text:
    Job M. Wilbur, Resp't, v. James R. Collin et al., App'lts.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Contract—Writing.
    Where the terms of a contract are all agreed upon and nothing more is to be done except to reduce them to writing, the contract is complete even though the writing is never drawn.
    3. Lease—Commencement.
    An assignee can surrender or waive any rights he has under the lease, and make a new lease, to commence at the time of such surrender.
    3; Pleading—General denial.
    Evidence, in an action for rent, that the lessor had conveyed the premises prior to the termination of the lease, without reserving the rent, is inadmissible under a general denial.
    4. Same.
    Under a general denial, the defense that the wife of the lessor was a joint owner of the premises is not available to the defendant:
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    James C. Rogers, for app’lts; J. M. Whitman, for resp’t.
   PARKER, P. J.

The plaintiff in this action sues for a balance which he claims to be due from defendants for rent upon a verbal lease of a building in the village of Sandy Hill for the term of one year, expiring December 4, 1894. There is a sharp conflict of evidence between the parties as to whether any bargain was completed for the leasing of the building; the defendants claiming that it was left open to be reduced to writing, and that subsequently the plaintiff insisted" upon terms'which were never talked between them, and to wMch they could not agree, and the plaintiff claiming that on or about December 1, 1893, there was a.complete verbal bargain between them, whereby the defendants agreed to rent the premises for $300 per year, and upon certain other specified terms fully stated and settled between them. The defendants occupied the building from the 4th of December, 1893, until April 1, 1894, and paid to plaintiff rent at the rate of $300 up .to that date. 'They then surrendered to him the possession of the premises, and refused to pay anything more. The defendants explain their possession and, the payment of rent as follows: They claim that at the time they applied to plaintiff for a lease they had just purchased a stock of groceries that was in it from one Fancher, who was then occupying the building, and had also taken from him by parol agreement an assignment of his lease, which would expire on April 1, 1894; that they applied to plaintiff for the puipose of getting a new lease for a longer period; that when they found they could not agree with plaintiff upon the terms of a lease they continued in possession under the Fancher lease, until April 1st, and then surrendered the premises. The rent due from Fancher was at the rate of $200 per year, and defendants claim their payment to plaintiff of $25 per month up to April 1st, instead of to Fancher, at the rate of $16.66 per month, was made for the purpose of avoiding aUy trouble with plaintiff. The court left to the jury the question whether the bargain between the plaintiff and the defendants was fully made and completed as he claimed it was; that is, whether the defendants did agree; upon terms fully stated and understood by them, to lease from the plaintiff for the term of one year the premises at the agreed sum of $300; and the court also properly instructed the jury as to the rule requiring the minds of the parties to meet, and to thoroughly understand each other, in order to malee a bargain complete. Under this charge the jury found a verdict for the plaintiff for the full year’s rent, less what had conce'dedly been paid. - A careful examination leads us to the conclusion that- we should not disturb the verdict of the jury on the ground that it is not sustained by the evidence in the case. Of course, if the minds of the parties did not meet as to all the essential particulars of the contract, there was no leasing. Of course, if a written contract was subsequently to be drawn up, and it was left until then to agree upon some of its terms and conditions, there was no leasing. But, if the terms were all agreed upon, and nothing more was to be done except to reduce them to writing, the contract was complete, even though the "writing was never drawn. Sanders v. Fruit Co., 144 N. Y. 209; 63 St. Rep. 76. The difficulty with the appellant’s argument is that the plaintiff’s evidence is clear that the minds of the parties did so meet, and there is much evidence in the case to sustain that claim. Evidently some sort of a contract was made, which the parties próposed to have reduced to writing, and the question is whether the one defendants had drawn or the one the plaintiff had drawn correctly expressed the bargain made. It was peculiarly a question for the jury, who saw all the witnesses, whose attention was called to the precise point to be decided by them, and who were therefore as well prepared as we are to determine from the conflicting evidence before them which party was giving a true version of the transaction. Newman v. Wilson, 78 Hun, 295; 60 St. Rep. 243; Thompson v. Vrooman, 21 N. Y. Supp. 180; Fowler v. Van Natta, 71 Hun, 343; 55 St. Rep. 41; Devlin v. Greenwich Sav. Bank, 125 N. Y. 756; 35 St. Rep. 922.

Nor do we think that, if there was an outstanding right in Fancher to occupy the premises until April 1st, it was any legal objection to the making of such a contract between those parties as the plaintiff claims was made. According to the defendants’ statement, when they applied to plaintiff for a lease for the term of one year or more, they had already bought out Fancher’s interest, and, inasmuch as they then represented him, they could surrender or waive any rights which ¡his lease gave, and were in a situation to malee such a new lease, to commence at that date, as they chose to make. If they did in fact then make a new lease, to commence then, it would seem clear that they surrendered any lights they acquired under Fancher’s lease, and held their possession thenceforth under the new leasing. Coe v. Hobby, 72 N. Y. 141-146. If this view is correct, none of the exceptions to the charge or to the rulings concerning the Fancher lease are ground for a new trial. Concede that such a lease existed, and that it was assigned to defendants, as they and Fancher claim, and yet it furnishes no defense, if the new agreement was made upon which this action is based. The whole, case seems to turn upon the question of fact whether a new lease was taken by defendants as plaintiff claims, and we cannot disturb the finding of the jury upon that question.

The offer by defendants to show that in October prior to the termination of. the lease the plaintiff had conveyed away the premises without reserving the rent for same was properly excluded. The answer is a mere general denial, and under it such a defense as the offer contemplated could not be shown. McKyring v. Bull, 16 N. Y. 297-307; Linton v. Fire Works Co., 124 id. 533-536; 36 St. Rep. 694.

For the same reason the defense that the wife of the plaintiff was a joint owner of the premises was not before the court, and not available to the defendants in this action. Abbe v. Clark, 31 Barb. 238; Conklin v. Barton, 43 id. 435. We discover in the record no error for which this judgment should be reversed.

Judgment and order appealed from affirmed, with costs.

LANDON, MERWIN and PUTNAM, JJ., concur; HERRICK, J., dissents.


source: Caselaw Access Project

author: MARCUS, S.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Spencer Clinton et al., as Executors, etc., of Harriet A. Bennett, Deceased.
    (Surrogate’s Court, Erie County,
    Filed February, 1896.)
    1. Trustees—Commissioners.
    Where executors hold a fund as trustees to apply so much thereof as they may deem judicious to the support of the cestui que trust, they take such an estate only as- is commensurate with his trust, and commissions can be computed only to such an extent.
    2. Executors—Commissions.
    No values can be estimated upon land in order to fix commissions in advance of its conversion into money, nor can commissions be allowed on unsold lands.
    3. Same.
    Executors are entitled to no more compensation than for moneys actually received and paid out.
    Proceedings for the judicial settlement of the accounts of Spencer Clinton and others, as executors of Harriet A. Bennett, deceased. ;
    Adolph Rebadow, for Spencer Clinton and others; Clark H. Timmerman, for infant legatees.
   MARCUS, S.

This is a proceeding for an accounting, in which the principal questions to he determined arise from certain claims made by the executors and trustees for commissions under the statute. The amount involved and the question to be considered lead me to give my reasons for reaching conclusions hereinafter expressed.

The executors and trustees of this estate claim each to be entitled to full compensation in both capacities, on the ground that, as trustees, they became entitled, under the will of decedent, to charge commissions when their duties as such trustees became ended and terminated by the death of David S. Bennett, and that since the death of David S. Bennett, they became and are entitled to charge commissions as executors, and also to be allowed commissions on the value of certain real estate devised to them in trust, and remaining unsold at the present time. Harriet A. Bennett died on the 2d day of February, 1894, leaving a will, which was proved, and letters testamentary issued to Spencer Clinton, Truman G. Avery and Georgiana W. Jenks, as executors.

They entered upon the discharge of their duties, and now present their account for judicial settlement. No objections are made to the account, and the same must therefore be allowed as filed. To the claims of the executors for commissions as trustees, the special guardian for the infant legatees objects. The account shows that the personal estate of the testatrix amounted to $66, 299.29; her real estate being the Bennett elevator, valued at $500,000, and an income thereof since her death, amounting to $94,606.21. If the claim of the learned counsel for the executors is good, then two commissions must be allowed to each of the three executors, in the two capacities of trustees and executors, amounting to about $36,000, for their services. This matter has been presented and briefs filed upon the theory that the test alone is, in' this case, whether the duties of the ofiices of executors and trustees are “interwoven, inseparable and blended together,” or whether they were separable, distinct and not coexisting. Under item three of the will of the testatrix, the following words are used:

“I give, devise and bequeath all my estate, both real and personal, including all claims and demands which I may possess, not hereinbefore devised, to my executors, hereinafter named, as trustees, to have and to hold the "same upon the following trust: To apply the income thereof, and so much of the principal thereof as, in their judgment, shall be judicious, for the care, support and maintenance of my husband, David S. Bennett; and I give them full power and authority to use the whole of said principal and income for that purpose, if, in their judgment, it shall be advisable to do so to secure his .happiness and comfort.”

The counsel for the executors claim that they are entitled to compensation as trustees, upon the proposition that this trust is separable and distinct from the administration of the estate; while the special guardian contends that the two functions seem to co-exist during the whole duration of the trust; that the duties the executors do not cease before those of the trustees begin; and, further, that the will provides that the estate should go first into the hands of the executors, for the purpose of carrying out items one and two, and then to the trustees, for the purpose of carrying out item three, and then again into the hands of the executors, for the purpose of carrying out the remainder of the provisions of the .will, making the trust an incident to the duties of the executors, which began before the commencement of the trust, and continued through its whole duration and after its determination.

