetical questions were propounded to the physicians called on either side, and their opinions somewhat differ as to the physical condition of the plaintiff at the time of the trial, and as to the causes which induced the conditions found upon an examination of the plaintiff, and as to whether the injuries will be of short duration, recovered from within a limited period, or whether they will be permanent. One of the physicians testified that “a degree of inflammation severe enough to produce permanent changes in the length of the limb would be attended by heat, pain, swelling and a much restricted function or ability to move the joint; a limitation of motion.” Dr. Sutton, one of the defendant’s physicians, testifies: “ I don’t think he (plaintiff) could have been injured in the accident sufficiently to have produced any shortening of the limb, which I say was the basis of the other trouble, without having been disabled for some considerable time.” And Dr. Flandrau testified: “The obliquity of the spine, and all that sort of thing, results from the shortening of the limb. It is wholly compensatory.” And the-physicians, in their opinions, seem to indicate that if the plaintiff had been sufficiently injured in the accident to have produced the shortening of his left leg as stated, he would have been immediately and continuously disabled; and the defendant gave evidence from several witnesses tending to establish a declaration made by plaintiff after, the accident that he had not received any injuries of any importance.

The defendant produced considerable evidence tending to show the habits and practices of the plaintiff, and his acts and doings subsequent to the injuries, with a view of indicating that he had received no such injuries as were detailed by him and his witnesses. Among other circumstances disclosed by the evidence of the defendant, it appears that the plaintiff attended a raising of a church bell at West Monroe, and aided in placing the same in the belfry, and that the plaintiff volunteered to aid in properly placing it; that he climbed a ladder, and went over the roof into the belfry, and that this occurred within a month of the accident; and that some two months and a half after the accident the plaintiff attended a barn raising, aided in elevating the timbers, and wrent on top of the beams and drove in the pins to the frame, and that at about the same time he was at Danforth’s cider mill two hours, shovelling apples into a hopper, feeding the mill that ground the apples, and that he aided also in filling the barrels with cider from the vat, and in hauling poles in the fall; and that in the early spring after the accident he went to spearing fish, wading in the water, holding a lantern; and that on one' occasion he bought a wagon and tested it by lifting it; that he attended a picnic, and engaged in selling “ fakir wares ’’; that he did some harrowing and hoeing and chopped wood for family use, and drove in a wagon around the country, buying chickens, and that he drove on two occasions to Syracuse, some twenty miles from his residence, and that apparently he walked without impediment when he desired to; and also furnished evidence of various other acts performed by him ; and also called witnesses describing his appearance and condition, tending to indicate that he had received little or no injuries. One of the witnesses called testifies: “The state that I found him in was caused from natural conditions; that they were congenital.” Some of the incidents to which allusion has been made were disputed and explained by the plaintiff as a witness upon the stand, and it is pointedly urged by the learned counsel for the appellant that the acts and circumstances disclosed to which, in part, allusion has been made are wholly inconsistent with the fact of a serious injury at the accident,” and that there is “ no testimony that warrants the amount of the verdict in this case;” and the learned counsel calls our attention to Kummer v. C. & T. St. R. R. Co., 21 N. Y. Supp. 941, where it was said “It is the right and duty of the general term, on appeal from an order denying a new trial, to reverse the order when, in its opinion, upon the evidence, the case of the respondent is a fabrication; ” and to the case of Hamilton v. Third Ave. R. R. Co., 53 N. Y. 29, and Smith v. Ætna L. Ins. Co., 49 id. 211, which support the same doctrine, and recognize and assert the power of the general term to review the evidence, and set aside a verdict not satisfactory to the judgment of the court. In considering the argument of the learned counsel for the appellant, we must bear in mind that where a question of fact has been fairly submitted by the trial judge to the jury, and he has listened to the testimony, and exercised his power of supervision over the verdict, his action in the premises is entitled to have some influence with an appellate court in reviewing a verdict which he has sanctioned in refusing an order to set it aside, and that it is not the province of this court to interfere with a verdict under such circumstances, unless the amount is so great as to indicate that the jury were influenced by passion or prejudice. Valentine v. Broadway & S. A. Railroad Co., 16 St. Rep. 602; 4 N. Y. Supp. 481; Quinn v. L. 1. Railroad Co., 34 Hun, 33; Harding v. N. Y., L. E. & W. Railroad Co., 36 Hun, 73; Ehrgott v. Mayor, 96 N. Y. 279. In Dougherty v. R., W. & O. Railroad Co., 45 St. Rep. 154; 18 N. Y. Supp. 841; affirmed, 138 N. Y. 641; 53 St. Rep. 929, this court sustained a verdict of $4,750 as not being excessive, where it appeared that the plaintiff “ was confined to bed eight weeks, suffered much pain, and his leg was permanently shortened, and his nervous system affected.” Upon a review of the evidence found in the case now in hand it appears there is a conflict in respect to the many essential facts relating to the extent and character of the plaintiff’s injuries, and there is considerable evidence tending to indicate that there has been an exaggeration on the one side, and many facts offered on the other tending to belittle the extent of the injuries sustained by the plaintiff ; and perhaps, if the question was an original one, and we were at liberty to follow that line of evidence which makes most favorable for the defendant, we might reach a different conclusion from the one pronounced by the jury as to the extent of the injuries sustained by the plaintiff. However, we regard it as within the province of the jury to determine where the truth is when the evidence is conflicting, and that the verdict under the circumstances is not such a one as indicates partiality, prejudice, or corruption, and therefore we reach the conclusion that within the authorities that are applicable to such situations it is the duty of the court to sanction the verdict of the jury. Judgment and order affirmed, with costs.

All concur.


author: Hardest, P. J.

text:
    Holister E. Hesler, App’lt, v. C. Frederick Shafer, Resp’t.

      {Supreme Court¡ General Term, Fourth Department,

      Filed December 7, 1894.)

    Appeal—Conflicting affidavits.
    Where the right to a temporary injunction depends upon the construction of a lease between the parties, an order vacating such injunction will not be disturbed on appeal.
    Appeal from an order vacating an injunction in part.

      Homer Weston, for app’lt; Ide & Ryan, for resp’t.
   Hardest, P. J.

Plaintiff, in January, 1894, took from defendant, the owner, a lease of certain premises described in the complaint. In the lease was a reservation in the following words; “ That he will permit the landlord or his agents to enter said premises at all reasonable hours, to examine or make such repairs and alterations therein as shall be necessary, or as he may consider important, for the preservation and improvement thereof.”

