text:
    In the Matter of the Judicial Settlement of the Accounts of Henry Heuser, as Administrator of Magdalena Heuser, Deceased.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Executors — Accountius.
    Upon the accounting by an administrator, the account and the objections thereto represent the pleadings, from which the issues to be tried must be determined.
    Appeal from a decree, settling the accounts of an administrator, and from an order denying a motion for a new trial.

      Leonard Bronner, for app’lt administrator; Porte V. Ransom,, for resp’t special guardian; Marshall B. Clarice, for resp’t Kittie K. Heywood.
   O’Brien, J.

Magdalena Heuser died, intestate, on the 23d of October, 1885, leaving, her surviving, her husband, the present administrator, and four children, three of whom were minors. In February, 1893, the administrator filed his petition for a voluntary-accounting with his account and vouchers, from which it appeared that the deceased was possessed at the time of her death of the sum of $3,000, which was then on deposit in the Herman Savings Bank, with which sum, together with $368.78, interest thereon, the administrator charged himself, and as against such amount credited himself with the sum of $1,501.65, which he claimed to have paid out for funeral expenses and other disbursements in -connection with his administration, leaving the sum of $1,867.18 to‘be distributed by the administrator among those entitled thereto, subject to the deduction of commissions and the expenses of the accounting. The special guardian filed objections to the account, which related solely and exclusively to items and matters set forth and contained in such account. On the 81st of May, 1898, the hearing upon the objections came on before the surrogate, and, the special guardian having expressed a wish to examine the administrator as to the objections filed, what followed is thus set forth in the record. Addressing the surrogate, the special guardian said : “I should like to examine the administrator. The Surrogate: With reference to the fourth objection ? The Special Guardian : Yes, sir.’’ The administrator was then placed upon the stand, and examined at length as to when he became acquainted with the deceased, the date of his marriage with her, and his relations to the business which at the time of the marriage was being carried on by the deceased. From such testimony it appeared that the administrator became acquainted with the deceased some time in June, 1874, and married her on the 20th of March, 1878; that during that time, and up to about May 1, 1879, she was engaged in carrying on the liquor business at No. 802 East Thirty-Fourth street, when she moved to No. 321 East Thirty-Fourth street, and there she remained continuing the liquor business until October 24,1879, "when she sold her business for the sum of $275 in cash. On October 14, 1879, purchase was made of a saloon and boarding house at No. 905 Third avenue, for the sum of $500, of which $300 was paid in cash, and a purchase-money mortgage for the balance of $200 was advanced by the brewer; and this business was continued down to the death of the wife, and subsequent thereto, until the 31st of August, 1889. The money was paid by the husband, and the title taken in his name; but whether this business was owned by the administrator personally, or was conducted in his name as agent for the wife, was a question which, upon the testimonjq the special guardian insisted should be resolved in the wife’s favor; and in this the learned surrogate agreed, charging .the administrator with the income from the Third avenue saloon at the rate of $25 a month from October 23, 1885, the date of the death of Magdalena Heuser, to February 3, 1893, the date of the filing of the account, together with the value of the fixtures, good will, and stock and license of the saloon. The hearing before the surrogate was commenced and completed on May 31,1883 ; and, while findings were proposed" in July of that year, the entry of a decree was adjourned over from time to time, and as entered bears date November 14, 1894. Feeling aggrieved at the conclusion reached as to the ownership of the Third avenue business and prior to the making of any order or decree by the surrogate, the administrator applied for a new trial on the ground of newly-discovered evidence and surprise, which was denied; and it is from the decree and the order denying a new trial that this appeal is taken.

It has been held many times in these proceedings that the account filed and the objections thereto represent the pleadings of the parties, and that the issues to be tried are to be determined therefrom. The procedure adopted and the result here show, we-think, the wisdom of adhering to the rule. Though no objection was filed to the account claiming that the administrator should be charged with anything more than the amount left by the deceased, and which was on deposit in the savings bank, he was examined at the request of the special guardian, not as to matters connected with the objections filed, but in regard to his relation to the business carried on by him or his wife, or both of them jointly; and, without any notice or intimation that such a claim would be made, he was held liable to account for the profits, good-will, stock, and fixtures of the Third avenue business. We think the administrator was entitled to some notice that such a claim woud be advanced upon his accounting, -and the orderly way of doing this would have been to file a proper objection. Without this being done, however, the administrator, as stated, was examined at length in regard to his business for many years back. That he 'did not. know the purpose of the inquiry, and was not prepared to maintain his claim to the ownership of the business, appears from the record, wherein, in respect to transactions which took place some years prior to the date of the examination, he gave answer which were not only inconsistent, but at times not intelligible ; and the reason for this, in addition to the lapse of time, is shown by the affidavits presented upon the motion for a new trial, from which it appears that the administrator is somewhat deaf, not overintelligent, and failed to apprehend the meaning of many of the questions put to him. It was also shown upon such motion that written documents connected with the purchase of the Third avenue store were in the possession of the administrator, which, had he been in any way appraised of the claim to be made, he could have produced, and which would seemingly have a tendency to establish the claim advanced by him upon the motion that he was able to prove that the Third avenue business belonged to him indiuidvally, and not to the deceased. We think that the situation was one which required that the discretion vested in the surrogate to grant a rehearing should have been exercised in favor of the administrator. Were it not for the conclusion reached that the administrator had appropriated and failed to account for property belonging to the deceased, there-would be no valid reason for depriving him of his commissions and charging him personally with the expenses of the accounting, which in connection with the other terms of the decree, bore most rigorously against the administrator. It may be that the same conclusion will be reached after a thorough and proper examination has been had ; but we think that the interest of justice and of the proper and orderly procedure which should be observed require that those opposed should file proper objections, and then the administrator should be permitted, if he can, to sustain his claim. So much of the decree, therefore, as charges the administrator with the net income, good will, etc., of the Third avenue business; and the order denying a rehearing on that question should be reversed, without costs upon this appeal, and leaving all questions as to costs and allowances to be awarded and the commissions of the administrator for the consideration and determination of the surrogate upon the retrial hereby ordered.

All concur.


source: Caselaw Access Project

author: Follett, J

license: Public Domain

text:
    The People, Pl'ff, v. American Steam-boiler Insurance Company of New York City, Def’t.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Insurance — Casualty—Dissolution.
    The receiver of a solvent insurance company, which has been declared dissolved because it has discontinued its business, is entitled to the interest collected by the superintendent of insurance on the securities deposited.
    Appeal from an order requiring the superintendent of insurance to pay certain moneys to the receiver.
    • Charles W. Francis, for appl’t; J. C. O' Connor, for the People.
   Follett, J

The American Steam-Boiler Insurance Company was incorporated, pursuant to chapter 463, Laws 1853, with an authorized and paid-up capital of $200,000. By the sixth section of this statute, as amended by chaptei 551, Laws 1853, insurance corporations were required to deposit with the comptroller of this state securities of a certain value to be held by him, pursuant to this provision of said section :

“ The comptroller shall hold such stocks or securities as security for policy holders in said companies; but so long as any company so depositing shall continue solvent, may permit such company to collect the interest or dividends on its stocks or securities so deposited, and, from time to time, to withdraw any of such securities, on depositing with the comptroller other securities of like character, the market value of which shall be at the time of such deposit at or above par.”