In the view I take of this matter, I deem it unnecessary to determine whether the functions and duties of the executors as such, on the one hand, and as trustees, on the other, are separable and distinct. The executors are not accounting as trustees. The death of David S. Bennett, which occurred on the 6th day of November, 1894, terminated the trust, and the duties, powers, •and functions of the trustees thereupon ceased. Undoubtedly, they would have had the right to expend the entire estate, under the trust, for his benefit, if they had deemed the same judicious, for they had the authority to do so. But they did not. The estate goes back from the trustees'to the executors, by operation of law; for the trust-does not mention or direct what shall be dcm.0 with the residuum of the trust estáte after the death of David S. Bennett. The trusteés took title only to so much of the “ estate as was expended for the care and support of the cestui'quetrust, and they are entitled to commissions pro tanto. The estate of the trustees’ took priority over the estate of the executors- only for the purpose of the trust, and to no greater extent, and the unsold lands, being the Bennett elevator, passed upon the termination of this trust to the executors.

The counsel for the executors argues that the' executors, as-trustees, are entitled to commissions upon the entire estate comprehended by the trust) if the trustee had'expended but 50-cents for the cestui que trust, and he then had died before any further expenditure had been made by the trustees in his behalf. I cannot agree to such a contention. Under the common law, a trustee was entitled to- no compensation; but the statute now gives commissions, but always upon the assumption that something has been done by the trustees to entitle them to the same, and that services of some kind were rendered. Nowhere in the account in this case (which must be regarded as a distinct admission of all matter’s stated therein) can be found a payment or transfer of any property as trustees. There are no vouchers, receipts or payments in this large account made as trustees, unless it be the small sum charged to the account of David S. Bennett, amounting to $236.25, and the household expenses, amounting to $2,339.04; and, while doubt, might be expressed as to these amounts, I am satisfied to allow and recognize the expenditures of these sums by the executors in their capacity as trustees. The trustees took, such an estate only as was commensurate with their trust, and commissions can be computed only to such an extent. 'Any other view would result in paying for services not rendered; and to ■ allow to the executors, as trustees, the sum of about $18,000, upon the theory that they had the right to convert the estate comprehended by the trust, but which they did not do, because of ample means from other sources to maintain the cestui que trust, would be injecting life into a dead trust, with no other purpose than to enrich these executors, as trustees, for services - never performed.

The counsel for the executors sought, upon the hearing, to estimate the value of the unsold real estate, in order to fix a basis for computing the commissions of the trustees, and such testimony showed the elevator property to be worth, taking the minimum amount given, $500,000. > The case of Phoenix v. Phoenix, 28 Hun, 629, cited in the brief of counsel for the executors, which held: “In a trust of this nature)'where the entire control and management of the real estate is confided to the trustees, the decisions are uniform in holding that their commissions are to be cast upon the value of the real estate, as * safe, prudent and uniform mode of ascertaining the value of the services rendered by the trustees,”—was reversed in Phoenix v. Livingston, 101 N. Y. 451, as to the allowance of commissions upon the value of unsold lands. Ho values can be estimated in order to fix commissions in advance of conversion into money, nor can commissions be allowed on unsold lands. The mere holding of title will not be deemed money for the purpose of computing commissions. Matter of McLaren’s Estate, 6 Misc. Rep. 483; 57 St. Rep. 832; Phoenix v. Livingston, 101 N. Y; 451. The rule laid down in the case of McAlpine v. Potter, 126 N. Y. 290, 291; 37 St. Rep. 6, clearly decides that no commissions can be based upon estimated values. Since there is nothing but unsold elevator property claimed by the trustees on-which to base commissions, none could be allowed the trustees until actual conversion into money or its equivalent. There was no “receiving and paying out any moneys,” which acts are essential before commissions can be allowed.

The special guardian also objects to the executors each receiving full commissions on the ground that the personal property, as. shown by the account of the executors, does not amount to. $100,000, or more, over all her debts, and thus come within, section 2736 of the Code of Civil Procedure, so that each of the three executors may be entitled to full commissions. I cannot agree with him in this contention. While it is true that the account does not show the personal property of the testatrix to have been of the value of $100,000 or more, yet by adding the value of the elevator property of which she died seized, and which remains unsold, the total value of her property will then largely exceed $100,000.

An examination of the will satisfies me that the testatrix directed a conversion of the elevator property. The will directs a sale of all of her real estate. The duty,is obligatory, and by virtue of such direction, under the well-known rule of conversion, the real estate becomes personalty as of the time of her death. Stagg v. Jackson, 1 N. Y. 212; White v. Howard, 46 id. 162; Greenland v. Waddell, 116 id. 240; 26 St. Rep. 667; Redf. Prac., tit. “Canon of Interpretation,” 14. Although the moneys actually received by the executors do not exceed $100,000, yet, for the purpose of ascertaining the value of the personal property over all debts, evidence was properly given to show that the remainder of the unadministered estate will exceed $100,000, so that the court can determine whether the allowance should be a full compensation to each executor, or a full compensation to all; but the executors are entitled to no more compensation than for moneys actually received and paid out. The executors can, therefore, only be entitled, on this accounting, to commissions on the moneys actually received and paid out.

I therefore conclude to allow to each executor full commissions -upon the moneys actually received, and paid out, as shown hy their account, and to allow a single commission in their capactiy as trustees upon the amount expended in behalf of David S. Bennett. The individual claims of the executors against the testatrix, proved before the surrogate, are allowed as proven.


author: ABBOTT, S.

text:
    In the Matter of Probate of the Will of Jane Gasten, Deceased.
    (Surrogate’s Court, Kings County,
    Filed February, 1896.)
    1. Wild—Construction.
    Where the purpose of a gift is the benefit solely of the donee himself, he can claim the gift without applying it to the purpose, whether the purpose be in terms obligatory or not.
    £. Same.
    A bequest to a church to pay off a mortgage thereon will go to the church, though part of the debt was paid in the life time of the testator, and he subscribed towards its payment.
    S. Same—Ademption.
    The principle of ademption applies to such a legacy in so far as it has been reduced by the subscriptions of the testator towards paying off the mortgage, but it applies no further, as there can be no ademption by strangers.
    Proceedings for the probate of a will.
    William Gasten, for proponent; Burr, Coombs & Wilson, for Classon Avenue Presbyterian Church; Campbell & Moore, for residuary legatees; James W. Glendenning, special guardian.
   ABBOTT, S.

Jane Gasten died on the 22d day of November, 1895, leaving a last will and testament, which was duly executed on the 7th day of June, 1890. On the probate of the will, construction under section 2624 of the Code is sought of the first .paragraph, which reads as follows: “First. I hereby give and beoueath to the Classon Avenue Presbyterian Church, in the city of Brooklyn, county of Kings, and state of New York, the sum of twenty-five thousand dollars ($25,000), for the purpose of paying off the mortgage on said church, or the chapel belonging thereto, which was assumed for the purpose of building said chapel.” At the time the will was penned, in 1890, there was a mortgage of $25,000 on said Classon Avenue Presbyterian Church, no part of which had been paid off. Subsequently, however, at various times, certain sums were paid on said mortgage, amounting in the aggregate to $11,000, so that at the time of the decease of the testatrix there was due and owing on said mortgage only the sum of $14,000, with some interest. The question to be determined is whether, under the said first elause of the will, the said church is entitled to the whole legacy of $25,000, or to only so much thereof as will enable it to pay off the mortgage as it now stands. The church, answering the petition for construction, alleges, among other things, “that subsequently to the execution of the said will the sum of $11,000 was paid on account of the principal of the mortgage in said will and said petitions referred to; of which payments the said Jane Gasten had knowledge, and towards making which payments she subscribed various amounts, yet, notwithstanding the said fact, the said Jane Gasten permitted her said will to remain unchanged and unaltered.” This allegation is not denied. The counsel for the church rest on this answer, and have not presented to the court any brief to elucidate their view of the law. The counsel for the residuary legatees present an elaborate brief, contending that it was the expressed intention of the testatrix to give a legacy of $25,000, or so much thereof as might be necessary, to pay off the mortgage as it should exist at the time her will took effect, or, in other words, that the amount named was descriptive only, and the clause, “for the purpose of paying off the mortgage on the church,” etc., serves as a limitation of the bequest as well as explanation of its purpose. After careful consideration of the brief and the authorities cited ¡therein, I was ait first inclined to take this view, but subsequent independent research has convinced me that it is erroneous, and the proper disposition of this question depends upon a different rule from any cited by the learned counsel. I have been unable to find any case in this state bearing directly upon the construction of such a clause as this, but in 1 Jarm. Wills (5th ed.), p. 694, the following rule is laid down: “We are to consider whether, in cases where words are added expressing a purpose for which the gift is made, such purpose is to be considered obligatory. Where the purpose of the gift is the benefit solely of the donee himself, he can claim the gife without applying it to the purpose, and that, it is conceived, whether the purpose be in terms obligatory or not. Thus, if a sum of money be bequeathed to purchase for any person a ring, or a life annuity, or a house, or to set him up in business, or for his maintenance and education, or to bind him apprentice, or towards the printing of a book the profits of which are -to be for his benefit, the legatee may claim the money without applying it, or binding himself to apply it, to the specified purpose; and even in spite of an express declaration by the testator that he shall not be permitted to receive the money. Apreece v. Apreece, 1 Ves. & B. 364; Dawson v. Hearn, 1 Russ. & M. 606; Ford v. Batley, 17 Beav. 303; Knox v. Hotham, 15 Sim. 82; Gough v. Bult, 16 id. 45; Webb v. Kelly, 9 id. 472; Barlow v. Grant, 1 Vern. 255. In Lockhart v. Hardy, 9 Beav. 379, it was held that a legacy to a devisee to pay off a mortgage debt on the estate devised to him was held' good though the mortgage was foreclosed in the testator’s lifetime. These cases rest on the principle that the court will not compel that to be done which the legatee may undo the next moment, as by selling the thing to be purchased or giving up the business.” This rule, in my opinion, is the proper one to be applied in this case, and the whole amount of the legacy should be paid to the church, irrespective of the purpose. I have no doubt that the principle of ademption applies to this legacy in so f aras it has heen reduced by the subscriptions of the testatrix towards paying off the mortgage; but it applies no further, as there can be no ademption by strangers. Rop. Leg. 380. I will order a. reference in this matter to ascertain the amount subscribed and paid by the testatrix towards the reduction of the church mortgage, and, when this is ascertained, a decree may be presented providing for the ademption of the legacy accordingly.