Plaintiff insists that the acts which the modification in the injunction permits exceed the privilege conferred by the clause in the lease, and contends that the premises need no repairs or alterations for the benefit of the plaintiff or his business; and his contention in that respect seems to be borne out, to some extent, by the cases of Dutton v. Holden, 4 Wend. 643, and White v. Mealio, 63 N. Y. 609. On the contrary, the defendant contends that the words of the lease permitting alterations in the premises, such as the landlord may “ consider important for the preservation or improvement thereof,” authorizes the additions a*nd improvements contemplated by the defendant, and mentioned in the qualified language of the order from which the appeal is taken, and that the defendant, by virtue of the language,, is authorized to make such alterations “for the preservation and improvement thereof,” to wit, the premises, “ as he may consider important.” To support the contention of either party, numerous affidavits were produced at the special term by the respective parties, and an examination of the affidavits reveals a stubborn conflict in respect to the evidence either side has deemed essential to aid in the construction of the language used in the lease. It is not improbable that the special term was in doubt as to what facts were established which legitimately bore upon the proper construction to be given to the language of the lease. The same difficulty confronts us when we attempt to resort to the facts and circumstances preceding and attending the execution of the lease and the subsequent acts of the parties thereunder. It is believed a more satisfactory determination of the proper construction to be given to the language used by the parties can be reached after the testimony shall be given upon the trial of the action. We may therefore forbear to pronounce absolute construction of the instrument upon this appeal.

In Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 121 N. Y. 405; 31 St. Rep. 524, the court, after alluding to the conflict in the affidavits therein under consideration relating to an injunction, observed that upon the trial the facts will be judicially ascertained, and, in case an appeal shall be taken upon the final judgment rendered to'this court, we shall then be better able than now to determine the ultimate rights of the parties. Following the views thus expressed, the court allowed the action of the special term to remain undisturbed, as in that case a condition had been annexed to the order.

In City of Gloversville v. Johnstown, G. & K. H. R. Co., 21 N. Y. Supp. 146, it was held: “The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reviewed unless there has been an abuse of that discretion.”

In Benedict v. Seventh Ward Railway Co., 6 St. Rep. 548, this court held, viz.: “ When a plaintiff is not entitled to an injunction on the pleadings, as a matter of law, and all the allegations in the complaint are positively denied in the answer, the general rule is that an injunction pending the litigation will not be granted, or, if granted, will not be continued.”

Section 629 of the Code of Civil Procedure provides for an application being heard to vacate or modify an injunction order, and contains the following language : “ Upon such hearing, the court or judge may, where the alleged wrong or injury is not irreparable, and is capable of being adequately compensated for in money, vacate the injunction order upon the defendant’s executing an undertaking in such form and amount and with such sureties as the court -or judge shall direct, conditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order.” .

In Chamberlain v. Railroad Co., 31 Hun, 339, it was said that: “ Where there is no attempt to meet the plaintiff’s case upon its merits, and the defendant seeks to remove the injunction by giving an undertaking, as now.provided by the statute, the plaintiff has a right to exact an undertaking from the defendant in full and strict compliance with the statute.”

In the case before us no complaint is made by the appellant of the form or adequacy of the undertaking provided for in the order appealed from. As we recall the great conflict in the affidavits used at the special term and the language found in the written instrument executed by the parties in respect to the premises in question, we are not inclined to say that the action of the special term was “an improper exercise of the discretion of the judge,” or that the court “ so far exceeded the just exercise of its discretion as to justify this court, on appeal, in reversing the order and vacating the injunction.” City of Gloversville v. Johnstown, G. & K. H. R. Co., supra.

The foregoing views lead to an affirmance of the action of the special term. Order affirmed, with $10 costs and disbursements.

All concur.


author: Smith, J.

text:
    The People ex rel. Merritt Breed, Pl’ff, v. Irving S. Wells et al., as Assessors, etc., Def’ts.

      (Supreme Court, Chenango Special Term,

      Filed November, 1894.)

    1. Taxes—Exemption—Bounty.
    Bounty and pension moneys, paid by a town to its soldiers, is within thq provisions of § 1393 of the Code.
    2. Same.
    A farm, purchased partly with such bounty and pension money and partly with other money, is exempt from taxation to the extent of such bounty and pension used in its purchase.
    Certiorari to review the tax assessment,

      George W Marvin, for relator; John W. Church, for def’ts.
   Smith, J.

The relator asks to strike from the assessment roll the assessment of his farm, on the ground that the same was purchased with bounty moneys and pension moneys received by him by reason of his services in the war of the rebellion. The Revised Statutes provide that property exempt from execution should be held exempt from taxation. Section 1393 of the Code of Civil Procedure provides that the pay and bounty of an officer or, private in the military service of the United States, and a pension granted by the United States, or by a state, for military services, are exempt from levy and sale by execution, and from seizure for nonpayment of taxes. In the case at bar it seems that the farm in question, which is claimed to be exempt, represents a cost of about $3,500; $1,500 of this represents bounty and pension moneys, while $2,000 is represented by improvements put upon the land with moneys otherwise received. I think the bounty from the town of Pharsalia, being from a division of the state, is fairly covered by the provisions of the Code, and should be held exempt. These bounties and pension moneys are clearly traced into the purchase of this property. Notwithstanding, therefore, $2,000 paid upon the land additional, there should not be held to be such a commingling of the property as to deprive the relator of the benefit of his exemption. There is no reason, however, why he should be exempted from paying taxes upon such proportion of the moneys as went into that land from other sources. Such portion of the assessed value therefore, as represents the ratio of $1,500 to the cost, to wit, $3,500, should be deducted from such assessed value. In that case he would have the benefit which the statute was intended to confer, and he would be paying his taxes upon such of his property as should, in conscience, be held liable therefor.

Ordered accordingly.


author: Merwin, J.

text:
    Julia R. Duane, Resp’t, v. Clinton F. Paige et al., Resp’ts. Martha J. Clark et al., App’lts.

      {.Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Witness—§ 829.
    A co-defendant, though called by the plaintiff, is not competent to testify to a personal transaction with a deceased person against such person’s representatives in interest, where he is personally interested in the case, and his testimony will necessarily operate to his own benefit.
    2. Evidence—Declarations. - •
    The declarations of a mortgagor, after the execution of the mortgage, are not admi.sible as against the mortgagee.
    3. Release—Impeachment.
    In the absence of fraud or mutual mistake, heirs, who hav.e released the executor from all • liability, cannot afterwards claim that he held certain land for the benefit of the estate.

      4. Parties—Executors.
    The executor must be made a party, in seeking to reach the assets of his testator, which must be administered.
    Appeal from an interlocutory judgment, directing the sale of certain premises, and, after first paying certain costs, the distribution of the proceeds.