By chapter 366, Laws 1859,the insurance department was created and the securities deposited with the comptroller were transferred to the department of insurance, and thereafter all securities were required to be deposited with that deparment. November 5,1883, the American Steam-Boiler Insurance Company deposited with the insurance department, pursuant to said section, United States four and one-half per cent, registered bonds of the par value of $100,-000, which were subsequently withdrawn, and consolidated three per cent, stock or dock bonds of the city of New York (the interest on which is payable on May 1st and November 1st in each year) were substituted in the place of the bonds of the United States so withdrawn. By section 2 of chapter 517, Laws 1888, it was provided:

“Sec. 2. The stock and securities so deposited may be exchanged from time to time for other securities, receivable as aforesaid, and so long as the company so depositing shall continue solvent and comply with the laws of this state, it may be permitted by the said superintendent to collect the interest or dividends on said deposit”

In 1892 the statutes relating to insurance were revised and consolidated by chapter 690, and by section 14 of this act it is provided:

. “Sec. 14. Exchange of securities; interest. — The stocks and securities deposited with the superintendent of insurance, pursuant ' to the provisions of this chapter, or heretofore deposited with him may be exchanged from time to time for other securities receivable as provided in this chapter, and so long as the corporation depositing the securities shall continue solvent, and comply with the laws of the state, it shall be permitted by the superintendent to collect the interest or dividends on such deposits.”

November 6, 1893, an action was begun in this court to dissolve the corporation, pursuant to the third subdivision of section 1785 of the Code of Civil Procedure.

“Sec. 1785. In either of the following cases, an action to procure a judgment, dissolving a corporation, created by "or under the laws of the state, and forfeiting its corporate rights, privileges, and franchises, may be maintained, as prescribed in the next section: "* * * 3. Where it has suspended its ordinary and lawful business for at least one year.

On the 21st of November, 1893, a final judgment was entered in the action, dissolving the corporation, under which Henry S. Ward was appointed permanent receiver of the corporation and of its assets. The receiver gave a bond, which was duly approved, and since that time he has been engaged in the discharge of his duties. The 1st day of May, 1894, the insurance department collected $1,500, — the interest due on that date on said bonds, — and thereafter the receiver duly demanded the payment of said sum to him, which was refused, and in June, 1894, he applied at a special term of this court for an order requiring the department to pay over said sum. The motion was denied, but on appeal the order was reversed by this court, and leave granted to make a new motion. 81 Hun, 498; 63 St. Rep. 478. In the meantime $1,500, —the interest due on said bonds November 1, 1894, — fell due, which the department also collected. This sum was duly demanded by the receiver, and upon refusal a motion was made for an order requiring the department to pay to the receiver said two sums, amounting to $3,000, which was granted, and the department appealed.

By the record it appears that the American Steam-Boiler Insurance Company is not insolvent, but has sufficient assets to pay all of its liabilities, and besides, a considerable dividend to its shareholders. The corporation was not dissolved because it was insolvent, but because it chose to discontinue its business. These facts are not disputed. It is clear that the department has no right to collect and hold the interest on the ground that the corporation is insolvent, for it is conceded that it is not; nor can the department retain the interest on the ground that the corporation has failed to comply with the laws of the state, because it is not alleged that it has failed to comply with the laws in any respect. The statutes authorize such a corporation voluntarily to discontinue business and wind up its affairs, and we see no ground on which the department has the right to retain the interest collected on the bonds. It is not alleged that the receiver has been guilty of any misconduct, or that he has not discharged his duties pursuant to the statutes of the state and the rules of the court. By section 76 of chapter 690, Laws 1892, it is provided that, in case an insurance corporation shall be adjudged to be insolvent, anda receiver shall be appointed, he “shall take possession of all of such assets and credits, including the securities deposited in the insurance department.” The next section provides that the court may order the securities held by the department to be converted into the money, and the proceeds paid by the department to the receiver. It cannot be that the legislature intended that the securities of insolvent corporations should be turned over to receivers, or the avails thereof, pursuant to an order of the court, and that the court should not have power to direct that the income arising from securities should be paid over to the receiver of a solvent corporation for the purpose of winding up its affairs. The reasons given for the judgment rendered when this case was first before this court are sufficient and satisfactory, and further discussion seems unnecessary.

The order should be affirmed, with ten dollars costs, and disbursements.

O’Brien, J., concurs; Van Brunt, P. J., dissents.


author: Dykman, J.

text:
    William H. Burroughs, App’lt, v. Trademen’s National Bank of the City of New York, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Bank — Failure to pay check — Damages. .
    A bank which fails to pay a depositor’s check when presented, but does so five days later, is liable for nominal damages only for technical breach of an implied contract, where no actual damges has been suffered.
    Appeal from a judgment in favor of defendant.

      McGuire & Low, for app’lt; Stern & Rushmore, for resp’t.
   Dykman, J.

This suit is brought to recover damages for the failure of the bank to pay, on presentation, a check drawn by the plaintiff against his account kept with it. There is no charge in the complaint of any willful or wrongful act on the part of the defendant, and there is no allegation of special damages. The plaintiff is therefore confined to the recovery of such damages as the proof shows were sustained.

The contract which the law implies between a bank and its depositor is that the bank will hold the funds, and pay them out according to the order of the depositor. A failure in the performance of the duty which the law thus imposes upon the bank constitutes a breach of the contract which the law implies, and renders the bank legally liable either in tort or upon contract. Citizens' Nat. Bank v. Importers' & Traders' Bank, 119 N. Y. 199 ; 29 St. Rep. 1. In this case the check of the plaintiff was dated October 15, 1891, and it is to be gathered from the testimony, although not stated explicitly, that it was presented to the bank for payment the same day.

The check was not honored at that time, but on the 20th day of the same month — five days afterwards — the error was discovered and the check was paid. At the close of the testimony on the part of the plaintiff, the counsel for the defendant moved for a dismissal of the complaint, upon the ground, among others, that the action was based upon the contract and not upon a tort, that there was no allegation of special damages, and no charge of willful or malicious injury, and that the plaintiff had failed to establish a cause of action. The motion to dismiss was denied, and the trial judge directed a verdict in favor of the plaintiff for thirty-four cents, the interest upon the check for five days.

The denial of the motion to dismiss the complaint was not erroneous. This must be deemed an action for the recovery of damages for a breach of the implied contract on the part of the bank to pay out the money of the plaintiff according to his order. There was a technical breach of the contract, and for that the plaintiff is entitled to a recovery. IE the bank had not paid the money, the measure of damages would be the amount of the cheek. Inasmuch, however, as the check was paid by the bank, the plaintiff sustained no actual damage. He did not lose the interest upon the money called for by the check. If any one lost the use of that money, it was the payee of the check. The bank was under no obligation to pay interest to the plaintiff, and he never made any effort to draw the money for his own use. The verdict was therefore excessive, but it cannot be disturbed, because the defendant has not appealed. As the check was not paid, the plaintiff was entitled to recover nominal damages, although he had sustained none. Citizens’ Nat. Bank v. Importers’ & Traders' Bank, 119 N. Y. 202; 29 St. Rep. 1. This case, and the cases to which reference is made, teach us that the plaintiff, under the facts in this case, is entitled to nominal damages only, and he is entitled to that simply because there was a technical breach of the implied contract. The judgment should be affirmed; with costs.


text:
    Valentine Cornwell, App’lt, v. Charles H. Clement, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Pleading — Deed— Champterty.
    An allegation that certain persons conveyed land of which they then were the owners, but not in possession, is not equivalent to an averment that such land was in the possession of a third person under adverse claim o£ title.
    2. Deed — Champertous.
    A grantee cannot accept the benefit of a deed and at the same time claim that it is champertous.
    3. Same.-
    As between the grantor and grantee, a champertous deed is valid.
    Appeal from an interlocutory judgment, sustaining a demurer to the complaint.