Ordered accordingly.


author: DUNMORE, J.

text:
    Frank E. Wheeler, Pl'ff, v. Henry S. Mowers, Def't.
    (Oneida County Court,
    Filed February, 1896.)
    1. Sale—Misbepeesentations. '
    A misrepresentation, to become the basis of fraud, must be of an " existing fact and not a promise. It will not be deemed a rcpre- ■ sentation, if a promise, and if verbal, will be merged in a written agreement.
    2. Contbact—Validity.
    A party who has full opportunity to read and examine a writing and does not claim that any fraud or artifice was resorted to to prevent his reading or examining it, will not be relieved from liability on the ground that he is ignorant of its terms because he omitted to read it.
    Motion to set aside a verdict in favor of defendant and for a new trial.
    S. M. Lindsley, for the motion; James Coupe, opposed.
   DUNMORE, J.

Defendant disputes his liability upon the contract in question, upon three grounds: First. He claims he was induced to enter into the contract by fraudulent representations. Second. He claims that the words written upon the margin of the contract, “It is understood that this guaranty is to heat the rooms herein mentioned, with the doors closed to rooms which do not contain radiators,” were fraudulently concealed from him. Third. He claims plaintiff has failed to perform his contract by not furnishing heat.

As to the first alleged defense, the answer alleges that plaintiff “represented to the defendant that the said heating apparatus was perfect in every respect; that it would heat his house and premises, and do the work better than a furnace; that it would pay for itself in five years, or less time, in the saving fuel; that it was cheaper in the end than a furnace; that there was no gas or dust about it; that it would heat the defendant’s house, and in any decent winter weather defendant could leave his doors, throughout his house, open, and it would heat his house better than a furnace would do; and other like statements and representations in praise of said heating apparatus.” Most of those representations were promissory in their character, and, as they applied to a thing not then in being, but which this contract provided should be constructed, and specified how it should be constructed, they must be regarded, not as representations, but rather as parol promises, and therefore merged in the written agreement. A misrepresentation, to become the basis of fraud, must be of an existing fact, and not a promise. Fisher v. New York Common Pleas, 18 Wend. 608; 8 Am. & Eng. Enc. Law, 637, and cases cited. Applying the evidence to these allegations, and we find it clearly insufficient to present a question for the jury upon this branch of the case.

As to the second alleged defense, defendant testified that a .copy of the contract was brought to him at the roundhouse in Utica, and that he read it, but did not sign it then, and that it did not contain the marginal writing. Subsequently he went to plaintiff’s place of business, and was introduced to Mr.. Daniels. 'That the contract, which he signed, was then produced in duplicate. One copy was laid on the desk- before him, while Mr. Daniels read from the other. Defendant claims that the marginal writing was not read to him. He testified that he read the contract over carelessly, but did not see the marginal writing. He admits that he had full opportunity to' read and examine it, and does not claim that any fraud or artifice was resorted to to prevent his reading or examining it. He thereupon signed it, and took a duplicate copy home with him, and retained it in his possession. The question presented here is, can the defendant, under those circumstances, be permitted to come into court, and say that he did not understand the terms of the contract, and therefore is not bound by it? In Upton v. Tribilcock, 91 U. S. 50, Mr. Justice Hunt, in writing the opinion of the court says:

“That the defendant did not read the charter and by-laws, if such were the fact, was his own fault. It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper upon which they were written. But such is not the law. A contractor must stand by the words of his contract; and if he will not read what he signs, he alone is responsible for his omission.”—citing Jackson v. Croy, 12 Johns. 427; Lies v. Stub, 6 Watts, 48; Farley v. Bryant, 32 Me. 474; Coffing v. Taylor, 16 Ill. 457; Stapylton v. Scott, 13 Ves. 427; Alvanley v. Kinnaird, 2 Macn. & G. 7; 29 Beav. 490.

See, also, Grace v. Adams, 100 Mass. 505.

Defendant relies upon Albany City Savings Institution v. Burdick, 87 N. Y. 40. In that case one of the defendants in a mortgage foreclosure action sought to reform a deed conveying the mortgaged premises to Mm by striMng therefrom a clause by which he assumed to pay the mortgage, claiming that the grantor fraudulently inserted it in the deed. That case is readily distinguishable from this. A deed of a piece of property is a definite instrument of itself. The mere mention of it implies what it would ordinarily contain, but that is not so as to a special agreement between parties like the one in suit. To hold that the facts presented here would enable the defendant to escape from the liability of his contract would establish a rule that would destroy the value of written agreements, and put a premium on perjury. It would be strange, indeed, if, after parties had entered into a written contract by which one was to furnish labor and materials- and the other was to pay for the same, that after one had performed Ms contract the other would be permitted to say: “It is true, I signed that contract, and I had full opportunity to inspect it, hut I read it carelessly, and did not observe one clause that is in it; and therefore I do not consider myself hound by it.” I do not "believe the courts in this state will adopt such a rule. I am therefore of the opinion that defendant has not shown any facts-that entitle him to he relieved from liability upon the contract-as executed, including the marginal writing.

As to the third alleged defense,—of nonperformance. The-contract does not guaranty any degree of temporary heat. At the time the tests were applied the inside doors were not hung, the stairways w-ere open, the walls were freshly plastered, and the evaporation from the drying walls' tended to reduce the temperature. The guaranty, I think, should he construed to apply to a finished house and a completed apparatus. There, therefore, was no such test as the contract contemplates as to whether plaintiff" had performed, and by the terms of the contract could be no such test until after the $100 sought to he recovered here became payable. My conclusion, therefore, is that the evidence failed to establish any defense to the action, and the verdict must he set aside,, and newtrial granted; costs to abide event. If either party desires,, the order may recite that the verdict is not set aside and new trial granted in the exercise of any discretion, hut upon the ground, that the evidence does not establish any defense as matter of law.

Verdict set aside, and new trial granted.


text:
    In the Matter of John Griffiths.
    (Oneida County Court,
    Filed February, 1896.)
    1. Elections—Registry list—Notice.
    A provision, in an order to show cause why the name of an alleged voter should not he stricken from the registry list of voters, that notice thereof should be given to other persons, is merely surplusage.
    2, Same—Charitable institution—Residence.
    Where a charitable institution is not supported in whole or in part at public expense nor an inmate thereof supported there at-public expense, the former constitutional provision does not prohibit him from acquiring a residence; and, where he claims that he has taken up his residence there permanently and expects to remain there during the rest of his life, he becomes, at the expiration of one year from his entrance, a resident of this state and a legal resident of that election district.
    3. Same.
    Section 3, article 3 of the Constitution of 1895, was not intended to change the legal status of the voting residence of any person whose right had vested prior to January 1, 1895.
    James Coupe, for the motion; H. L. Gates, opposed.
   DUNMORE, J.

A preliminary objection is raised by Mr. Gates that the order to show cause providing that notice should be given to Joseph Harding, Frank Drash, and M. Devereux had not been complied with, ahd that no notice has been given to them as required by the terms of the order. We think the provisions of the order referred to may be treated as surplusage, for the reason that the statute does not require notice to be given to any person except Mr. Griffiths; and, due notice having been given to him, the preliminary objection is overruled.

Upon the hearing, the following facts were stipulated:

“That said Griffiths came to the Home for Aged Men November 1,1893, paid the usual application fee of $250, and became an inmate thereof, subject to its rules and regulations; that he voted thereafter at the election held in 1894; and he then claimed, and now claims, the home as his legal voting residence, and claims that he has no other legal home, and that he expects to remain at said home for the remainded of his life, and is there kept (that is, supported) as an inmate of such institution.”

At the time said Griffiths came to the home in question, the provisions of the constitution relating to his right to gain a residence there were as follows (articlt 2, § 3):

“For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, at public expense; nor while- confined in any public prison.”