      Edward K. Clark, for app’lts; Millard & Stewart, for resp’ts.
   Merwin, J.

On the 3d day of July, 1863, Hazard Lewis, a resident of Binghamton, N. Y., died, leaving a will which was duly proved in Broome county, on the 15th July, 1863, and letters testamentary issued to Frederick Lewis, Clinton F. Paige, and Horace S. Griswold, the executors therein named. The decedent left, him. surviving, his. widow, Maria Lewis, and three children, Frederick Lewis, Jane E. Drake, wife of Patrick H. Dráke, and Caroline L. Paige, wife of Clinton F. Paige. By the will, after certain general bequests and devises- were made,- all the-residue, after the payment of debts and expenses, was devised and bequeathed to the wife and the three children equally, one-fourth part thereof to each. The testator, at the time of his death, owned a bond and mortgage given by Freeman Randall to secure the payment of $8,500, and the principal and some interest thereon was then unpaid. The mortgage covered about 201 acres of land in the town of Fenton. The bond and mortgage passed into the-hands of the executors, and were included in the inventory made and filed by them. On the 17th July, 1867, there then being due-on .the bond and -mortgage about the sum of $4,194, an action was-commenced in the supreme court, in the names of the executors-as such, as plaintiffs, for the foreclosure of the mortgage, and such proceedings were had that on the 10th August, 1867, a judgment of foreclosure and sale in the usual form was entered. In pursuance of the judgment the premises were sold by the sheriff on, the 26th November, 1867, and were bid in by Frederick Lewis „ for the sum of $2,400; and at same date the sheriff executed and delivered to him a deed, it being recited therein that the bid had been paid by the party of the second part, and the receipt thereof was acknowledged. The deed did not run to Lewis as executor. It is alleged in the complaint that Lewis paid no part of the consideration or bid, but in taking the deed to himself made himself the trustee of the owners of the residuary estate. Mr. Griswold, one of the executors, was the plaintiff’s attorney on the foreclosure, and he drew the deed to Lewis, and it was duly recorded on .November 27, 1867. On the 6th January, 1868, the three executors, as such, united in a deed to one Wilcox of sixty-four acres, part of the 201 acres conveyed to Lewis by the sheriff. The consideration of this deed, as stated therein, is $1,700, and it was recorded January 6, 1868. On the 31st June, 1873, Frederick Lewis and Maria A., his wife, executed to Patrick II. Drake a. mortgage upon an undivided one-fourth of the balance of said premises, being about 137 acres. This mortgage covered a large amount of other real estate, and was given to secure the payment, of $60,000. It was afterwards foreclosed by Drake, and the-premises bid in by him, the affidavits of sale being recorded February 11, 1876. The plaintiff, as the representative of Drake, who died in 1882, claims, by virtue of this foreclosure, to be the owner.of an Undivided fourth in the said premises. In August, 1870, Griswold, one of the executors, died. On the 25th-August, 1873, Frederick Lewis resigned as executor, under what authority does not appear. He died on 4th March, 1890, after the commencement of this suit. After the resignation of Frederick, Patrick H. Drake seems to have acted as executor under- ' an order of the supreme court. He died in November, 1882. On the 28th May, 1885, Frederick Lewis and Maria A., his wife, duly executed and delivered to Charles Sevmour a mortgage on the premises in question for the sum of $600, being money loaned by Seymour to the mortgagors at the time of the execution of the same. This mortgage was recorded. The papers do not disclose the date of the record, though it may perhaps be inferred that it was recorded at or about the time of its execution. Previous to this and on the 3d June, 1884, Frederick Lewis conveyed the premises to one Van Píame, and he, on June 6, 1884, conveyed the same to Maria A. Lewis, the wife of Frederick. The purpose of these deeds was to pass the title to the premises, or whatever interest Frederick might have therein, to his wife, and the consideration was a precedent debt. The deed to Van ¡Name was-■recorded "November 22, 1887, and the deed to Mrs. Lewis on December 18, 1888. Jane E. Drake, one of the residuary legatees, died in May, 1883, leaving a will by which all of her property was given to her two children, the plaintiff and Virginia M. Drake. The latter died in 1884, leaving a will giving her property to her sister, the plaintiff. The plaintiff, as the owner of the residuary interest of Jane E. Drake, claims an undivided fourth interest in the premises in question or their proceeds. Maria Lewis, the widow of Hazard Lewis, was adjudicated a bankrupt on October 31, 1873, and on May 24, 1877, her assignee in bankruptcy executed and delivered to Jane E. Drake a deed purporting to convey,, among other pieces of property, an undivided one-quarter of the premises in question. Under this the plaintiff, as the successor in interest of her mother and sister, claims an undivided one-fourth interest in the premises or their proceeds. Caroline L. Paige, the other of the residuary legatees, died in June, 1878, intestate, leaving, her. surviving, her husband, Clinton F. Paige, and three children. Clinton F. Paige and Jane L. Paige (now Eoss) were after-wards duly appointed administrators. Prior to the commencement of this action, all the debts of Hazard Lewis and funeral and testamentary expenses were paid. This action was commenced March 25, 1889, for the purpose of having determined the rights of the respective parties in the premises, the plaintiff claiming to-be owner of a three-fourths interest therein. The plaintiff as administrator of Patrick H. Drake, deceased, is not a party, nor is-Clinton F.- Paige as surviving executor of Hazard Lewis, deceased, a party, nor are Clinton F. Paige and Jane L. Eoss as administrators of Caroline L. Paige, deceased, parties. ¡No objection is raised by the answers of defendants, that there is any defect of parties.