      E. F. & E. G. Bullard, for app’lt; H. A. Monfort, for resp’t.
   Dykman, J.

This is an appeal by the plaintiff from a judgment sustaining a demurrer to the complaint in the action, with leave to amend the same on payment of costs. The cdmplaint alleges that on the 22d day of July, 1878, the heirs of John Cornwell, deceased, of whom the plaintiff was one, were the owners of certain lands in this state, but that none of the heirs were then in the actual possession of such premises, and the same were claimed by third parties adverse to such heirs. That, on or about the day named, an agreement was made between such heirs and the defendant, whereby it was agreed that the heirs should convey the undivided half of the premises to the defendant, and in consideration thereof he would institute all proper suits and proceedings at law or in equity to recover said real property, and that he would employ, at his own expense, attorneys for that purpose. That accordingly such conveyance was made by the heirs to the defendant, who accepted the same under the contract. That subsequently the defendant brought an action for the partition of the land, and fraudulently procured a part thereof to be sold for an inadequate price, and another part to be allotted to himself, which he subsequently sold for $2,500. The complaint then charges that the defendant became the trustee for the heirs in procuring a portion of the premises to be allotted to himself, and that he held the title to such portion charged with a trust for their benefit. That the sale thereof was made in fraud of their rights, but to a Iona fide purchaser. Then the complaint contains a statement of the number of the grantors in the deed to the defendant; that they all have a common interest with the plaintiff in the matters involved, and they are so numerous that it may be impracticable to bring them all before the court; and the plaintiff brings this action in his own name for the benefit of himself and all others of those grantors and their heirs who shall come in and pay their share of the expense of the action. For relief, the plaintiff, among other things, prays that the defendant may be compelled to account for all of his transactions under the contract with the heirs. The defendant demurred to the complaint on the ground that it failed to state a cause of action, and that there was a defect of parties.

In relation to the question of parties, it is sufficient to say that the suit is properly brought in the name of the plaintiff, under the latter part of section 448 of the Code of Civil Procedure.

" The next and chief contention of the defendant is that the complaint states no cause of action against him, because the deed which he received from the heirs of John Cornwell was void under the champerty act, since the premise described in the deed were held adversely at the time of its execution and delivery. The statute which the defendant invokes is this :

“Every grant of lands shall be absolutely void if at the time of the delivery thereof, such lands shall be the actual possession of a person claiming under a title adverse to that of the grantor.” 1 Rev. St. p. 739, § 147.

To render a deed void under that statute, the land which it grants must be in the actual possession of a person claiming under a title adverse to that of the grantor, and that indispensable fact does not appear from this complaint. It is not stated in„ the complaint that the premises were at the time of the delivery of the deed in the possession of any one, nor that any one claimed any 'title adverse to that of the grantors. It is simply stated that the premises were claimed by third parties adverse to the heirs. That statement may be true, and yet the claim of such third parties may may nbt be based upon a title adverse to that of the heirs. The statement is entirely insufficient to show that the premises were held adversely within this statute. Clarke v. Hughes, 13 Barb. 151. The language of this act is very significant, and must be strictly construed by reason of its severity. Under it the possession for a single day by a person claiming under a title adverse to that of the grantor, whether such possession be known or unknown, avoids a conveyance. Crary v. Goodman, 22 N. Y. 173. As the complaint will be deemed to state every resultant fact which by reasonable intendment can be inferred from the allegations which it contains, Zebley v. Trust Co., 139 N. Y. 467; 54 St. Rep. 721, it may be fairly implied from the complaint that the grantors in the deed owned the premises conveyed, and were entitled to the possession by reason of such ownership, but that they were claimed by third parties who were not in possession. At any rate, the defendant cannot claim that such third parties were in possession, because the complaint nowhere so states. It follows, therefore, that the deed to the defendant does not fall under the condemnation of the champerty act, and is not void. Moreover the deed was valid and operative, and conveyed the title as between the grantor and the defendant even though the premises were sold adversely within the meaning of the statute. It is only void as against those who have a right under the statute. Pepper v. Haight, 20 Barb. 439 ; Livingston v. Proseus, 2 Hill, 528 ; Van Eoesen v. Benham, 15 Wend. 164; Poor v. Horton, 15 Barb. 497. There was no difficulty in carrying out the arrangement made by the parties for the recovery of the land. The defendant could bring suits in the name of his grantors against those who held adversely, and in his own name against those who did not so hold. Howard v. Howard, 17 Barb. 665; Poor v. Horton, 15 Barb. 497.

It is the effort of the defendant to employ the statute to aid him in effectuating his purpose to perpetuate a fraud upon his grantors..' He has received a deed of conveyance which constituted him a tenant in common with his grantors. If that deed was void, he was not authorized to use it for his own benefit, and then set up its invalidity to enable him to retain the benefits he had derived from it, and thus cheat his grantors. He executed the contract and derived money from the sale of the land, and a portion of that money belongs in equity to his grantors. He cannot be permitted to receive money under his contract, and then refuse to account therefor to his cotenants because the arrangement under which he received the money was void in law. That would enable him to take advantage of his own wrong, which is abhorrent to equity. The statute invoked was not made for the defendant. It was a re-enactment of the common law for the protection and security of persons in actual possession of land, claiming the same under a specific title, to the end that such persons should not be disturbed and annoyed by the purchase of pretended titles. The defendant occupies no such position. He was not in possession of the land, and he made no claim to it, and his deed of conveyance was valid, and not void, as between him and his grantors. If it be necessary to the circumvention of the fraud which the defendant is endeavoring to practice upon his cotenants, he may be treated in equity as a trustee ex maleficio, and a trust may be impressed upon the property allotted to the defendant to subserve the purposes of justice. The procurement by the defendant of the allotment of a portion of the premises to himself was a palpable fraud upon his grantors. Obviously, therefore, the complaint contains allegations sufficient to enable the court to administer the relief which equity requires, and compel the defendant to account for the money he has received in the execution of the contract he made with his grantors. The judgment should be reversed, with costs, and the demurrer should be overruled, with costs, with leave to the defendant to answer on payment of all the costs in twenty days after the service of the order of reversal.


text:
    City of Brooklyn, Resp’t, v. Charles Franz, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Constitutional law — Due process.
    A provision of a city charter that buildings of a certain character may be removed, but not requiring notice to be given to the owner of the building, is unconstitutional.
    Appeal from a judgment in favor of plaintiff.

      John R. Kuhn, for app’lt; Albert G. McDonald, for resp’t.
   Dykman, J.

This proceeding was instituted in the city court of Brooklyn upon a petition for the removal of a frame building from the lot of the defendant in Kosciusko street, in that city. The charge against the defendant is that he has erected a frame structure within the fire limits of the city, in violation of the city charter. The statute upon which the prosecution is based is this:

“ The supreme court of the state of New York, the county court of the county of Kings and the city court of Brooklyn, shall, upon petition, respectively have power and jurisdiction to adjudge and decree that any store house, dwelling or other building that has or may hereafter become dangerous or insecure or any building erected or altered, or in course of erection, or alteration, in violation of the provisions of this title shall betaken down and removed, or repaired and supported in a proper manner. Any owner, agent, lessee or occupant of any building against which a decree shall be made as hereinbefore provided, who shall neglect, refuse or fail to comply with the terms of any such decree, shall be deemed guilty of contempt and be punished as now provided by law for the punishment of contempt.” Section 51, tit. 14, Brooklyn City Charter.

The foregoing statute assumes to confer upon certain courts the power to order the destruction or removal of any building which has or may become dangerous in violation of the city charter, and the objection raised against it is that it makes no provision for any notice to the owner of such building, or for any opportunity to be heard in the proceedings for the destruction of his property. We think the objection is well founded. The deprivation of property without due process of law is inhibited by both the federal and state constitutions. While the term “due process of law” may not be susceptible of a precise definition which will include all cases, yet it has ever been held to require an opportunity to be heard. Notice of some kind is essential, and, because there is no provision in this statute for a notice or an opportunity to be heard, it is violative of the constitutional provisions for the protection of property rights. Stuart v. Palmer, 74 N. Y. 190. The fact that notice was given to the defendant of the proceedings in this case is insufficient to meet the difficulty. To answer the requirements of the constitution, the statute itself must confer the right to a notice. We have not overlooked the fact that there are numerous statutes in this state which subject the owners of buildings, both public and private, to many limitations and requirements, and entail upon them additional expense. In crowded cities buildings cannot be constructed, within certain districts, of inflammable materials. Fire escapes are required, and water must be introduced upon each floor of certain houses. These are but examples, and under such statutory provisions the owner is entitled to no compensation for the increased expense to which he is subjected, and no provision is made for any notice or opportunity to be heard. The distinction is this : Such statutes only regulate the use of property, while the statute under review provides for and contemplates its destruction without compensation. The decree should be reversed, with costs.