There is no pretense that said institution is supported in whole or in part at public expense, or that said Griffiths was supported there at public expense. As said Griffiths was not kept at said institution at public expense, there is nothing in that constitutional provision prohibiting him from acquiring a residence there; and as he claims that he has taken up his residence there permanently, and expects to remain there during the rest of his life, at the expiration of one year from his entrance to the home he became a resident of this state, -and a legal resident of that: election district. There is no claim hut that he possessed all of the other qualifications necessary to make him a legal voter. He was, then, on the 1st of November, 1894, a legal resident and a legal voter in the Second election district of the Eleventh ward, and continued to be up till the 1st of January, 1895. At that time the new constitution went into effect. The only 'change-made in the above setion was by the substitution of the words “nor while,kept at any almshouse, .or other asylum or institution wholly or partly supported at public expense or by charity,” in place of the words “nor while kept at any almshouse, or other asylum, at public expense.” The question be.fore me is as to the effect of that amendment upon the legal status of said Griffiths as a voter in said district. . If the rights of said Griffiths as a voter had not vested prior to January 1, 1895, an entirely different question would be presented; but as he had acquired a legal voting residence in that district prior to the time the new constitution took effect, and therefore had lost a residence to vote elsewhere by reason of his having gained residence in this .district, should the constitution be so construed as to divest him of that vested right, and leave him without any voting residence anywhere? I think not. I do not think that was the purpose that constitutional 'amendment. I do not think it was intended to change the legal status of the voting residence of any •person whose right had vested prior to January 1, 1895. The application must therefore be denied.

Application denied.


text:
    In the Matter of Richard Gilloren for the Correction of Assessments and Taxation.
    (Oneida County Court,
    Filed February, 1896.)
    Taxes—Illegal refunding.
    Under section 16, chapter 686 of 1892, a county judge cannot, until an- application for the purpose of having an illegal tax refunded has been made to the board of supervisors, make on order on the subject.
    George C. Carter, for petitioner; George C. Morehouse, opposed.
   DUNMORE, J.

This application is made under section 16, chap. 686, of the Laws of 1892, which provides as follows:

“Any such board may correct any manifest clerical or other error in .any assessment or returns made by any one or more town officers to such board, or which may or shall have properly come before such board for its action, confirmation or review; and cause to be refunded to any person the amount collected from hiiii of "any.tax.illegally or improperly assessed or levied,and upon .the order of. the county court it shall refund any such tax.”

The above is a revision of statutes previously existing, and has been upon the statute books, in substantially the same form for more than 25 years. Its construction and application have been the subject of much contention in the courts, and the decisions are not entirely harmonious. People v. Superivsors of Ulster Co., 65 N. Y. 300; Hermance v. Supervisors, 71 id. 484; In re New York Catholic Protectory, 77 id. 342; Williams v. Supervisors, 78 id. 561; In re Buffalo Mut. Gaslight Co., 144 id. 228; 63 St. Rep. 98. The case last cited clearly defines the powers of the board of supervisors, and also that of the county court, under the section of the statute referred to. On page 233, 144 N. Y., and 63 St. Rep. 98, the rule is stated as follows:

“(4) But the legislature anticipated the possibility that the board might neglect or refuse to refund an illegal tax, to the person who had paid it. In such cases the board is required, by the statute, to cause it to be refunded upon the order of the county judge, and this is the only power which the statute has conferred upon that officer. * * * The board could have corrected the error before signing the warrant for the collection of the tax, but not having done so, and not having been requested to do so, the power of the board over the matter ended, and cannot be called into action again until the tax is paid; and not until an application for the purpose of having it refunded has been made to them can the county judge make any order on the subject.”

That decision is clearly fatal to the application here, for the reason that no application has been made to the board of supervisors of Oneida county to refund, or cause to be refunded, the tax in question. Until such application is made, this court has no jurisdiction in the premises. The default of the board of supervisors should be opened, on payment of $10 costs, to be offset against costs of said board against petitioner.

The application must therefore be' denied, with costs.

Ordered accordingly.


text:
    In the Matter of Proceeding to Punish P. J. Soley Cole for Comtempt.
    (Oneida County Court,
    Filed February, 1896.)
    Common council—Contempt.

      A committee of the common council, appointed to look over bills and empowered to send for persons and papers and employ counsel and experts, has no power to investig-ate as to whether faro tables or roulette wheels were in operation, or whether unlicensed saloons were being conducted in the city.
    A. M. Beardsley, for the motion; John E. Brandegee, opposed.
   DUNMORE, J.

The original resolution and amendment embraced in one resolution, all surplusage being omitted, would read as follows:

“That a committee of three be appointed to look over all bills from the city surveyor’s department, the police and fire board, charity board, school board, city court, and all departments pertaining to the city, and be empowered to send for persons and papers and employ counsel and experts.”

All the power the committee had it derived from the above resolution. The real inquiry before me is whether the questions addressed to witness dole as to his knowledge of faro tables and roulette wheels being in operation in the city, and as to his knowledge of unlicensed saloons being- conducted in the city, were within the power conferred upon the committee by the above-resolution. In Briggs v. Mackellar, 2 Abb. Prac. 30, the court states the rule applicable to such cases as follows:

“The two questions asked Webster had reference to his nativity, and the witness McCann was asked of what country he was a native. Those questions were irrelevant. The committee were directed to inquire or investigate as to any frauds or corruptions in any branch of -the police department, and the manner in which it had been conducted, and they were confined to that subject and could not enter upon any other. Whether an inquiry as to the nativity of the persons composing the police department would or would not be an appropriate subject of inquiry on the- part of the common council, it is not necessary to determine. It is sufficient that it was not embraced in the resolution referred to the-committee.”

The same rule was laid down in Van Tine v. Nims, 3 Abb. Prac. 39. Courts have adopted a strict, rather than a liberal construction of the powers of common councils of cities, and of committees appointed by them. Dill. Mun. Corp., § 91, states-the rule as follows:

“It is a well-settled rule of construction of grants by the legislature, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended ■within the words of the act or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public.”

Again, in section 89, it says:

“Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.”

Certainly the construction should be no less strict against the power of a committee of a common council than against the power of the original body from whom such committee derived its-powers. Applying a much more liberal rule of construction than the authorities above quoted permit, it is clear that the committee-¡had no power to investigate as to whether faro tables or roulette wheels were in operation, or whether unlicensed saloons were being conducted in the city. The resolution simply empowered the committee to look over the hills of the different departments and empoly such counsel and experts as would enable them to do that. The committee had no power except such as was clearly comprehended or necessarily implied within the words of the resolution. Certainly the power to inquire whether the gambling or excise laws were being violated was neither clearly expressed nor necessarily implied within the words of that resolution. A resolution of this kind is in the nature of a delegation of power. The resolution should be explicit as to what power is delegated, and the committee should he limited to that. ¡Whether the council had power to authorize such an investigation, or whether it would have been a wise exercise of power, is not before me. The only question here is, did the resolution in question authorize the committee to investigate the questions inquired about? The foregoing views lead to the conclusion that it did not. The motion is therefore denied, and the witness discharged.

Motion denied, and witness discharged.


text:
    Fred Newman, Resp't, v. William Woodcock, App'lt.
    (Oneida County Court,
    Filed February, 1896.)
    1. Justice’s couet—Adjournment.
    A justice of the peace has no right to grant the plaintiff’s application for a second adjournment.
    2. Same.
    Such an adjournment is irregular, and as between the parties, the case is out of court.
    3. Same.
    The fact that the payment of defendant’s witnesses’ fees was imposed as a condition of the adjournment does not waive the irregularity.
    George E. Pritchard, for app’lts; George M. Wirt, for resp’t.
   DUNMORE, J.

The second adjournment ivas unauthorized. The justice had no right to grant plaintiff’s application for a second adjournment. By the provisions of the Code the plaintiff is entitled to an adjournment only upon the return day of the summons. Section 2960. When a commission is granted, a further adjournment may he had to procure the execution and return of the commission. Code, § 2983. Here- the adjournment was granted on plaintiff’s motion and against the defendants’ objection for more than eight days, and ivas after one adjournment had been had. The adjournment was, therefore, irregular, and, as between the parties, the case was out of court. The respondent claims that the irregularity was waived because a condition, to wit, the payment of the defendants’ witness fees, was imppsed; and cites Weeks v. Lyon, 18 Barb. 530; Hart v. Small, 4 Paige, 288; Clarke v. Meigs, 10 Bosw. 337; and Peck v. McAlpine, 3 Caines, 166b. Those authorities do not support the respondent’s contention. The fact that the court imposed a condition would not bind, the defendants without their consent. As the judgment must be reversed because of this irregularity, it is unnecessary to examine the other questions in the case.

Judgment reversed, with costs.


author: GARRETSON, J.

text:
    People, Resp'ts, v. Charles Hildebrand, App'lt.
    (Queens County Court,
    Filed February, 1896.)
    1. Criminal law—Adjournment.
    A defendant, charged with a misdemeanor in a court of special sessions, who has procured an adjournment for the purpose of consulting with counsel, is not entitled to a postponement of the adjourned day on account of absence of his counsel.
    3. Same.
    In such case, a criminal court, whether of record or not of record, may, in the absence of counsel, proceed with the trial, particularly if no sufficient excuse is presented.
    3. Same.
    Where no excuse is given for the absence of the witnesses, nor any proof made or offered that they had been subpoenaed or even were within the jurisdiction of the court and could be compelled to attend by subpoena, and no proof made that their testimony was material to the defense, the defendant has no just cause for complaint that his motion for an adjournment upon the ground of the absence of such witnesses was denied,
    4. Appeal—Reversal.
    A judgment upon conviction, rendered by a . court of special sessions, may be reversed by the county court upon appeal and not otherwise.
    5. Same.
    Such appeal must be heard upon the original return, and affidavits and other papers, in support of an application for a new trial, cannot be received.
    6. Same.
    The sentence will not be modified because excessive and severe, where such objection is not presented as an alleged ground of error by the affidavit, and where the return does not bring with it the evidence.
    Appeal from a judgment convicting the defendant, in a court of special sessions, of a violation of the regulations of the board of health of the town of Newtown.
    George C. Moore, for app’lt; Daniel Noble, Dist. Atty., for the People.
   GARRETSON, J.