It is found by the referee that Frederick Lewis, in the foreclosure sale, purchased the premises for the benefit of the estate, and paid no part of the purchase price; that after he ceased to be executor, in 1873, he could not convey the premises, or any interest-therein, and that the deed to Maria A. Lewis through Van ¡Name, as well as the mortgage to Seymour, was inoperative; that plaintiff, individually and as administratrix of Patrick H. Drake, was the owner of a three-fourths interest in the property, and that the-administrators of Caroline F. Paige owned the other one-fourth. The referee also found, at the request of the appellants, that the-premises in question have not been in the actual possession of any person within the past twenty years; that no action appears to-have been taken by any person interested in the estate of Hazard Lewis to set aside the deed from the sheriff to Frederick Lewis until the beginning of the present action, in March, 1889; that the premises in question were to be treated as personal assets in the hands of Frederick Lewis, so far as the heirs and legatees of Hazard Lewis are concerned. It also appears that prior to May, 1887, there was a proceeding in the surrogate’s court of Broome county entitled “In the Matter of the Intermediate Accounting and Judicial Settlement of the Accounts of Frederick Lewis, Clinton F. Paige, and Patrick H. Drake, as Executors of the Will of Hazard Lewis, Deceased; ” and on the 16th May a decree was made, whereby it was adjudged, among other things, that Clinton F. Paige pay Maria Lewis the sum of $1,691.03; that Clinton F. Paige and Frederick Lewis jointly, as such executors, pay to Maria Lewis the sum of $11,128.39; and' that the executor Frederick Lewis pay to her the sum of $1,288 29,—amounting, in the aggregate, to the sum of $14,107.71. By the same decree it was adjudged that Clinton F. Paige, either alone or jointly with Frederick Lewis, pay to Julia R. Duane, the plaintiff herein, either as administratrix of Jane E. Drake or of Patrick H. Drake, sums in the aggregate amounting to $9,688.69. On the 7th September, 1887, after divers negotiations, the parties interested in the estate executed and delivered an instrument of which the following is a copy:

“State of New York, Surrogate’s Court, Broome County.
■“In the Matter of the Accounting and Judicial Settlement of the Accounts of Frederick Lewis, Clinton F. Paige, and Patrick H. Drake, as Executors of the Will of Hazard Lewis, Deceased.
“ Stipulated, that Frederick Lewis be, and hereby is, fully discharged from all liability for all money, property, and dioses in action and property rights which came to his hands as the property of the estate of Hazard Lewis, and a decree of surrogate’s court of Broome county fully discharging him may be entered at any time without further notice; and his acts as executor of the will of Hazard Lewis, deceased, are closed and settled and he is fully discharged as such executor from all further liability; and a decree to this effect, making it a final decree so far as the liability of said Frederick Lewis is concerned, may be entered at any time. Sept. 7th, 1887.”

This was signed by the attorneys for Clinton F. Paige, by Clinton F. Paige and Jane L. Paige as administrators of Caroline L. Paige, by the plaintiff herein, Julia R. Duane, and her attorney, and by Maria Lewis. At the same date, and as a part of the same transaction, Maria Lewis, and Maria A. Lewis, who claimed, as assignee of Maria Lewis, to own the interest of Maria Lewis, ip the^ estate and in the amounts awarded to her in the decree, exe•outed and delivered a satisfaction of the decree. No money was paid them except the sum of $1,950 furnished by Frederick Lewis by means of an insurance policy. The delivery of this satisfaction "was the consideration of the release. It is found by the referee that the parties executing .the release did not intend to include therein the premises in question, or the avails .thereof, and that there was no agreement or understanding that the title of Frederick Lewis and Maria A. Lewis to the premises in question should not be questioned; and he held that neither Maria A. Lewis nor the holder of the Seymour mortgage could derive any benefit in this action from the release.

1. Upon the trial the plaintiff called as a witness the defendant Clinton F. Paige. Among other things, he testified that he was present at the foreclosure sale in 1867, that the other executors, Griswold and Lewis were there, and that Lewis bid off the property, and that Griswold was the attorney who brought the suit. The question was then asked him: “ Did Mr. Lewis pay the $2,400 to the plaintiff’s attorney in the action?” This had reference to the bid for the 201 acres. The objection was made by the appellants that under section 829 of the Code the witness was not competent to testify as to the transaction, in that he was personally interested in the case, and was testifying in his own interest to a personal transaction with a deceased person, against that person’s representatives in interest. The objection was overruled, and exception taken, and the witness answered, “He did not.” Mr. Paige was a party, and interested in the event of the action. If the subject of the action was to be deemed real estate, he was tenant by the curtesy of the share of his deceased wife, and, if personal property, then he was interested, as his wife died intestate, and he would be entitled to a distributive'share of her personal estate. Although called by the plaintiff, he was in effect examined as a witness in his own behalf or interest, as the position of the plaintiff and of the witness as to the character or effect of the foreclosure was the same, and his- evidence would necessarily operate to his own benefit. Mr. Lewis was then dead. But it is suggested that the question did not call for a communication or transaction between witness and the deceased, and that to be objectionable it must appear that the witness participated in the conversation or transaction. The witness was at the foreclosure sale as one of the parties to the action, and, if the money was paid in his presence, he was in reality a party to the transaction. The fact that the answer was negative does not affect the point. The latest expression of the court of appeals, that we have noticed, upon the subject of the participation of the witness in the conversation or transaction, is found in Re Bernsee's Will, 141 N. Y. 392; 57 St. Rep. 601, where it is said: “ If active participation in the conversation was necessary to exclude an interested witness, and he should, as an observer, be permitted to .testify to transactions in form between the deceased and third persons, although such transactions were in his interest, it would furnish an easy and convenient method, in every case, of evading the statute. The decisions have enforced the spirit of the statute by excluding such evidence, and have treated transactions between the deceased and third persons in the presence of interested parties as if the witness actually participated therein.”

The exception was, we think, well taken. The referee also reeeived in evidence, over the objection and exception of the' appellants, statements made by Frederick Lewis in January, 1888-This'was after the rights of Maria A. Lewis and of Mr. Seymour-had accrued, and his declarations as against them were not competent. They related to what occurred at the foreclosure sale and: the conduct of Lewis afterwards, and tended to support -the plaintiff’s theory on the subject. Statements of Lewis made after this-suit was commenced, and shortly before his death, were also received in evidence over proper objection and exception. They related to the extent of the interest he or those claiming from him had in the prqperty. We do not -see how these rulings can be sustained. It is, however, claimed that the rulings referred to, if erroneous, were harmless, and did not affect the result. That is not entirely clear.

2. A more important question arises as to the effect to be given to the stipulation or release of September 7, 1887; and in considering this question we may assume that Frederick Lewis did not, by the transaction upon the foreclosure, become individually the owner of the property, but that he held the title for the benefit of the estate. In such a case, as said in Lockman v. Reilly, 95 N. Y. 64, 70, “the legal title to the land is in the executor or administrator ; but as between him and the legatees, next of kin, and creditors of the deceased party, it is personal estate, and he holds it as the legal representative of the deceased.” On page 71 of the Lockman Case it is said: “ That land bought in by executors on a foreclosure of a mortgage belonging to the estate is to-be treated as personal property, which the executors may sell, and for which they are accountable as such, has been frequently decided, and it -is immaterial whether the deed is taken in the names of the executors as such, or in their individual -names. Clark v. Clark, 8 Paige, 152; Schoonmaker v. Van Wyck, 31 Barb. 457; Valentine v. Belden, 20 Hun, 537; Cook v. Ryan, 29 Hun, 249. oln all these cases, land thus .purchased by an executor or administrator is re- ‘ garded as a substitute for the mortgage foreclosed, and takes its place for all purposes, as between the executor or administrator and the parties interested in the estate. It is not treated as land belonging to the testator. His heirs or devisees take no direct interest in it, and cannot dispute the title of a purchaser from the executor, though no power of sale be contained in the will. The heirs of an intestate cannot question the title of a purchaser from his administrator, who has purchased land under such circumstances. Long v. O'Fallon, 19 How. 116; Williams, Ex’rs, p. 650, note d.’’