All concur.


text:
    Mary A. Pidgeon, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Master and servant — Save place.
    The rule of law that a master most furnish to his servant a safe place for the performance of his duties, extends to the obligation of a railroad company to maintain its roadbed and track in a safe condition for use by its employes.
    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.

      Frederic A. Ward, for app’lt; William C. Beecher, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment entered upon a verdict in favor of the plaintiff for $5,000 and from an order denying a motion for a new trial upon the minutes of the court. The action is for the recovery of damages resulting from the death of the plaintiff’s intestate, which was caused by the negligence of the defendant. The plaintiff's intestate was in the employ of the defendant, and on the 19th day of March, 1893, he was in charge of a train of freight cars which was passing down the track of the defendant’s railroad from the North Shore freight yard at Long Island City. The tracks cross Borden avenue near the defendant’s yard, and at the point of crossing the tracks of the Long Island City and Newtown trolley road intersect the tracks of the defendant at right angles. The train in charge of the deceased was backing slowly down, and he was standing on the top of a car, directing the movements of the train. Before the train reached Borden avenue, it was switched over from the right-hand track to the left-hand track; and when it was passing over Borden avenue the end car, upon which the deseased was standing, ran off of the track, and collided with the signal tower, which fell upon the deceased and caused his death.. There was evidence tending to show that the track at the avenue crossing was out of order, and had been so for some time. It was described by the witnesses as a •soft, spongy place, -where the tracks settled as the frost came out •of the gound. The track would sink down when the ground was wet. One witness said the rail would sometimes work up and down two or three inches. It was the theory of the plaintiff that such condition of the track caused the car to leave the rail, and the neglect to repair the track and maintain it in a safe condition was the negligence charged against the defendant, and upon which the action was based. The case was fairly submitted to the jury by the trial judge, and we must now assume that the jury gave credit to the testimony introduced by the plaintiff, and adopted her theory in relation to the cause of the accident. The recitation we have made of the facts is sufficient to show that the verdict is amply supported by the evidence and the circumstances surrounding the accident. Such being the situation, the judgment is justified by the law applicable to the case. The obligation of the •master to use proper care and employ suitable skill to furnish a safe and suitable place for the performance of the duties of the servant has been asserted in so many cases and in such a variety of language, that a repetition of the rule, or a citation of authorities for its support, is entirely unnecessary. The verdict of the jury in favor of the plaintiff is a finding that the defendant has failed to discharge its obligation to the deceased, to furnish him a safe place for the performance of his duties. The rule of law extends to the obligation of a railroad company to maintain its roadbed and track in a safe condition for use by its employes. Hawley v. Railway Co., 82 N. Y. 370.

We have not overlooked the contention of the defendant’s counsel upon this appeal that the deceased was guilty of contributory negligence by reason of his knowledge of the condition of the railroad track at the place of the catastrophe. But, if we assume all that was said upon the subject, it fails to show knowledge in the deceased of the extent of the disorder of the track, or of the imminence of the danger therefrom. Moreover, the subject was fully discussed in the charge to the jury, and the question of such contributory negligence was fairly submitted to the jury. We detect no error in the record, and the judgment and order should be affirmed, with costs.

All concur.


text:
    James Finler et al., App’lts, v. John J. Leary, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Equity — Attorney and client.
    Where an undue advantage has been taken of the confidential relations . existing between attorney and client to the aggrandizement of the former, a proper case is presented for the interposition and scrutinization of a court of equity.
    Appeal from a judgment in favor of defendant.

      Hector M. Hitchings, for app’lts; John J. Leary, in pro. per.

   Dykman, J.

This is an action in equity to procure the nullification of certain settlements and agreements between the plaintiffs and the defendant, for the reason that they were unconscionable and unjust, and because they were unjustly extorted from the plaintiffs by the defendant. The action has for its object also the procurement of an accounting for money wrongfully withheld from the plaintiffs, by the defendant. The defendant is a lawyer, and he was the attorney and counsellor of the plaintiffs in the transactions specified in the complaint. In the view we take of the case, it will be unnecessary to make any detailed statement of the allegations in'the complaint, or of the proof made in its support upon the trial. The complaint was dismissed by the trial judge, and the plaintiffs have appealed from the judgment of dismissal. The transactions between the plaintiffs and the defendant related to dealings in real property, and the latter was the confidential adviser of the former in respect to all of them. The evidence in the case discloses a mode of advice, persuasion and coercion on the part of the defendant which tended in each instance to his benefit, and to the disadvantage and loss of the plaintiffs. It is impossible to escape the conclusion that an undue advantage was taken of the confidential relations existing between the defendant" and the plaintiffs to the aggrandizement of the former, and a proper case is thus presented for the interposition and scrutinization of a court of equity, which always scrutinizes closely all transactions between attorney and client, and all other parties occupying confidential relations; The law views all transactions between such parties with caution, and waits for evidence of their fairness. Any arrangement made by the advice of a fiduciary for bis benefit is inconsistent with his relation, and is impressed by the law with the presumption of invalidity. The correction of such abuses is a well-recognized head of equity jurisdiction, and .in this case the only remedy of the plaintiffs, and their only "method for the procurement of the relief which they seek, is by an appeal to a court of equity. The foregoing statements are justified by the following authorities: Ford v. Harrington, 16 N. Y. 285; State v. Phoenix Bank, 33 id. 25 ; Bain v. Brown, 56 id. 285. The evidence established a plain cause of action in favor of the plaintiffs for the relief demanded in their complaint, and the judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    Isabella Dougherty, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

      1. Witness — Physician—Waiver.
    The reasonable construction of section 836 of the Code is that the provisions are expressly waived upon the trial, if a proper stipulation to that effect is produced thereat, and entered upon the record, regardless of the time when the waiver was executed.
    2. Same — Public policy.
    A waiver of the provisions of section 836 of the Code in certain cases is not contrary to public policy.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      W. J. Powers, for app’lt; Arnoux, Ritch & Woodford, for resp’t.
   Dykman, J.

This is an action by the plaintiff as the beneficiary under two policies of insurance by the defendant upon the life of one Francis Farley. The cause was tried at the circuit before a jury, and a verdict was rendered in favor of the plaintiff. From the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the minutes of the court, the defendant has appealed to the general term of the court

Upon the trial the counsel for the defendant sought to prove by a physician who attended him at that time the condition of the health of the assured when the application for the second policy of insurance was made. The counsel for the plaintiff made objection to such testimony, and it was excluded by the trial judge-upon the ground that its admission would be against public policy. The counsel for the defendant excepted to the exclusin of the testimony, and that exception presents the first question for determination upon this appeal The question depends for its solution upon the interpretation of certain sections of the Code of Civil Procedure. Section 834 of that Code is this:

A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

Sections 833 and 835 contain similar prohibitions against ministers of religion and attorneys and counselors at law. Then follows section 836, which contains this language:

“ The last three sections apply to any examination of a person as a witness, unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of the patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and sueli facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or -examination by the personal representatives of the deceased patient. * * * ”

The application for the second policy contained this stipulation :

“ The provisions of section 834 of the Code of Civil Procedure of the state of New York, and of similar provisions in the laws of other states, are hereby waived , and it is expressly consented and stipulated that in any suit on the policy herein applied for any physician who has attended or may hereafter attend the assured may disclose any information acquired by him in any wise affecting the declarations and warranties herein made.”