The appellant was convicted in a court of special sessions, held by the police justice of the town of New-town, of a misdemeanor arising under section 211 of the Penal Code, for a violation of the general orders and regulations of the board of health of that town, and sentenced to pay a fine of $50, and to be imprisoned in the county jail for the term of sixty days. The alleged grounds of error urged by him as calling for a reversal of the judgment are: First, that he was compelled to go to a trial without the aid of counsel; and, second, that he was denied by the court an adjournment because of the absence of two important and material witnesses. So much of the proceedings in the court below as are relevant to these allegations of error have been returned by the police justice, as required by-section 756 of the Criminal Code, and; as no amended or further return has been made under section 757, we are necessarily confined to the matters thus presented in the consideration and determination of the appeal. Id., § 763. The appellant was arraigned before the police justice on September 23d, and pleaded not guilty, and the case was adjourned to the 25th then instant, at the appellant’s request, to enable him to consult with his counsel. On the last-named day the appellant appeared with his counsel, and the prosecutor and counsel for the people were also present and ready to proceed with the trial. The appellant asked for a further adjournment, which was refused by the police justice, whereupon the appellant demanded a jury, and the case was adjourned to October 1st, at 2 p. m., upon which day he appeared without his counsel, and asked that the trial be postponed until 3 p. m., to enable his counsel to appear, and also moved that the case be again adjourned, owing to the absence of two- of his witnesses. The police justice informed him that the motion to adjourn would be considered if the appellant would make an affidavit that the witnesses were material, and that the appellant could not safely proceed to trial without them. This affidavit not being made, the motion to adjourn was denied, a jury impaneled and completed at 3:15 p. m., and the trial commenced. The people were represented by counsel, and the appellant acted in his own behalf. Witnesses for the people and appellant were sworn and examined; the appellant examined his own and cross-examined the people’s witnesses; the case was summed up by both sides; the jury were charged by the police justice, and, after due deliberation upon their part, a verdict of guilty was rendered. While it might have been to the advantage of the appellant to have been assisted by counsel, yet we cannot say that the absence of counsel operated to his prejudice. It cannot be so gathered from the return, and it may not be so presumed. The law does not do more at the outset of any criminal action than give a defendant an opportunity to employ counsel. If he undertakes to secure professional assistance, the responsibility for the presence of counsel, as well as for the consequences of his absence, rests upon the defendant. This case is not one where a defendant is a poor person, and for lack of means was compelled to conduct his own defense. The appellant was granted one adjournment to procure counsel. Having availed himself of this opportunity, he appeared by counsel on the adjourned day, and secured further time, incidentally to his demand for a jury. On the last adjourned day no excuse was offered for his counsel’s absence, and he was not entitled as of right to further delay. The people were ready for trial, and had been so ready on the previous day, and the orderly administration of justice, as well as a proper regard for the rights of the prosecution, in the absence of a sufficient reason to the contrary presented by the appellant, required that the court should proceed with the case. The mere absence of the attorney or counsel'of the accused as ground for postponement of a trial is not favored by the court in any case, especially if a prior postponement has been had. And it will not be seriously questioned that, where a defendant is charged "with a mis-' demeanor, a criminal court, whether of record or not of record, may, in the absence of counsel, proceed with the trial, particularly if no serious excuse, such as sudden illness rendering it impracticable to secure other counsel in time, is presented. It is the practice of magistrates empowered to hold courts of special sessions to inform, the defendant, when arraigned, of his right to counsel, and to give him time to secure counsel if he so desires, and we are disposed to regard this course of procedure with favor, and to require its observance in all cases, particularly in view of the provisions of section 8 of the Code of Criminal Procedure and of article 1, § 6, of the constitution, which guaranty to every person the right to appear and defend in person and with counsel in any trial and in any court, wherever accused of crime; yet it has been held that an omission by the magistrate holding such a court to inform the defendant of his right to counsel was not error. People v. Cook, 45 Hun, 34; 9 St. Rep. 412.

We are also of the opinion that the appellant has no just cause for complaint that the police justice denied his motion for an adjournment upon the ground of the absence of his witnesses. There was no excuse given for their absence; no proof made or offered that they had been subpoenaed, or even that they were within the jurisdiction of the court, and could be compelled to attend by subpoena; and the omission of the defendant to show that their testimony was material to the defense made it incumbent upon the police justice to deny the motion. It was suggested by the appellant’s counsel upon the argument that, being a layman, inexperienced and unlearned in the law, the appellant couid not comply with the ruling of the police justice, and prepare the required affidavit setting forth the materiality of the testimony of the absent witnesses, and the reasons why they were not present in court. Granting this to be the fact, still it does not appear that the police justice was unwilling or refused to take proof in that regard, either in the form of a deposition or by affidavit, and we cannot presume that he omitted to perform any duty which the law imposed upon him to the prejudice of the rights of the appellant.

The appellant’s counsel also urged upon the argument that this court had the power upon this appeal to grant a new trial in analogy to the practice which prevails in the supreme and county courts upon a conviction after indictment, and has presented1 affidavits setting forth facts in support of a motion therefor. Such a course would be unprecedented under the present system of criminal procedure. A judgment upon conviction, rendered by a court of special sessions, may be reversed by the county court upon appeal, and not otherwise. Code Cr. Proc., § 749. As we have already stated, the appeal must be heard upon the original return (Code Cr. Proc., § 763), and affidavits and other papers may not be received in support of an application for a new trial. In a proper case the appellate court may grant a new trial (Id., § 764) where it appears from the return that error has been committed in the court below which requires that the judgment upon conviction be reversed, and justice demands that the appellant should again answer the charge upon the merits, in which event the new trial is had in the county court (Id., § 768). The foregoing disposition made by us of the only alleged grounds of error presented by the appeal affidavit leaves nothing before us to be considered as a reason why a new trial should be had.

We are also unable to entertain the appellant’s contention that the sentence be modified because excessive and severe, for the reason that it is not presented as an alleged ground of error by the appeal affidavit, and for the further reason that the return does not bring with it the evidence, and we have no means of knowing the facts out of which the offense arose. The judgment upon conviction, appealed from, should be affirmed.

Judgment affirmed.


author: VAN WYCK, C. J.

text:
    Annie Finkelstein, Resp't, v. Jacob Bernett, App'lt.
    (New York City Court, General Term,
    Filed April 27, 1896.)
    1. Trial—Charge.
    Where the defendant has admitted,bv not denying in his answer, an allegation of the complaint, no evidence is required on the part of the plaintiff to establish such allegation.

      2. Evidence—Breach of promise.
    In an action for breach of promise of marriage, evidence bearing upon the question of exemplary damages is admissible.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.
    Abram Kling, for app’lt; Al. and Chas. Steckler, for resp’t.
   VAN WYCK, C. J.

This is an action for breach of promise-

of marriage, and the complaint alleges: First, that plaintiff was. and is sole and unmarried; second, that “in March, 1894, she first formed the acquaintance'of defendant, their acquaintance thereupon ripened into mutual love, regard and affection.” Neither of these allegations were denied in the answer, hence plaintiff could not be forced to substantiate either by proof. The defendant (appellant) contends that it was error for the court to decline his request to charge the jury “that there is no evidence on the part of the plaintiff to show that this acquaintance ripened into mutual love and affection,” and again in the court’s refusal to charge his request “that plaintiff did not testify there was any love between her and defendant.” The defendant had admitted-by not denying in his answer the second paragraph of the complaint, that this acquaintance had ripened into mutual love and affection, and no evidence was required on the part of plaintiff to-show the same, nor need she testify as to such. Appellant contends that this allegation of the complaint as to mutual love and affection was not an allegation of the cause of action, or a part thereof, but of a mere element of damage. So, too, would be an allegation of plaintiff’s seduction by the defendant, and yet it would require no proof at trial to substantiate such an allegation,, if admitted by the answer. The admission by the defendant’s pleading that the acquaintance had ripened into mutual love and affection took that question from the realm of dispute, and eliminated the trial thereof from the case. This conclusion disposes of appellant’s contention regarding his challenge to the cause of the juror who said that it would not make any difference in the rendition of his verdict if at the time of the engagement there was no affection on plaintiff’s part for the defendant. It was not error to admit evidence of all the facts and circumstances attending the first meeting and -engagement of the parties, including the inquiry then made by defendant whether she was worth anything, her reply that she had saved up $500, and when she got married she expected to furnish her house with it; his request that if they became engaged he would like to have this money in his care until they were married; that the money was given to him for safe-keeping; that he refused to marry her, and told her he would not marry her unless she gave him more money; that she replied that she had given him $500, every cent she had, and he said that that money hád went away in smoke. At folio 58 defendant asked to have stricken out the testimony as to the $500, and the c.ourt ruled: “Excluded, except to show the general transaction between the parties. Allowed only to show the entire transaction.” And again, at folio 65, the court stated, “The $500 cannot be considered in fixing the damages, but is only permitted in connection with the entire transaction,” and at folio 133 defendant moved to strike out what hád been testified as to the $500, as it cannot be recovered in this action, and “asks the court to instruct the jury that the $500 is not a subject-matter in this action, and cannot be considered by the jury,” and “the court here informed counsel that it would so instruct the jury;” and again, at folio 144, after both parties had closed, defendant requested the court to “charge the jury that the $500 claim or the return of the money has nothing to do with this case, and that it is not a matter for the jury to consider,” and the court stated, “I will so charge the jury;” and finally, at folio 148 in the charge in chief, the court instructed the jury that the fact, however, that the defendant received $500 forms no element of damages in this action, and it is not to be considered by the jury, under any circumstances, in fixing the amount of those damages. If the admitting of the evidence regarding the $500 was error, and if such error can ever be cured by instruction from the court to the jury, this is a case where it was so cured. But it was not error, for the jury, believing that evidence, could have lawfully found that the defendant had maliciously induced the plaintiff to engage herself to him without any intent on his part to marry her, but for the sole purpose of defrauding her of all of her money, and then refusing to marry her, in such wanton disregard of her feelings as to justify the jury in giving her exemplary damages. The verdict of $1,500 is certainly not excessive, and is not against the weight of evidence.