In Clark v. Clark, supra, it is said that if, upon an accounting, the land só bid in remains unsold, the surrogate may direct a sale thereof, and a distribution of the proceeds as a part of the estate. The expression in the release, “ all money, property, and choses in action and property rights which came to his hands as the property of the estate of Hazard Lewis,” is brought enough to include the property in question. It came to his hands, for he took 'the title to himself individually, and he did not, when he resigned, transfer it to his ooexecutor. It remained still in his hands, to be accounted for as personal assets. That being so, the release applies, unless for some good reason this property is to be excepted from its operation. In this line it is found that it was not the intention of the parties to include this in the release. If by this it is meant to be found that there was a mutual mistake in making the language so broad, then the evidence does not, I think, warrant that conclusion. The evidence does not show that Maria A. Lewis or her assignor, Maria Lewis, who together furnished practically the consideration of the release, did not intend that the release should include the property in question. On the contrary, there is evidence that Maria A. Lewis relied on the fact that this property would be released. ¡Neither they nor Frederick Lewis agreed that it should not be. The attorneys for the plaintiff and for Mr. Paige testified that nothing was said in the negotiations about this property, and that they did not know that Frederick Lewis had the title in his own name. It, however, appears that Mr. Paige had known of it for several years, and the plaintiff had brought a suit for partition, including this property as a part of the real estate owned in common, so that she or her attorney must have known that the mortgage had been foreclosed, and the title bid in by some one; and the record showed who took the title, and that a mortgage had been afterwards given thereon, It is not •claimed that any of the parties, when they signed the release, did not fully know its contents. It is said on the part of the plaintiff that all that Frederick Lewis wanted was a discharge of the decree. Still, plainly, the release is more than that, and it is presumed that all parties knew it when they signed it. ¡Nor does the evidence show that as between Maria Lewis, Maria A Lewi's, and Frederick Lewis of the one side, and the other parties who signed the release upon the other side, there was any agreement except such as is indicated by the papers themselves. There was, therefore, no mutual mistake, and it is not claimed there was any fraud. “ Where a release is general in its terms, and there is no limitation by way of recital or otherwise, the releasor may not prove an exception by paroi. The instrument itself is the only competent evidence of tie agreement of the parties, unless avoided for fraud, mistake, duress or some like cause. So, also, if the words of a release fairly import a general discharge, their effect may not be limited so as to exclude a demand simply upon proof that at the time of its execution the releasor had no knowledge of the existence of the demand.” Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182; 48 St. Rep. 242. The rule that, when the writing does not contain the whole agreement, the balance may be shown by paroi, does not help the plaintiff, for the paroi agreement must not be inconsistent with or vary the terms of the written part. Chapin v. Dobson, 78 N. Y. 80. There is no question about the consideration. Bank v. Blair, 44 Barb. 641; Morehouse v. Second Nat. Bank, 98 N. Y. 510. It was a stipulation in the surrogate’s court which was intended to furnish a basis for a final settlement and discharge of the executor Frederick Lewis. We are of the opinion that the release, upon its face, covered the claim in question, and that no sufficient ground or reason appears in the case to restrict its operation, and that, therefore, the referee erred in not giving it effect.

3. Clinton F. Paige is the surviving executor of the estate of Hazard Lewis. He is not a party to the action in his representative capacity, and is not, as such, bound by the result. Rathbone v. Hooney, 58 N. Y. 467; Landon v. Townshend, 112 N. Y. 93; 20 St. Rep. 223; Hall v. Richardson, 22 Hun, 444. The plaintiff in this case seeks to reach assets which, if they exist at all, primarily belong to the personal representative, and are to be by him administered upon. It would seem that the executor, as such, was a necessary party to a complete determination of the controversy, and that under § 452 of the Code he should be brought in, although the objection of want of proper parties is not taken. Osterhoudt v. Board of Suprs., 98 N. Y. 239; Peyser v. Wendt, 87 id. 322; Bear v. Am. Rapid Telegraph Co., 36 Hun, 403. There has been no final settlement of the estate.

Judgment reversed, and new trial ordered, costs to abide the event.


text:
    John Miller, as Administrator, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      ('Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Negligence—Contributory.
    Tlie negligence of a railroad company does not excuse a traveler on the highway from exercising care on his part, in looking and listening before crossing the tracks, in order to escape the danger of moving trains.
    2. Same—Question op pact.
    The questions of negligence and contributory negligence were held, under the evidence in this case, to have been properly submitted to the jury.
    Appeal from a judgment entered on' a verdict in favor of ' plaintiff, and from an order denying a motion for a new trial on the minutes.