It does not appear that the testimony sought from the physician would have disclosed confidential communications, or any facts which would tend to disgrace the memory of the patient, and the evidence was not excluded upon that ground. The waiver, therefor, was not inhibited by the exception from the right to waive the privilege contained in section 834 of the Code. The exclusion of the evidence must, therefore, be upheld, because the waiver was not made at the trial, or because the inclusion thereof in the application was against public policy. The statute imposed silence upon the physician for the protection of the patient. T„he legislature locked up the secret, atid gave the key to the patient. He can forego the privilege, and unlock the mouth of the doctor. The statute requires that to be done expressly upon the trial, but there is no method prescribed for the accomplishment of the object. If the patient be alive, an entry upon the record at the trial by his counsel would be sufficient. In case of his inability to attend the trial, a written stipulation, signed by him, and entered upon the record, would remove the prohibition. That being so, it must certainly be immaterial when the stipulation is signed. In this case it was signed long before the trial in anticipation of that event, and with the design of having it used thereat. It cannot be assumed that the insertion of the stipulation in the application was ■ an idle ceremony. It was important to the company, and entirely within the competence of the assured. The reasonable construction of the statute, therefore, is that the- provisions are expressly waived upon the trial if a proper stipulation to that effect be produced thereat, and entered upon the record, regardless of the time when the waiver was executed.

We are now to inquire whether the provision for a waiver is contrary to public policy. The phrase is comprehensive, and its limit of operation is undefined. It may be asserted, however, that no action, proceeding, or method falls within its range, except such ns affects the public. A mere private act does not concern the public, and therefore such an act can never be contrary to public policy. Before a statute or a contract can be declared void because it is in contravention of public policy, the objection to it must be based upon some distinct principle. The general public can have no interest in the execution of the statute in question. Its operation can be neither inj urious nor disadvantageous to the public, and it is not opposed to good morals. It simply prescribes a rule of evidence between party and party upon the trial of a cause. The secrecy imposed upon the physician by the statute is evidently for the benefit of the patient. His communications are privileged, but the public has no concern in their suppression. If he waives his privilege, it cannot be insisted upon to exclude the testimony. It has ever been held that parties may waive their legal rights, and make stipulations in legal proceedings which shall control their rights in the conduct of a litigation. In re New York L. & W. R. Co., 98 N, Y. 447. What possible interest can the public have in the exclusion of the evidence of a physician respecting the physical condition of a private individual, where the patient himself raises no objection to such disclosure ? The chief justice, who expressed the opinion of the supreme court of the United States in the case of Hunt v. Blackburn, 128 U. S. 470, laid down the following rule upon the subject under consideration here, although in that case the question had reference to the rela* tian of attorney and client:

“But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets; and, if the client has voluntarily waved the privilege, it cannot be insisted on to close the mouth of the attorney.”

This statute has been frequently under consideration before the court of appeals in this state, and it has ever received a broad and liberal construction, and been so applied as to permit no invasion of the rights and privileges of the persons for whose benefit it was enacted. Judge Andrews gave a very lucid exposition of the statute in his opinion in the case of Buffalo L. T. & S. D. Co. v. Knights Templar & M. M. A Ass’n, 126 N. Y. 454 ; 38 St. Rep. 247, and closed with these words :

“ The statute should have a broad and liberal construction to carry out its policy. By reasonable construction it excludes a physician from giving testimony, in a judicial proceeding in any form, whether by affidavit or oral examination, involving a disclosure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself.”.

So far as we can discover, every case in the court of appeals is in harmony with the views thus expressed. We are committed to the same doctrine by our decision in the case of Foley v. Royal Arcanum, 78 Hun, 222 ; 60 St. Rep. 221. Chief Justice Brown, in the opinion in that case, said:

“It was entirely competent for the parties to stipulate what evidence should be received as to any fact upon which the defendant’s liability was made conditional, and the legislature could not change or impair the obligation.”

These considerations lead to the conclusion that the judgment and order should be reversed, and a new trial granted, with costs to abide the event.


author: Cullen, J.

text:
    Marie J. Fitzmahoney, as Administratrix etc., App’lt, v. George Caulfield et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Evidence — Payment—Mortgage.
    The doctrine that the possession of a bond and mortgage by the mortgagor is presumptive evidence of their payment, can have no application to a case where they were in the possession of the mortgagee at the time of his death, and there is no claim that payment has been made since that time.
    3. Same — Declarations—Administrator.
    The declaration of an administrator before he became such, is not admissible against him.
    Appeal from a judgment dismissing the complaint.

      George Finch, for app’lt; Thos. O'Callaghan, Jr., for resp’ts.
   Cullen, J.

This is an appeal from a judgment of the special term in favor of the defendant. The action is to foreclose a mortgage ; the defense, payment. The bond and mortgage were found by the plaintiff in the papers of her intestate shortly after his decease, and before her appointment as administratrix. She called the defendant’s attention to the fact that she had found these obligations: The defendant, according to his testimony, responded that the bond and mortgages had been paid, and, if plaintiff examined her husband’s papers, she would find that to be the case, and that after this conversation the plaintiff brought the bond and mortgage, and delivered them to him. The plaintiff conceded the delivery of the bond and mortgage, but denied that she said that she had found they were paid. This is substantially all the evidence to support the plea of payment.

We think the judgment below erroneous. The doctrine that the possession of the bond and mortgage by the mortgagor is presumptive evidence of their payment can have no application to this case, for it is conceded that the bond and mortgage were in the possession of plaintiff’s intestate at the time of his death, and there is ho claim that payment has been made since that time. The defense of payment, therefore, rests solely on the act of the plaintiff in surreridering the mortgage, and her alleged admission that she had found, from her husband’s papers that it had been paid. Had the transaction between plaintiff and defendant occurred after the plaintiff had been appointed administratrix, it may be that it would either have operated as' a discharge of the mortgage, or constituted sufficient evidence to uphold the finding of payment. Church v. Howard, 79 N. Y. 415. Yet there is some doubt whether she could have bound the beneficiaries other than herself. 1 Phil. Ev. (Cowen & Hill) p. 482. But at the time of this transaction the plaintiff was a mere meddler with the assets of the deceased. She had no right to interfere with them, otherwise than to preserve them, and she might never acquire such right. The delivery of the bond and mortgage to the defendant was simply a tort on her part. Her admission made at that time was inadmissible as evidence. To make the admission of an executor or administrator competent evidence, it must be made in the performance of the administration of the estate. Church v. Howard, supra. The rule seems settled that the declaration of a trustee before he came into the trust, or of an executor before he "became such, is not admissible against him. 1 Phil. Ev. p. 483. If the widow alone was to receive the proceeds of a recovery in this action, it may be that she would be estopped from maintaining it, despite the fact that the settlement with defendant was made by her personally, and that she now sues in her representative capacity. But in this case there is not only the widow, but also a minor child, of plaintiff’s intestate. It is possible that, if there are no creditors, any equity against the widow arising out of her settlement with the defendant may be considered upon a new trial. This, however, we do not now pass upon. The judgment appealed from should be reversed, and a new trial ordered ; costs to abide event.


text:
    Otto Huber, App’lt, v. John George Grauer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Contract — Construction.
    "Where plaintiff sells defendant property and takes in part payment certain lots, under an agreement that defendant, at the expiration of the year, will purchase the lots at a specified price if plaintiff in the meantime fails to sell them at that price, and that, if plaintiff shall sell the lots within the year and not realize the specified price, defendant will pay the deficiency, plaintiff cannot, after the expiration of the year, sell the lots and hold the defendant for the deficiency.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Guggenheimer, Untermyer & Marshall, for pl’ff; M. L. Towns, for deft.
   Cullen, J.