Judgment and order affirmed, with costs.

All concur. .


text:
    John Stimmel, Resp't, v. Charles A. Swan et al., App'lts.
    (New York City Court, General Term,
    Filed April 27, 1896.)
    Estoppel—Judgment.
    In an action by an assignee of the first chattel mortgage against the sureties on an undertaking, upon which the mortgagor was released from custody under an order of arrest in an action against him for the conversion of the mortgaged property, wherein the mortgagor allowed judgment to be taken against him on default on an admission in the answer, a decree in an equity action brought; by second mortgagees, one of whom was one of the defendants in the present action, adjudging the amount claimed to be secured before the execution of the second mortgage, cannot operate as an estoppel against plaintiff in favor of the defendants.
    Appeal from a judgment in favor of plaintiff.
    A. Aplington, for app’lts; Wm. R. Wilder, for resp’t.
   VAN WYCK, C. J.

The record shows that one Lane held a chattle mortgage for $7,450 upon one Swan’s furniture; that Lane assigned this mortgage to Stimmel, the plaintiff herein, for bhe recited consideration of $6,450; that Stimmel foreclosed this mortgage by selling all of the chattels mentioned therein which be could find, realizing $4,551 upon such foreclosure sale; that thereafter Stimmel began in this court an action in trover against Swan, for removing and converting, before such sale, to his own use, certain specified chattels covered by the mortgage. And in his complaint in that action. he alleged the assignment of the mortgage by Lane to him; that Lane had been paid $1,000 by-Swan upon account of amount secured by the mortgage; that there was still due and owing thereon the sum of $6,450, with interest from November, 1888; that after giving credit for $4,551, the amount realized on foreclosure, there was still due and owing upon said mortgage and the indebtedness secured thereby the sum of $2,598; and that the value of the chattels covered by the mortgage, and converted by Swan, was $1,500, for which sum, with interest, he demanded judgment. The answer of Swan, defendant in that action, specifically admits the second paragraph of the complaint, which contains the allegation that Swan paid Lane $1,000 on account of the $7,450 secured by the mortgage, and that there was still due and owing thereon $6,450. In that action defendant Swan was duly arrested, and held to bail in the sum of $1,700, and was released upon the giving of an undertaking of bail in that sum by the defendants in this action, which is brought upon such undertaking. When that action was called for trial, Swan, defendant therein, defaulted; and an inquest was taken resulting in a judgment for plaintiff therein for $2,067, the assessed value of the chattels converted by Swan, and interest thereon. Thereafter executions were issued therein against" Swan’s property, and returned unsatisfied; then against his body,; and returned, “Not found;” and then this action was commenced against these defendants, who had executed the undertaking of bail of $1,700.

The defendants Veitt and Thurber, the sureties, were the only answering defendants; and the main contention, by their answer, is'that, prior to the recovery by Stimmel of the judgment against Swan for the value of the chattels converted, he (Stimmel) had been fully paid the indebtedness secured by the mortgage assigned to him. However, Swan had specifically admitted in his answer that the alleged balance was due on the mortgage, and, if he had been present at the trial of that action, he could not, under his pleading, have disputed the question. The defendants Yeitt and Thurber, at the trial of this action, made no effort to prove their allegations that Stimmel had been fully paid, or that his judgment in the action for conversion against Swan was obtained by fraud, except by offering in evidence the roll of a judgment rendered by the supreme court in an equity suit by Wyland and his copartners, as plaintiffs, against Stimmel, as sole defendant, and which defendants herein had pleaded as a- defense, and by offering to show that the attorney for" Stimmel in his action for conversion against Swan had knowledge that such judgment had been obtained in the equity action. The action at bar is by Stimmel against the sureties on the undertaking’ of bail upon which Swan was released from custody under an order of arrest in Stimniel’s action against him for conversion, and the sureties, these defendants, did “undertake, in the sum of $1,700, that defendant Swan, arrested as aforesaid, shall at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him on the action;” and final judgment was obtained, and executions issued against the property and person of Swan, and the one returned unsatisfied, and the other, “Yot found.” The sureties made no effort to show that this judgment was obtained by fraud or collusion, except by the judgment in the equity action; and the main question here to determine is whether this equity action judgment is an estoppel and legal defense against this plaintiff, Stimmel, who was the defendant therein. The supreme court equity action was by Wyland and his copartners (one of whom was the Thurber who is one of the defendant sureties sued herein, against Stimmel, who is the plaintiff herein, and it seems that after Swan had delivered the chattel mortgage to Lane, and before Lane had assigned same to Stimmel, he executed to Wyland and his partners a second mortgage upon thesame chattels, to secure $1,500, and Wyland et al.’s contention was that Stimmel had advanced only $3,500 at the very time of Lane’s assignment to him; hence that, as between them and Stimmel, his lien was prior to theirs only to the extent of this $3,500; and that, as he had realized on his foreclosure sale $4,551, equity should decree that their lien attached to the fund after payment of this $3,500 and interest. And the court so decreed, although Stimmel contended that at the time he advanced the $3,500, and Lane assigned the mortgage to him, Swan Avas already indebted to him in about $3,000, part of which had been paid to Lane on the mortgage, and that it was agreed by Swan and himself that he take the assignment of the mortgage as security for both sums, and the assignment recites $6,450' as the consideration thereof; and SAvan, in his answer in the action for conversation, specifically admits that that sum is OAving on the mortgage in Stimmel’s hands. This equity decree could not operate as an estoppel against Stimmel in his action against SAvan for conversion, nor can it in this action against the sureties on the undertaking of bail given to secure SAvan’s release from custody under order of arrest in that action.

The judgment is affirmed, Avith costs.

All concur.


text:
    Elwood S. Hand, Resp't, v. William A. Shaw et al., Appl'ts.
    (New York City Court, General Term,
    Filed April 27, 1896.)
    Estoppel—Evidence.
    A party, who first gives parol evidence in explanation of a clause in a contract, against the objection of the adverse party, cannot therein complain of the admission of similar evidence for the same purpose.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.
    D. J. Newland, for app’lts; Chas. De H. Brower, for resp’t.
   VAN WYCK, C. J.

The plaintiff sues for $235, which defendants agreed to pay in trade for their advertisement in a book issued by plaintiff. This contract is in writing signed by defendants, and contains this clause: “This amount ($235 in trade) to be deducted from merchandise to be sold for a proposed new hotel, other than has been estimated or contracted for at this time, and is not transferable to any account without our consent.” The appellants contend that it was error for the court to admit parol evidence to ascertain the intent and meaning of the parties by this clause, and in leaving it to the jury to ascertain from this conflicting evidence what was the agreement in reference thereto. However, it was the defendants who first gave parol evidence in explanation of this clause, and this against plaintiff’s objection. The defendants’ version of the conversation with plaintiff which induced them to put this clause in the contract is that plaintiff “said there was a large hotel that would be opened soon, and he could influence the placing of that order with us; that the order would amount to as much as the one we had received for the outfit'for the Hotel Iroquois, which was over $3,000, and he wanted us to agree to pay $235 in trade after we had got this order.” This was contradicted by plaintiff, and he testified that at that time he was negotiating for the purchase of a property in Connecticut which he intended improving with an hotel, and that he said to-defendants, after some further consideration of it, that, if his object was realized in regard to the purchase of this property, he intended to erect a small house, and might have use for this trade. The proof is that plaintiff went to defendants’ store and selected a lot of china, crockery and glassware (the articles dealt in by defendants), and received an invoice thereof from them for the same at a fixed price of $241.15, and that he tendered them $6.15 in cash, and demanded delivery of same under his contract' for $235 in trade. All of this conflicting testimony was properly submitted to the jury in a well-considered charge,

The appellants, by their counsel’s brief, was error to decline to charge their second request: “That, unless plaintiff has proved that there was such a new hotel at the time he made his demand, the defendants are entitled to a verdict.” But, if the jury believed the plaintiff’s evidence, it would not be necessary for him to have fully completed an hotel before he had right to demand payment in trade for the defendants’ advertisement. Appellants complain of the charge of plaintiff’s request at folio 161 as error, “as there is no testimony in the case at the time the contract was made the parties had in contemplation the proposed hotel at Southport, Conn.” But such testimony is in the case, for plaintiff so testifies at folio 140. These are the only two criticisms made in appellants’ brief in regard to the charge.