      C. D. Prescott, for app’lt; Myron C. Bronner, for resp’t.
   Hardin, P. J.

Plaintiff’s, intestate was a young man about eighteen years of age. In the early part of the day of February 1, 1892, he left his home in Jacksonburg, a hamlet three miles west of Little Falls, on the south side of the river, and, upon reaching Little Falls, mingled with the crowd watching the ruins of a large fire that occurred on the morning of that day in Main street, and during the day was accompanied with a brother-in-law,' House, visiting various parts of the village until about half-past seven, when together they took a horse and cutter from the Girvan House barns, and drove to the corner of Main and Second streets to obtain some confectionery, and from there they passed westerly along Main street until they reached Lock street, which is the most westerly street in the village of Little Falls leading to-bridges across the Mohawk river. They turned to the left from Main street into Lock street, which passes nearly north and south, and crosses the tracks of the defendant at right angles. Lock street is about ninety feet in length from the southerly side of Main street to the north side of the tracks of the defendant On the westerly side of Lock street are several buildings,^one, a barn fronting on Lock street, the main portion of which is thirty-six feet, and there is an addition to that barn that is about twelve feet in width on Lock street, and a distance of some eleven feet south of the addition to the barn is a building known as the Cold-Storage Building,” or “Armour Building,” and south of that is a platform connected by a spur or stub connecting with the main tracks of the defendant, used for the purpose of moving freight cars in front of the storage building. In front of the storage building, facing the defendant’s tracks, is a platform of about three feet in width, which is about three feet high above the level of the street. The length of the cold-storage building is about sixty feet along the railroad. West of the cold-storage are some other buildings. On the opposite, or easterly, side of Lock street, are several buildings, and after passing over defendant’s tracks along Lock street there is a dyke and buildings to the east of the street, and still further south is the first span of the bridge across to the Hansen Island, and from that island to the southerly shore of the river another bridge. These bridges were built and put in use about the year 1892, and during the year when the bridge at the foot of Ann street, or including a portion of Bridge street, was destroyed. The people residing south of the river, and in the westerly portion of the village, were accustomed to use the Hansen bridges and Lock street as means of ingress to and egress from the village. The decedent had frequently passed over the Hansen bridges and along Lock street in visiting and returning from the village. The deceased was driving the horse, and seated on the right-hand side of the cutter, and his companion, House, on the left-hand side of the seat; and as they neared the tracks of the defendant a freight train on track No. 4 (which is the northerly track) was passing eastwardly, and by reason of that, when they were a few feet from the spur, they halted the horse, and waited till the passage of the train east, and, when the rear car thereof had passed some 300 feet eastwardly, the horse was started up, according to one of the witnesses, on a shack, and, according to another of the witnesses, on a walk. A train known as “No. 42,” or “Syracuse and Albany Accommodation,” was passing eastwardly on track No. 1 at a rate of 20 or 25 miles an hour, and came in collision with the horse and cutter, causing the death of the plaintiff’s intestate. House was found some 20 or 25 feet east of the crossing, between tracks 1 and 2, the body of the horse was 15 or 20 feet further east, between the same tracks, and the deceased was 20 feet still further east, between tracks 1 and 2. The witnesses say: “It was a snowy night, not very dark nor very light.” The train was due at Little Falls at 7:53, and, being a few minutes behind time, reached there at 7:55. The witness House testified that when opposite the northeast corner of the storage building in the traveled part of the street, in the middle of the street, they stopped, having driven up to the crossing. The freight train was going east, and the deceased waited until the train had got by, and looked that way,—that is, east. And the' witness adds : “I looked east,—turned and looked east,—and the train had got down by so that they were about in a line with the dyke works. I turned around like that [indicating], and Miller set in the cutter, and when I looked around like that [indicating] he spoke to the horse, and she started on a shack. I kind o£ turned my head east, and he drove on the track, and when I turned around to look west the cars were right on us. When I turned around and looked west, he was in the act of, like this [indicating] ; that is all I remember,—pulling back on the reins. While we were waiting, at least, I listened. When the horse was standing there, as the train was going east, he set with his lines in both hands, and when the train had got down, and I looked east and turned around, he set like that, leaning forward [illustrating], something similar to that; that is, he set with a rein in each hand, leaning kind of forward, as I looked around like that [illustrating], and Miller spoke to the horse to go on."

The witness adds that the deceased was reining in the horse at the time the train struck them, and that at the time he saw Miller pulling back, he saw the train on No. 1 track. “It seemed, when I looked around, that it was coming right onto me. Perhaps a second’s, or something like that, warning. Just as I looked around, I saw it coming. It was snowing a little; a very dull, heavy night; cloudy, somewhat.’’ There is considerable conflicting evidence as to some of the essential facts and circumstances, relating to the question of the defendant’s negligence and the question of the freedom of the plaintiff’s intestate from negligence on the occasion of the accident.

1. Several witnesses say that prior to the collision they observed the train approaching from the west which caused the injuries, and that the whistle was not blown nor the bell rung. One witness who observed the train when it was within 500 feet of the crossing testified positively that no whistle was sounded or bell rung. The witness House says he did not hear any bell; that he was listening, and that “the whistle did not blow.” The witness Eysaman testified that he resided some four or five hundred feet west of the Lock street crossing, and that, when the Little Falls accommodation was passing that night, “I [he] stood out doors on the west sidé of my yard. I noticed that train pass by my place. The bell was not ringing ; the whistle was not blowing.” And in the course of his cross-examination he said: “The location where I claim to have noticed in z’egard to the bell or whistle was between four or five hundred feet west of the Lock street crossing. I noticed the train, and I am confident that it was not ringing." The witness Prall testified that he lived in the first house west of the Lock street crossing, and that he noticed the train coming in that'evening ; that his windows were open south towards the railroad, and that he was about to shut his blinds when the trail! went by ; and he adds: “The whistle of the train was not blowing; the bell was not ringing.” On the other hand, the defendant called several witnesses who testified that the station signal was given; that the whistle was blown, and that the bell was rung, before reaching, and at the time of reaching, the crossing. In the course of the charge delivered by the learned trial judge he called attention to the conflict in the evidence in respect to the management of the train, and to the different statements made by the witnesses as to whether the bell was rung or whistle sounded, and fairly and squarely submitted to the jury the question in respect to whether the defendant, under the circumstances disclosed by the evidence, was guilty of negligence which produced the collision. We think the evidence required the judge to submit the question as to the defendant’s. negligence to the jury, and that their verdict in that regard is controlling here. ' Massoth v. D. & H. Canal Co., 64 N. Y. 534; Beckwith v. N. Y. C. & H. R. Railroad Co., 54 Hun, 446; 28 St. Rep. 130, 292; affirmed, 125 N. Y. 759.