This is an appeal from a nonsuit at circuit, the exception being directed to be heard in the first instance at the general term. The plaintiff sold defendant an interest in an ice company, and took in part payment a number of lots of land. By contemporaneous agreement the defendant agreed that at the expiration of a year he would repurchase the lots at a specified price, if the plaintiff meanwhile failed to dispose of them at that price. Shortly before the expiration of this contract it was extended by a further contract as follows:

“In consideration of the sum of one dollar to each in hand paid by the undersigned to each other, the receipt whereof is hereby acknowledged, it is hereby agreed that the terms, conditions, and stipulations contained in the within agreement are here extended for the space of one year from date, so far as the same relate to reconveying the lots therein referred to, and located at East New York, now the twenty-sixth ward of this city of Brooklyn, to the said John George Grauer (the party of the second part), mentioned in said agreement, by said Otto Huber (the party of the fir t part), mentioned in said agreement, ■ at the stipulated price of ($850) eight hundred and fifty dollars each lot. The same privileges are given the said Otto Huber, — that if he shall desire to sell the aforesaid (18) lots, or any of them, within one year from this date, and shall proceed to do so, and said lots do not bring the sum of ($850) eight hundred and fifty dollars each, that the said John George Grauer will make up and supply and pay over to the said Otto Huger all sums of money which shall constitute the deficiency ; that is to say, in case the said Otto Huber shall not receive in full the sum of $850 for each and every of said lots which he may sell within one year from date hereof, the said John George Grauer agrees to pay to said Otto Huber the difference between the sum or sums realized and the sum of $850 on each lot, together with five per cent, interest on the said stipulated price of the value of said (18) eighteen lots.”

As this second agreement was about to mature, several applications were made by the defendant for its extension. No extension for a definite period was agreed upon, but delay was given him. The defendant failed to take the lots, and on January 16? 1893, the lots were sold at auction, realizing a sum far below the stipulated price. This action is brought to recover the deficiency arising on the sale, and the complaint alleged that the delay in the sale was due to the application by the defendant for time.

That the time for the performance of the contract, though under seal, could, before breach, be extended by paroi, is clean Dodge v. Crandall, 30 N. Y. 294; Homer v. Insurance Co., 60 id„ 478. It is also clear that, if the sale was delayed or postponed at the request of the defendant, he could not complain that the lots were not sold within the prescribed time. Homer v. Insurance Co., supra. The dismissal of the complaint is not seen to have proceeded on a denial of either of these propositions. The trial court appears to have based its rulings on the ground that the sale had not been delayed at the application of the defendant but that such application related only to defendant’s agreement to repurchase. The contract in suit is most peculiar. The defendant was bound to repurchase the lots at the expiration of the year at the price named. The plaintiff, however, was not bound to wait any period to realize his money, for he could sell the lots at any time, and the defendant would be at once liable for the deficiency. But there is no provision in the contract authorizing a sale by the plaintiff on the defendant’s default in failing to purchase the lots, nor could such a sale be then had, for when defendant would be first in default, the time in which the plaintiff might sell under the contract would have expired. Under the contract the plaintiff had two methods in which to realize his money. At any time during the contract period he could sell, and charge defendant with the deficiency, or he could await the expiration of the contract period, then compel the defendant to specifically perform his agreement to purchase by a suit in equity, or sue at law for damages for his failure to so purchase. The proofs show that the plaintiff’s attorney did tender a deed, and that the defendant failed to pay for the lots. Had the complaint alleged this breach, the plaintiff would undoubtedly have made out his case, but the suit was brought solely on the covenant to pay the deficiency on a sale» We must therefore determine whether there was any evidence to show that the sale itself was deferred on the defendant’s application. If there was no request by defendant for delay, or an extension of the agreement till after the defendant’s default, there would be no estoppel against him as to time of sale, because at such time the plaintiff’s right to a sale had ceased, and he could no wise be prejudiced by the delay. But there is evidence to show that applications for extensions and forbearance were made prior to that time. The plaintiff testifies that before the expiration of the contract, and while it was within his power to make a sale, the defendant applied for an extension of the agreement for a year, which application was refused. That the defendant then said, “Well, if I can’t raise the money on the day of the sale, — on the day of the expiration of the contract, — will you force it upon me to be ready ?” The plaintiff answered, “Well, if it is necessary, I would not stand on a couple of weeks,’’ to which the defendant replied that he thought he could raise the money. The plaintiff also testified to having similar conversations subsequent to this, till he finally refused further delay, and notified defendant of the sale of the lots at auction. The witness Obernier, the plaintiff’s lawyer, seems to have labored under a misconstruction of the plaintiff’s rights 'under the contract, and to have thought that he could sell the lots after defendant’s default. The fact that he had this belief, and that he tendered a deed to defendant, may tend to disprove the claim that the sales were postponed at defendant’s request. Still Obernier testifies that at the times defendant ai> plied for extensions or delays the threat of a sale was made, and defendant asked for further time. We think that this evidence required the submission to the jury of the question whether the plaintiff was induced to refrain from making a sale during the contract time by the request of tbwdefendant, with the instruction that if they so found it would justify a verdict for the plaintiff. Exceptions sustained, and a new trial ordered; costs to abide event. All concur.


text:
    John C. Orr et al., App’lts, v. Charles Nagle et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Payment — Application—Mechanic’s lien.
    Where money, received by a contractor from the owner of a building, is paid to a material man who has filed a mechanic’s lien, and to whom the contractor is also indebted on another account, on which such money is applied, a subsequent lienor cannot have the payment applied on materials furnished to that building.
    Appeal from a judgment in favor of plaintiff for part of his claim.

      Cannon & Atwater, for app’lts; A. T. Payne, for resp’t Muller; S. B. & D. Noble, for resp’t Willert; Matthew Marx, for resp’t Marx ; Arthur M. Sanders, for resp’t Sherwood.
   Dykman, J.

This action is brought for the foreclosure of a mechanic’s lien. The defendants Nagle & Sons were contractors for the building of a house for the defendant Willert. The plaintiffs furnished materials to the contractors for the construction of the, same to Eagle & Sons, in the general account which they had against them for lumber furnished for this house and for other buildings. The plaintiffs filed a mechanic’s lien against the land and building of Willert for $725.28, the full amount of their claim, and the defendant Muller filed a second lien upon the same premises for $441. The amount due from the owner to the contractors was $1,031.36. The cause was tried before the county judge of Queens county and he found that the plaintiffs had furnished materials to the amount of $725.28 in value, but that $350 had been paid on account thereof. The plaintiffs have appealed from the judgment entered upon that decision.

The case turns here, as it did below, upon the application of payments. While the plaintiffs were delivering the materials for the building in question to Eagle & Sons, they paid them $100 at one time, and $250 at another, and the plaintiffs credited and applied those payments to another, and older account which they had against Eagle & Sons. The defendant Muller now claims that the sum so credited upon the old account should have been applied to the account for the material used in the building of Willert, and the county judge so found and decided. There is no proof that Eagle gave any direction for the application of the pay-i ments to any particular account. On the contrary, there is proof that no such direction was given. The payments were made to Biela, an agent of the plaintiffs, and he testified positively that no such direction was received. The defendant Clause Eagle was called as a witness for the defendant, and said this, among other things : “Q. Did you tell Mr. Biela that you got this money from Willert? A. Yes. Q. That this was to be applied on the Willert job? A. Eo; not that exactly, but I told him that that was money of Mr. Willert, and ‘I give it to you on account.’ ”

Eeither Eagle nor Willert raised any objection to the application made by the plaintiff of the'payment of the $350, but, the county judge seems to have assumed and decided that it was the right of Muller, as a subsequent lienor, to have the payment applied to the payment of the material furnished for the building of Willert, because the money came from him. The theory is faulty and erroneous. The money was paid by Willert to Eagle on account of his indebtedness, and when it was delivered to the latter it became his absolute property; and the former ceased to have any interest or equity in it, or any right to control over it. Eagle was under no obligation to appropriate the money in any particular manner. Although he obtained it from Willert for the purpose of paying it to Biela, yet he was not obliged to pay it to him. He had the power and the right to appropriate it as he pleased. It was his right, when he paid the money to Biela, to direct its application to the payment of the account for materials furnished for the Willert building, but he did not do so. He told Biela, he gave it to him on account, but he did not specify any particular account upon which he so paid it. That left the plaintiffs at liberty, and conferred upon them the right, to apply the payment at once to either one of their accounts or claims against Nagle. They accordingly applied it at the time to an account that they had against Nagle which was older than that for the material for the Willert building. Sheppard v. Steel, 43 N. Y. 60; Mack v. Colleran, 136 N.Y. 618; 49 St. Rep. 24.