The judgment and order are affirmed, with costs.


author: SANDERSON, J.

text:
    Eliza A. Sanford, Pl'ff, v. Fletcher B. Story et al., Def'ts.
    (Greene County Court,
    Filed January, 1896.)
    1. Executor—Specific performance.
    An action to compel the specific performance of an executory contract, made by an executor or administrator, to release a debt, can be maintained.
    2. Principal and surety—Release.
    A reduction by a mortgagee of the rate of interest on his mortgage from six to four per cent., without any consideration, even though without the consent of the surety, will not release the latter from his obligation to pay the amount secured by the bond.
    Appeal from a judgment in favor of plaintiffs.
    F. H. Osborn, for pl’ff; S. Crowell, for def’ts.
   SANDERSON, J.

This is an action to foreclose a mortgage made by Jacob W. Story and wife and Fletcher B. Story and wife to John Hill, since deceased, bearing date April 1, 1872, on land in the town of Greenville. The mortgage is accompanied by a "bond made by Jacob W. Story and Fletcher B. Story, bearing •date on the same day as the mortgage, in the penal sum of $5,000, conditioned for the payment of $2,500 in fifteen years from the date thereof, with interest to be paid annually. The complaint asks for á judgment of foreclosure and sale, and that Fletcher B. Story be adjudged to pay any deficiency which may remain after applying the proceeds of the sale of the mortgaged premises to the payment of the amount due on the said bond and mortgage, and the costs and expenses of this action, with interest thereon to the date of such payment. Jacob W. Story died in 1892, and no relief is asked against him. Prior to the commencement of the action the bond and mortgage were assigned to the plaintiff. The answer of Fletcher B. Story, one of the defendants herein, alleges that subsequent to the death of John Hill, in the year 1874, he made an arrangement with Truman Sanford, who was one of the administrators of the estate of John Hill, deceased, by which it was agreed that, if Fletcher B. Story would convey the mortgaged premises to his (Story’s) father and mother, he (Sanford) would release him from all obligation on the bond; that, in pursuance of this agreement, s.aid Story did convey said premises to his father and mother, who assumed the payment of the bond and mortgage in question. The testimony of defendant Story and his wife is to the effect that Sanford agreed to accept thé father and mother of Story, and to release Fletcher B. Story. On the argument, it was admitted by counsel for the plaintiff that, if the testimony of Mrs. Story in regard to the agreement between Truman Sanford and Fletcher B. Story to release the latter from, the bond were true, a good defense would have been established if the agreement had been made with the mortgagee while living, and would be a good defense in this action if an administrator can bind the .estate of a deceased person by a contract of this kind. No written release was ever made or asked for. The only evidence of what the arrangement was between Fletcher B. Storyi and Truman Sanford is found in the testimony of Fletcher BJ Story and Elizabeth A. Story, his wife. Truman Sanford, with' whom this arrangement- was made, was adjudged a lunatic just-before the trial of this action was begun. The plaintiff is the wife of Truman Sanford, and was co-administrator with him of the estate of John Hill, her father. The plaintiff was not-present at the time the alleged agreement was made. John Hill died in 1873, and the alleged agreement was made in March, 1874, at the house of Fletcher B. Story.

On the part of the plaintiff, it is claimed that the testimony of Fletcher B. Story and his wife is insufficient to establish the claim of one of them against the estate of a deceased person, or to prove-a contract made with an administrator who has since become a lunatic. Fletcher B. Story is directly interested in the result of this action, and his wife is almost as much interested in her husband’s success. The effect of their testimony, if held sufficient, is to destroy the force and effect of a written instrument under seal. A number of cases are cited by plaintiff bearing upon this-point: Morgan v. Freeborn, 68 Hun, 296; 52 St. Rep. 107; Forbes v. Chichester, 30 St. Rep. 370; Van Slooten v. Wheeler, 140 N. Y. 624; Rowland v. Howard, 75 Hun, 1; 56 St. Rep. 722; In re Farian’s Accounting, 31 Abb. N. C. 159. The rule seems to be .established that claims of this kind must be clearly and satisfactorily made out.

If there were no other evidence with which to establish -the defense set up in the answer, besides the testimony of Fletcher B. Story and his wife, the defendant could not be said to have made out his case in a clear and satisfactory manner. But, more than twentv years after this alleged contract bad been made, defendant and his wife went out to see the plaintiff in regard to the release. They told her of the contract between her husband and Fletcher B. Story, and that they had heard she was about to foreclose the mortgage and hold Mr. Story liable on his bond for the deficiency. They then asked her for a written release. At some period during the conversation, Truman Sanford came in the house where they all were. What was said by Mr. Sanford is-not in evidence. The Storys remained at Mrs. Sanford’s house-for several hours. The testimony of the Storys and of the plaintiff as to what was said on this occasion differs in several particulars, but it clearly appears that Mrs. Sanford did not deny that an arrangement had been made with Truman Sanford for the release of Fletcher B. Story from the bond. It is true that Mrs-Sanford says that she knew nothing about the release until that day, but her husband was in the house nearly all the while Mr. and Mrs. Story were there, and could easily have satisfied her as-to whether their statements were true. Truman Sanford was in apparent good health at this time. At least, there is no evidence-to show that he was not of sound mind and memory. ' The only reason Mrs. Sanford gave why she would not execute a written release was that her son John attended to her business, and that ■he was not at home. The silence of the plaintiff at this time,, ^vhen she ought to have spoken, and to have informed herself if she had any doubt, is a significant circumstance, and strongly corroborates the testimony of Fletcher B. Story and his wife in regard to the contract of release. The two latter both say that Mrs. Sanford told them that Mr. Story could have had a release-at that time, if he had asked for it. Mrs. Sanford says that she-does not remember of using those words, and does not think she did. If her husband had told her on that day, or at some other time, that such an agreement had been made, it is quite likely she-would have used these words. If he had not so informed her,, her denial would have been much stronger than it is in her testimony. On the other hand, if Truman Sanford had informed his wife that he had made no arrangement to release Fletcher B. Story, she would certainly have told the Storys so. It is difficult to believe that Mrs. Sanford did not, on that occasion, learn of her husband what he had to say about the contract of release. TheStorys would hardly have gone to plaintiff’s house with a lie in their mouths, if they could have been so easily refuted by Mr. Sanford. This also shows candor and good faith in the claim-which they allege. Counsel for the plaintiff says that it is not probable that Mr. Sanford would have agreed to release Mr. Story, and to take his mother as security for the amount of the-bond.- The situation, however, is vastly different now from what it was at the time this contract was made. In 1874 the land covered by the mortgage was worth about $4,000. In 1887, when the mortgage came due, the land was worth about $3,000, and the mortgage had been reduced to $2,050. Two years before the mortgage came due, Amos Story, brother of Fletcher, offered to-pay the Sanfords the whole amount of the mortgage, and they refused to take it. At the present time it is supposed that the land will not bring enough in market "to pay the amount due and costs. I shall therefore hold that the evidence upon the subject of the release is sufficiently strong to clearly and satisfactorily establish a contract to release, as testified to by Mrs. Story.

The testimony of Mr. and Mrs. Story is criticised by plaintiffs counsel. The fact that they do not satisfactorily explain why the deed made by them to the parents of Fletcher B. Story is dated on one day, and the acknowledgment not made until about two weeks afterwards, is immaterial'in this case. The conflict between their testimony and that of Mr. G-allt as to the number of interviews had "with him, and what was said on those occasions, is also immaterial. Possibly, their memory is not of the best, but I see no evidence of a willfully wrong statement upon a material question.

It is claimed by counsel for the plaintiff that the contract made between Fletcher B. Story and Truman Sanford for the release of the former from his bond is an executory one, and that such contract, made by an administrator, cannot bind the estate of a deceased person. The following adjudged cases are cited upon this point: Hall v. Richardson, 22 Hun, 444; In re Kirkpatrick’s Estate, 9 Misc. Rep. 231; 61 St. Rep. 295; Austin v. Munro, 47 N. Y. 360, 366; Schmittler v. Simon, 101 N. Y. 554. It seems to be well established that an executor or administrator has no power to bind the estate represented by him through an executory contract having for its object the creation of a new liability, hot founded upon the contract or obligation of the testator or intestate. It is to be observed, however, that the cases cited relate to pecuniary obligations created or assumed by an executor or administrator, not growing out of any contract or obligation of the testator or intestate. But executors and administrators have certain authority and power over the property of the estate vested in them, and all acts done by one of them within the scope of this authority is binding on his associates. Thus, it is stated in Wheeler v. Wheeler, 9 Cow. 34, that acts done by one executor which relate “to the delivery, gift, sale, or release of the testator’s goods are deemed the acts of all.” Barry v. Lambert, 98 N. Y. 300, was an action to enforce a trust which had been created by the executors, and not growing out of any acts or obligations of the testator. The contract was held enforceable against the estate. The court says (page 308) one executor “may release or pay a debt, assent to a legacy, surrender a term, or make an attornment, "without the consent or sanction of the others; ” again, (on page 309), “But having the original power to transfer the property "of the-estate for the purposes of their trust, anv«act, whether performed by one or all, which has this effect, is within their authority, and binds the estate.” Bostwick v. Beach, 103 N. Y. 414; 3 St. Rep. 659, was an action to compel executors to execute a deed of real estate, for the sale of which they had made an executory contract of sale. The court says on page 421, 103 N. Y.; 3 St. Rep. 659:

“We entertain no doubt that where the executors of the will of a deceased person, empowered by the terms of the will to sell his real estate, enter into an executory contract for such sale, performance of such Contract may be enforced in equity, at the suit of the purchaser.”