2. The learned counsel for the appellant raises a close and critical question as to whether, under the evidence given, the plaintiff’s intestate was shown to be free of contributory negligence, and whether the facts and circumstances were such as to warrant the inference on the part of the jury that he had exercised that care and caution which the law exacts from a^ party who is about to pass the tracks of the defendant. Undoubtedly,. the negligence of the defendent “does not excuse a traveler on the highway from exercising care on his part in looking and listening before crossing the railroad tracks, in order to escape the danger of moving trains.” Cullen v. D. & H. Canal Co., 113 N. Y. 667; 23 St. Rep. 719. In that case the evidence warranted a strong inference that the party neither looked nor listened, and there was no reasonable ground for the supposition that he was in a position where he had to choose between two imminent perils, and that he could not have escaped one without encountering the other. Here there-is a. conflict as. to some of the material facts relating to the question of the deceased’s freedom from negligence. It' is insisted (and proof is given tending to support the contention) that no car stood on the spur in front of the refrigerator on the occasion of the accident. Considerable evidence is given by the defendant to support that contention. On the other hand, there is evidence to the effect that there was a car standing on tbe spur in front of the cold-storage refrigerator, and that it projected beyond the east end of the building. House testifies.: .“It stood out in Lock street considerable. It projected béyónd the east end of the cold-Storage building. It was a box car.” And the same witness, in the course of his cross-examination, says: “I am quite certain there was a refrigerator car on that spur, I saw it myself.” The witness Anderson, who assisted in carrying thé body of Miller into a house, says: “Eight after we carried in Miller and House, I came back here, and noticed whether there was a car standing upon that spur. I saw a car standing upon this spur or branch. That car stood with the eastern end of it about even off with the platform of the refrigerator building. The end of the car which was next to the street was even with the platform of the house. I claim to have seen this car about fifteen minutes after the accident.” And when he was pressed upon the subject of what called his attention to-the car he said: “It obstructed the view of the railroad off to the west,” and that he was looking to see; and he adds: “ I am willing to swear positively that there was a car that night at that time.” Upon this conflict it was for the jury to determine whether the car stood in front of the refrigerator building and furnished an obstruction to the observations of a train approaching from the west; and upon the question we are now considering it must be assumed that the jury found, upon the conflict, favorably to the plaintiff. Green, a surveyor, was called, who had made measurements in Lock street as to how far one could see west on track No. 1, standing on Lock street, and he says, viz.: “ Standing at a point 12 feet north from the north rail of track No. 4, in the center of Lock street, I could see an object in the center be tween the rails on track No. 1, at a point 30 feet westerly of the center of Lock street, measured between the rails of track No. 1. I could not see further by reason of a car on the branch, which stood out, I should think, between 2 and 3 feet east of the line of the cold-storage building. I did not make any measurements of it Changing my position to a point 10 feet north of the railroad track No. 4, going 2 feet nearer to No. 4, I could see an object 108 feet between the rails of track No. 1 from the center of Lock street. The point of 10 feet came just inside of that stub. Ten feet from the north rail of track No. 4 brought me just south of the north rail of the stub; and the point of 12 feet brought me just north of the north rail of the stub.” And in the course of his cross-examination he says that he passed down onto the stub track 2 feet, which just stepped him over the north rail, and that he then took another observation by the corner of that car, and then he could see 108 feet from the center of Lock street on track No. 1. “If I had stepped one foot further south of Lock street I could have seen, I think, 250 feet, perhaps more; *■ * * and if I had stepped one foot further than that,—that is, two feet,— then I could see 1,000 feet up on track No. 1, or more,” and then “ that would have brought me about on the south rail of the stub track, very nearly. From the south rail of the stub track it is possible that I could see 1,000 feet or more to the -west.- I can’t say for certain.” This witness also testified that “ assuming that this car had stood so that its east end was on the line of Lock street, I would have seen a great deal further west than I did with it standing where it did, over on the street.” This same witness testified as to the length of a horse and cutter, measured from the nose of the horse to the rear of the cutter, and he stated it to be 13 feet and eight inches, and that if a person sat in the cutter his eyes would be 6 or 8 inches nearer the horse than the back end of the cutter, and that would vary somewhat, depending upon whether the person held his head forward or back; that variation might make it a foot. Inasmuch as there was a conflict in the evidence in respect to some of the important circumstances relating to the conduct of the deceased on the occasion of .the injury, and inasmuch as a solution of that conflict was within the province of the jury, so, too, we think, it was for the jury to determine what inference should be drawn from the facts which they found established under the circumstances disclosed by the evidence relating to the question of the testator’s freedom from contributory negligence. Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811; Gilbert v. L. I. Railroad Co., 80 Hun, 366; 62 St. Rep. 408. House-in detailing the circumstances, states that they stopped and waited until the freight train had gone by, and that they were then near the north freight track, and about éven with the cold storage. He adds: “We were opposite the northeast corner in traveled part of the street,-—in the middle of the street. As I say, we stopped. Millerwas still driving. We drove up to the crossing. The train was going east. He waited until the train had got by,and looked that way (indicating). Looked that way,—east. I looked east,—turned and looked east, —and the train had got down by so that they were about in a line with the dyke works. I turned around like that (indicating), and Miller sat in the cutter, and when I looked around like that (indicating) he spoke to the horse, and she started on a shack. I kind of turned my head east, and he drove down on the track, and, when I turned around to” look west, the cars were right on us. When I turned around and looked west, he was in the act of, like this (indicating); that is, pulling back on the reins. * * * I looked east when we got out on the track, and I turned around to look west, and he was like that (illustrating), reining in the horse.” The witness continues that Miller was sitting back, drawing in the reins, as the train approached. The learned judge called the jury’s attention to the rule in respect to the conduct of a party when an emergency is suddenly upon him, and in connection with^that rule submitted the whole question of fact as to whether the deceased was free from contributory negligence to the jury, in cautious language, leaving the jury to deal with the facts and circumstances and inferences to be deduced from the whole body of the evidence. Under the rules that have been laid down in numerous cases, we. are of the opinion that no error was committed in that regard. Beckwith v. N. Y. C. & H. R. Railroad Co., supra; Towns v. R., W. & O. Railroad Co., 28 St. Rep. 124; 8 N. Y. Supp. 137, and cases cited in the opinion; Pitts v. N. Y., L. E. & Western Railroad Co., 61 St. Rep. 559; 29 N. Y. Supp. 871.

This case differs from Stopp v. Fitchburg Railroad Co., 61 St. Rep. 629; 29 N. Y. Supp. 1008, as in that case it appeared that a party approaching the crossing 50 feet from the track could have seen a locomotive 1,000 feet if she had looked; and, upon all the facts and circumstances disclosed in that case, the judge who delivered the opinion was constrained to say “ that she did not look, excepting straight in front of her, but went heedlessly on. If she had looked, she would have seen the locomotive, and have had ample time to stop and be safe. If she did not do so, it was negligence; if she did not look it was negligence.” In the case in hand there is no absolutely definite evidence as to the speed of the train, nor is there absolutely definite evidence as to the rate or speed of the deceased’s horse when it was started up after having waited for the passing of the freight train; and, considering the other uncertain events and circumstances surrounding the deceased on the occasion of the injury, we are of the opinion that the rule laid down and stated in Pitts v. Railroad Co., supra, and the authorities there referred to, warranted the trial judge in refusing to grant a nonsuit on either of the grounds mentioned by the learned counsel for the appellant, and in submitting the questions of fact involved in the case to the jury.