There being no dispute about the facts, we can do justice to all the parties without reversing the judgment The judgment should be modified by awarding to the plaintiffs the full amount of their claim, $725.28, with interest from December 2,1892, with the costs of this court to be paid from the fund.

Brown, P. J., concurs; Cullen, J., votes for a new trial.


author: Per Curiam.

text:
    Brooklyn Elevated Railroad Company, App’lt, v. Isaac Lewis et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Damages — Elevated railroad.
    If the enhancement in value of property in the vicinity, including that on the street on which the road is constructed, due to the elevated road, is sufficient to equal the injury caused by the road, the property owner is not entitled to more than nominal award.
    2. Appeal — Award—Elevated railroad.
    Where the case presents a fair question of fact and it does not appear that the commissioners erred in the principle, on which they made their determination, the award will stand.
    Appeal from an order, setting aside the report of the commissioners, and directing a second appraisal before the new commissioners.

      Hoadly, Lauterhach & Johnson, for app’lt; David Leventritt, for resp’ts.
   Per Curiam.

It is settled by authority that an award by commissioners will not be set aside for inadequacy or because excessive unless the award is palpably wrong in either respect. This case cannot be said to present such an aspect, though we might have differed from the commissioners in their determination. The building, a flat house, was erected long after the construction of the railroad. It cost the respondents about $18,500. At the time of the hearing before the commissioners it was fully occupied, at a gross rent of over $1,900 a year. Experts on both sides testified that ten per cent, of the value was a fair rental on such property. The rent received at the time of the hearing would tend to show that there had been no depreciation in value. The learned judge at special term considered it conclusive evidence of damage that the gross rent received for two previous years was about $1,575 a year. But he fell into this error: The ten per cent, estimate agreed on by all the witnesses was of gross rental values, not allowing for vacancies and loss of rent, which was estimated to be about ten per cent. With this deduction there would appear no great discrepancy between the rents received and the estimated rental value. The construction and operation of an elevated railroad must create some discomfort to occupier of residential property, as assumed by the judge below, may be conceded, but that is not conclusive as to the right to a substantial award. There is evidence in the case to show that property in the vicinity, including that on the street on which the road is constructed, had enhanced in value, and that in part, at least, it is due to the elevated road. If this was sufficient to equal the injury caused by the road, the property owner was not entitled to more than nominal award. The case, therefore, presented a fair question of fact, and. the award should stand, it not appearing that the commissioners erred in the principle on which they made their determination.

The order appealed from should be reversed, and the report confirmed, with ten dollars costs and disbursements. The appeal denying appellant’s application to resettle, order should be dismissed, with ten dollars costs and disbursements.


text:
    John J. Butler, Resp’t. v. Steinway Railroad Company of Long Island City, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Appeal — Evidence . .
    Though appellate courts interfere cautiously with verdicts where there are no errors of law and only questions of .fact are involved, there will be no hesitation in so doing, where the verdict indicates the presence of misapprehension or prejudice.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      McDonough & Collins, for app’lt; Eugene L. Bushe, for resp’t.
   Dykman, J.

The verdict in favor of the plaintiff in this action is palpably unjust, and should never receive the sanction of this-court. There are sufficient facts undisputed to convince the judicial mind of the injustice done to the defendant by this judgment The plaintiff entered one of the cars of the defendant with U dog, when he was informed that the presence of the anim'al upon the cars was a violation of a rule of the company, he refused to-remove him. By his persistence in transgressing the rule of the company, he forfeited his right to continue in the car, and conferred upon the conductor the right to remove him therefrom.. The trial judge charged the jury that the conductor had the right to remove the plaintiff from the car, and to use as much force as was necessary for that purpose. That reduced the case to the question whether excessive violence was exerted in the removal of the plaintiff from the car. Upon that question the plaintiff held the affirmative, and the preponderance of the evidence is-against him. The testimony shows that he was perceptibly undér the influence of intoxicating liquor, and such intoxication would naturally obscure his intellect, and destroy his power to recollect, the particulars of the transaction. Independent of his interest, therefore, and his natural enmity, his testimony is very unsatisfactory. The testimony, taken together, fails to prove the use of unnecessary" force. He was not struck or kicked, and the conductor manifested no anger. The plaintiff was pushed from the car. He was injured, but his injury was the result of his own misconduct. Appellate courts interfere cautiously with the verdicts of juries where there are no errors of law, and only questions of fact are involved ; but there can be no hesitation in the prevention of injustice. The verdict in this case indicates the presence of misapprehension or prejudice. In our view, twelve fair-minded men, free from prejudice and misconception, will not find, upon the facts of this case, that the conductor of the car used unnecessary violence in the removal of the plaintiff therefrom.

The judgment and order denying the motion for a new trial upon the minutes of the court should be reversed, and a new trial granted, with costs to abide the event.


author: Daly, C. J.

text:
    Adeline H. Terry, App’lt, v. William T. Moore, Resp’t. Parker Syms et al., App’lts, v. Gasimer De R. Moore, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    1. Equity — Mistake oe law.
    A mistake of law, where there are no indications of fraud, imposition or undue advantage, will not be corrected by a court of equity.
    2. Same.
    The testimony, in this case, was held, to establish that the plaintiff, fully aware of the legal question involved in the transaction and acting under the advice of a neighbor, preferred to execute the renewal of the lease rather than to rely upon her legal rights.
    Appeal from a judgment in favor of defendant in each case.