If an executor may he compelled to convey real estate which he has agreed by an executory contract to sell by virtue of a power of sale contained in a will, it is difficult to see why an executor or administrator may not be compelled to perform an executory contract to sell personal property, or release a debt,—power of sale and of release being given to him by law. Accordingly, in Johnson v. Wallis, 41 Hun, 420; 3 St. Rep. 140, it was held that executors who had made an executory contract to assign a judgment belonging to the estate could be compelled to perform the contract. The court says:

“That an executor in some cases may bind the trust is settled. As the executor is the legal owner of the property, and his duty is to sell and convert it, I think his executory contract, if not improvident, will bind the estate.”

The decision in this case was affirmed in the court of appeals. 112 N. Y. 230; 20 St. Rep. 567. On page 233, 112 N. Y.; 20 St. Rep. 567, Judge Finsh, who wrote the opinion, says:

“In this case, therefore, the defendants were owners of the judgment, and could lawfully contract for its sale. Having done so, they were liable upon that contract, which could be enforced against them, because they made it, and it did not derive its existence from any act or dealing of their testator. We agree, therefore, with the courts below, that the action could be maintained.”

We shall hold that an action to compel the specific performance of an executory contract, made by an executor or administrator, to release a debt, can be maintained.1

In this case the defendant claims that his defense is based, not upon an executory, but upon an executed, contract. He does not ask that the plaintiff execute a written release of Ms obligation on the bond. He claims that the acts done and performed by him under the contract between him and Truman Sanford' constitute a complete contract, and is a perfect defense to a claim for his personal liability on the bond in suit; that, while a written release would be evidence of the performance of the contract, yet the facts proved by parol are equally available as a defense. It seems to me this point is weighty and important. I do not care now to discuss this point, but will hold with the defendant in his conclusion.

The defendant Fletcher B. Story makes a further defense to the claim of his liability on the bond. He claims that, subsequent to the conveyance of the mortgaged premises by him to his father, ;and mother, the defendant Amos Story, brother of Fletcher, and who acquired his mother’s interest in said premises, made an agreement with Truman Sanford, executor as aforesaid, on behalf of himself and his father, that the rate of interest on the bond and mortgage in question should be reduced from six per cent, to four; that pursuant to such agreement the payment of said bond and mortgage was extended from year to year; that, in each year since 1886, interest on said bond has been paid at the rate of four per cent.; that the value of the mortgaged premises at the time of the maturity of the mortgage was $3,000, and has since depreciated, until, at the time of the commencement of this action, it would not sell for more than $1,500. Defendant Fletcher B. Story claims that this change in the rate of interest is a material alteration of the bond, and that he was thereby released. It is admitted that, subsequent to the conveyance of-the mortgaged premises to his father and mother, Fletcher B. Story became a mere surety on the bond. Paine v. Jones, 76 N. Y. 274. It is also admitted that if a valid contract was made, reducing the rate of interest from six per cent, to four per cent., without the consent of the surety, it was such an alteration of the bond as would release him from all obligation to pay the amount secured by the bond, or any part thereof. Bank v. Webster, 1 N. Y. Law Bul. 70. A contract which will discharge the surety must be founded upon a consideration. An agreement without a consideration in it could not be enforced, and would not discharge the surety. Reynolds v. Ward, 5 Wend. 502. A mere acceptance of four per cent., although the holder of the mortgage says that the rate shall not be more than four per cent., does not release the surety. The only witness upon this part of the defense was Amos Story. He says that, a year or two before the mortgage became due, he had a conversation with Mr. and Mrs. Sanford in relation to the rate of interest upon the.bond and mortgage in question. His testimony is substantially as follows:

“I asked Mr. and Mrs. Sanford if they would take the money on the Hill bond and mortgage. Truman said it was not according to contract, it was not due, and he would not accept it. I said that he ought to let me have it, because I could get a lower rate of interest (four per cent.) of Thompson King. They said I could have it at that. Then I asked for a writing at four per cent., the same as Mr. King had offered. Truman said, ‘Let it be as it is, without a writing.’ ”

The witness stated that he had seen Mr. King, and he had promised to let him have the money at four per cent. After this time interest was paid at the rate of four per cent. ^ So far as this contract has been executed, it is undoubtedly binding, or at least may be made so; but if it is without consideration, so far as lt^is unexecuted, it is void, and the mortgagee could repudiate it. McKenzie v. Harrison, 129 N. Y. 260; 30 St. Rep. 934. Defendant claims that there is a consideration espressed in it: Firstly, Amos Story hound himself to pay the interest. But I fail to find any such agreement in the contract. It would he doubtful whether Amos Story could bind himself to pay the debt of a third person, without an agreement in writing subscribed by him. Secondly, it is said Amos Story deprived himself of the right to borrow the money of Mr. King. But I find no provision in the arrangement made which deprived the Storys of the right of borrowing the money of Mr. King, or of any other person, at any time. Thirdly, it is claimed that the time for the payment of the bond and mortgage was extended by this agreement. 'Nothing was said in the conversation about extending the time of payment; and I find nothing which would deprive the Storys from paying the bond and mortgage when they became due, or upon giving the notice stipulated in the instrument. For these reasons I disallow the defense which is based upon the reduction of the rate of interest from six per cent, to four.

The complaint is dismissed as against Fletcher B. Story, and judgment of foreclosure and sale is directed against the remaining parties defendant.

Ordered accordingly.


author: O’DWYER, J.

text:
    John B. Jackson, Resp't, v. Emile Bruner et al., App'lts.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    1. Default—Infancy.
    Section 1218 of the Code applies to a case where the infancy is admitted and a judgment may be entered against the infant' defendant.
    2. Same.
    If infancy is not pleaded, a judgment against the infant will bo binding on him.
    3. Same.
    Where a defendant, though an infant, is in default for want of an answer, and the judgment is properly taken and is neither defective nor irregular, it is within the discretion of the court to impose terms as a condition for opening- the default.
    Appeal from that part of an order, vacating' a judgment which imposed terms upon the defendant, Emile Brunor.
    Eugene Cohn, for app’lt; Lyman Rindskopf, for resp’t.
   O’DWYER, J.

Appeal from part of an order upon a motion to vacate a judgment. This action was commenced by the personal service of the summons and complaint herein upon both of the defendants herein, who are father and son, in the month of September, 1894. Thereafter the father called upon the plaintiff’s attorney, and admitted the claim, and agreed to pay the same in monthly installments of $15 each, and did, on the 18th day of September and the 12th day of October, 1894, pay, on account thereof, the sum of $30, and received receipts therefor in behalf of the defendants. No other payments being made, judgment was entered by default on the 5th day of July, 1895, in favor of plaintiff, and against the defendants, for the balance due. On the 17th day of July, 1895, on application made therefor, an order to show cause why said judgment should not be vacated and set aside, and why the defendant Emile Brunor should not have such other and further relief as may be just, was obtained, and the motion argued and granted upon terms. But, before the entry of the order on that decision, an order to show cause was granted, requiring the plaintiff to show cause why a re-argument should not be had; and, on the return thereof, the motion for a re-argument was denied, and an order entered denying the motion for a re-argument, and opening the default, vacating the judgment, and granting defendants leave to plead, upon terms; and this appeal is taken by the defendant Emile Brunor from so much of the order as denies the motion for a re-argument, and imposes terms as a condition for the opening of the default. On the motion, the appellant, in his affidavit, stated that he was bom April 26,1876, and, at the time the debt sued on was contracted, he was, and still is, an infant, under the age of twenty-one years. It nowhere appears that the plaintiff or his attorney was notified of the alleged infancy of the defendant, .except by the affidavit of the defendant Martin Brunor, who claims to have notified the plaintiff’s attorney of that fact; but that statement is denied, and the infancy of the defendant is not admitted by the plaintiff.

It is insisted by counsel for the appellant that by reason of the statements contained in the moving affidavits as to the infancy of the appellant, and not denied in the opposing papers, the motion should have been granted, as matter of right, inasmuch as section 1218 of the Code of Civil Procedure provides that a judgment by default shall not be taken against an infant defendant until twenty days have expired since the appointment of a guardian ad litem for him, and this section is made applicable to this court by section 3347, subdivisions 4 and 8. I do not agree with the appellant in his contention. The section of the Code cited applies to a case where the infancy is admitted^ and a judgment may be entered against an infant defendant. In the case at bar the plaintiff cannot be bound by the statements contained in the moving papers. All that can be claimed for them is that, if pleaded as a defense, they will raise an issue to be determined on the trial. Infancy is a personal privilege, and can be waived; and, if not pleaded, a judgment against an infant would be binding on Mm. The defendants were in default for want of an answer, and the judgment was properly taken; and, being neither defective nor irregular, it was within the discretion of the court to impose terms as a condition of opening the default.

Order affirmed, with costs.

All concur.