3. Upon a careful review of the evidence brought to the attention of the court by the motion for a new trial on the minutes, on the alleged ground that the verdict is against the weight of evidence, and applying the rule laid down in Kaare v. Troy S. & Iron Co., 139 N. Y. 369; 54 St. Rep. 653, we think a new trial should not be granted on the ground that the verdict is against the weight of evidence. See Beckwith v. N. Y. C. & H. R. R. Co., supra; Pitts v. N. Y., L. E. & W. R. R. Co., supra.

4. When the trial judge was asked to instruct the jury “that the fact that the deceased passed upon a shack or trot upon the tracks is some evidence of want of care and prudence,” the court responded thereto, viz. : “ I leave that for the jury. I don’t think that is for the court.” As already indicated, there was some evidence relating to the movements of the horse besides that given by the witness House, and it was for the jury to determine what was the essential fact—-at what particular speed the horse was moving, and at what particular points the witnesses referred to; and we think it was not error in the court to submit the whole question of “ care and prudence,” under the circumstances disclosed, to the jury, and that the exception taken to that request is unavailing.

The verdict rendered by the jury was for $1,375. Ho criticism is made by the defendant as to the amount thereof.

Judgment and order affirmed, with costs.

All concur.


author: 'Per Curiam.

text:
    Henry A. Buck et al., as Administrators, etc., Resp’ts, v. Ferdinand T. Hopkins et al., App’lts.

      ('Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Partnership—Limited.
    The words “& Co.” .cannot he used in the name of a limited partnership, where there is only one general partner.
    Appeal from a judgment in favor of plaintiffs.

      A. Abbott, for app’lts; W. W. Willard, for resp’ts.
   'Per Curiam.

Judgment affirmed on opinion of court below.

The opinion of Mr. Justice Patterson in the court below is as. follows :

The cases in this state and in other j urisdictions in which interpretation has been given to § 18 of the limited partnership act of Hew York, as it reads in the Revised Statutes [1 Rev. St., p. 765], • or to enactments similarly worded of other states, hold that the use of the words “and Company” or “& Co." in the firm name and style of a limited or special partnership makes the special partners liable as general partners, if such use has been with their knowledge, consent, and intent (Ward v. Newell, 42 Barb. 482; Bradbury v. Smith, 21 Me. 117; Andrews v. Schott, 10 Pa. St. 47), thus giving full enforcement to the liability declared by such enactments as a consequence of such use. It has also been held by the general term of this court that the use of the words contrary to law would work the same result, even if the statute were silent as to the imposition of a penalty. Ward v. Newell, supra. I do not understand the effect of these decisions to be disputed by the learned counsel for the defendants; but it is claimed that legislation contained in various amendments of § 13 has radically altered the rule of liability, whatever may theretofore have been the reason bf the decisions made by the courts under provisions similar to those of the revised statutes. In 1862 (chapter 476, Laws), 1864 (chapter 43), and 1866 (chapter 661, § 1) changes were made in the New York.law respecting the firm name of this class of partnerships, and in the last of these acts it is provided that “the business of the partnership shall be conducted under a firm name in which the names of the general partners only shall be used, except that where there are two or more general partners the firm name may consist of either one.or more of such general partners, with*or without the addition of the words ‘and Company ’ or ‘& Co.,’ ” etc. This statute was in force when the limited partnership in which the defendants Hopkins and Thomas were the special partners, and Alley the only general partner, was formed, and the firm designation of which in the papers filed, and under which business was transacted, was “ W. S. Alley & Co.” The privity and • intent of the special partners in this use are established by their signing and filing the certificate containing the firm name. The subject before the court is the proper construction of § 13 as it now reads, and as applied to a limited partnership having but one general partner, and using as its firm name that of the only general partner, with the addition “& Co.” to the name of that general partner. I think the construction must be that the nominal special partners are liable as general partners. The change in the law was permissive, only, and restricted to special circumstances. It is true that from 1862 the distinct interdiction of the use of the addition at all has been removed, but the limitation of the permission to use it, to the one prescribed and defined set of circumstances, seems to show an undoubted legislative intent to confine the use to that one particular set of circumstances. This is not clinging too closely to the letter of the law, ignoring its spirit, but is rather recognizing the legislative purpose of adhering to what was theretofore inhibited in tolo, except as such adherence was specifically abandoned. This intent is clearly expressed in the very terms of the statute by the employment of specific words of restricted allowance. Judge Edmonds, in his formulation of the rules for the interpretation of statutes, says the intention of an act is not to be presumed, but is to be gathered from its language, and, if that can be done, the policy of the enactment is not to be regarded. But, if we do consider the policy of the law upon the subject, it seems to justify the interpretation given. An act of 1833 (chap. 281) provides that where, in a firm designation, the words “and Company" or “ & Co.” are used, they shall represent an actual partner or partners. That means a general partner or partners, for the use of the addition in special partnerships was then prohibited by the Revised Statutes; so that, when the change as to special partnerships was authorized, there was in force a specific statute regulating the use of the words referred to, and the authorized change in limited parnership designations must have been made in view of the other legislation which existed at that time and still exists. The general policy of the law was therefore to confine the use of the words to general partnerships, each member of which would be liable in that relation, the special ex-ception being in the case provided for by the amended § 13 of the limited partnership law. Such being the state of the law, the exception must be strictly construed. It is urged that there can be no good reason why the privilege of using the addition should be granted where there are two or more general partners, and denied where there is but one such partner; but there is a substantial reason why it should be so, and that is that the use of the addition, as authorized by law, would be conclusive evidence to those dealing with the concern that more than one person was liable as a general partner. But, even if the criticism were sound, it is not the only seemingly arbitrary part of the statute. Construction was given to the Pennsylvania statute on the same point in the same way in 1883 (Bank v. Gruber, 14 Wkly. Notes Cas. 12), and it is said (Thayer, J.): “ This act therefore removes the prohibition relative to the use of the words 1 and Company ’ only in cases where there are more than two general partners [our act says “two or more ”], and requires, as a condition, that the names of all the partners ’’ shall be put on a sign, as ours does. Reference is made by the learned counsel for the defendants to an earlier case in Pennsylvania, decided in 1875 (Bank v. Bullock, 10 Plila. 309), as sustaining his view of the proper construction of § 13 óf our statute. I cannot adopt all the reasoning of that case. It may be said, however, that the Pennsylvania supplementary act of February, 1868, differs from ours, in that it is there provided that the firm name of any limited partnership may consist of the name of any general partner, with the addition, etc. That may indicate that in Pennsylvania the firm name has ceased to be of much importance ; but I cannot conclude that under our law the firm name has ceased to have any significance, or that the displayed sign, with the names of the general and special partners upon it, is to take • the place of the firm style. Holding these views, I am of the opinion that the plaintiffs are entitled to judgment.