      J. B. Buckingham, for app’lts; Charles R. Souther, for resp’t.
   Daly, C. J.

The complaint of the plaintiff in each action was, in effect, that at the time of the execution of the renewal lease, in 1887, the plaintiffs labored under a mistake as to their legal rights under their original leases, and, being misled and induced "by the representations of the defendant and his agent to waive those rights, executed the renewals in question, by which they were compelled for twenty-one years to pay a rental greatly in excess of what must have been fixed by appraisement under the terms of the original leases. By the terms of the original leases, the rent for the renewal was to be four per cent, upon the value of the lot considered as vacant and unimproved. The representation which misled the plaintiffs, as charged, and the mistake under which the plaintiffs claim to have labored at the time, was that the restrictions with which the use of the lot was incumbered, and which, owing to the extreme changes in the character of the neighborhood, must greatly affect its value, could not be considered by the appraisers in estimating such value, but that the plaintiffs would have to pay four per cent, upon the value of the lot as vacant and unrestricted. When th.s question was before us upon demurrer to the complaint, we held that a good cause of action was stated, and a fit case presented for the interposition of a court of equity. We stated that “ a mistake of law, where there are no indications of fraud, imposition, or undue advantage, will not be corrected by a court of equity ; but where the complainant has been led into a mistake of law by the representations of the defendant, or where the defendant takes advantage of the complainant’s ignorance in a matter of law, relief will be granted.” Terry v. Moore, 3 Misc. Rep. 290; 52 St. Rep. 406. No case as stated in the complaint was made out upon the trial. In Mrs. Terry’s case.it was plainly shown by her own testimony that before, and at the time of, executing the renewal in suit, she was well aware of the construction which might be put upon the appraisement clause in the lease, and that the property might be appraised without reference to its present value under restrictions as to its use; that she consulted a neighbor, and requested him to act for and advise her what to do, and although he said the' ground rent was exorbitant, owing to the great depreciation of the property in value, she had better submit 'to it, as the arbitration would be uncertain, owing to the same construction, and that she went with him to the office of the lessor’s agent, and, .after protesting that the amount was exorbitant, told him she would submit to it under the circumstances, and that they should prepare the lease; that afterwards she was urged to sign it, one of the defendant’s sons informing her that all the other leaseholders had signed, and that he did not know how she could avoid doing so. It was manifest from this testimony that, so far from the plaintiff Mrs. Terry laboring under a mistake of law or of fact, she was fully aware of the legal question involved in the transaction, and that, acting under the advice of a neighbor, she preferred to execute the renewal, rather than to rely upon her legal rights. Her attitude now in repudiating the renewal lease is not due to a discovery of a mistake, but to a change of mind. The court can afford no relief, under such circumstances. In the case of Mr. Syms, it appears that his, father, the lessee, was represented by Mr. Hyde, a lawyer, who made various inquiries of the defendant concerning the lease, which he then took away, and had under ..consideration for several days, and then returned, saying that he had informed the lessee that in his judgment the lease was properly drawn, and he should advise him to execute it, as it was in proper shape, and in conformity with the covenants of the prior leases. There was no evidence whatever that the lessee at the time was mistaken as to the effect of the covenant or his legal rights, or that he was laboring under any misapprehension, or was induced to act in any manner by the representations of the defendant, dr that the renewal lease was not executed voluntarily, and with full knowledge of the law, or that, as alleged in the complaint, he made the mistake of waiving his rights of having the rent settled for the ensuing term settled by arbitration. There being a complete failure to establish the causes of action set out in the respective complaints, judgment was properly rendered for the defendants, and must be affirmed, with costs of appeal. All concur.


author: Bischoff, J.

text:
    Edward Hawk, by Guardian, etc., Pl’ff, v. American News Company, Def’t.

      (New York Common Pleas, Special Term,

      Filed February 11, 1895.)

    Libel — Mitigation.
    A statement of matter, in an answer in an action for libel, which tends to disprove actual malice and is in mitigation of damages, is not demurrable.
    Demurrer to a partial defense in an action for libel.
    The complaint alleged that on February 14, 1894, defendant falsely and maliciously published and disseminated the libelous matter complained of, concerning the plaintiff; and that such' libelous matter was printed in a publication named the “ World" which was distributed and disseminated by defendant. The answer denied, generally, all the allegations of the complaint, and as a partial defense to the entire complaint, in mitigation of damages, alleged that defendant was engaged in the business of receiving newspapers and periodicals from the publishers thereof, and, immediately upon their receipt, delivering the same exclusively to dealers in newspapers; that the number of newspapers so received and delivered amounted to thousands of copies daily, and the aggregate of newspapers and periodicals handled in the course of a year, to millions of copies; that owing to the large number of papers handled, and the necessity for delivering them to the dealers at the earliest possible moment, it was impossible for defendant to ascertain the contents thereof before delivery, or to investigate the truthfulness of articles contained therein; and that the delay necessary for such investigation would cause great inconvenience and loss to the public. It also alleged that among the newspapers so received and delivered by defendant, with the utmost practicable dispatch, and without knowledge of their contents, on February 14, 1894, was the World; that defendant was not the editor, owner, publisher, or proprietor, in whole or in part, of the World, had no control over its colums, and did not write, or cause to be written, the article complained of, or know that it was contained in the issue of February 14, 1894; that defendant had no knowledge that the World was a paper likely to contain libelous matter; and that defendant had no express malice towards plaintiff. Plaintiff demurred to the partial defense, for insufficiency.

      E. W. Brenen, for pl’ff; E. A. Carley, for def’t.
   Bischoff, J.

The partial defense to which the demurrer is interposed is properly pleaded as such (Code Civ. Proc. § 508), being a statement of matter in mitigation of damages (Id. §§ 535, 536, 3343, sub. 9), since, in an action for libel, facts tending to disprove actual malice, such as do those here pleaded, may be proven in mitigation, inasmuch as a recovery of exemplary damages may be thereby resisted. Bisbey v. Shaw, 12 N. Y. 67, 74 : Bush v. Prosser, 11 id. 347; Samuels v. Association, 52 id. 625 ; Daly v. Byrne, 1 Abb. N. C. 152, note. Demurrer overruled, with costs.


author: Brown, P. J.

text:
    John H. Cheever, Resp’t, v. John F. Schall, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May, 13, 1895.)

    1. Statute op frauds — General letter op credit.
    The provisions of the statute of frauds as to contracts to answer for the debt of another are not applicable to a general letter of credit. In such case, on the person requested complying therewith, an original contract between him and the writer is completed.
    2. Same — Pleading.
    A defense, founded upon the statute of frauds, must be pleaded.

      3. Guaranty — Scope.
    A guaranty of the payment of rent upon the lease of a farm is presumed, in the absence of evidence to the contrary, to contemplate a lease upon such terms and conditions as were usual to that class of property.
    Appeal from a judgment, entered on a verdict for plaintiff.

      George C. Andrews, for app’lt; Abram J. Miller, for resp’t.
   Brown, P. J.

On April 1, 1886, the plaintiff leased to George Gablemann a farm in the town of Greenburgh, Yfestchester county, for the term of five years, at an annual rent of $250, payable half-yearly. This action was brought against the defendant to recover a balance of unpaid rent for said farm, upon an instrument of which the following is a copy:

“Tarrytown, December 5th, 1885.
“Dear Sir: Let Mr. George Gablemann have your farm at Sawmill river valley for the term of five years, and I will see you paid.
“Yours, John F. Sohall.”

The farm leased by the plaintiff to Gablemann was situated in the Sawmill river valley, and it appeared from uncontradicted testimony that negotiations for the leasing of the farm commenced between the plaintiff’s agent and Gablemann in the fall of 1885 ; that security for the payment of the rent was required by the plaintiff ; and that, at the time of the execution and delivery of the lease, the instrument in suit was delivered to the plaintiff. At the close of the evidence the court directed a verdict for the plaintiff, and from the judgment entered thereon the defendant has brought this appeal. The defendant asks us to reverse the judgment on two grounds: First, that the guaranty is void, for the reason that it does not disclose upon its face in whose favor or to whom it was made; and, second, that the lease cdntains special covenants not contemplated by the guaranty.

A note or memorandum sufficient to take a contract out of the operation of the statute of frauds must state the whole contract with reasonable certainty, so that the names of the parties thereto, and the substance thereof, may be made to appear from the writing. itself, without recourse to paroi evidence. Mentz v. Newwitter, 122 N. Y. 491 ; 84 St. Rep. 207, and cases cited. That case arose upon a contract to sell land, but the rule there applied is equally 'applicable to all contracts, which, by the statute of frauds, are required to be in writing. I am of the opinion, however, that the rule applied in that case is not applicable to the ease under consideration. The instrument sued upon is a general letter of credit, and the rule applicable to that class of instruments is that, as soon as any person accepts the proposition tendered, and complies with the request of the letter, a contract is at once completed between himself and the letter writer. A direct privity arises at once between the acceptor and the letter writer, and the contract becomes the same in effect as if the letter had been specially directed to the acceptor. Watson v. McLaren, 19 Wend. 565 ; 26 id. 425 ; Birckhead v. Brown, 5 Hill, 642 ; Bank v. Coster, 3 N. Y. 203; Benedict v. Sherill, Hill & D. 219; 2 Daniel, Neg. Inst. (4th ed.) § 1797a.

We are, moreover, of the opinion that the question of the validity of the instrument sued upon is not before us on this appeal. A defense founded upon the statute of frauds must be pleaded, and, in the absence of such a plea, the defendant will be deemed to have waived the benefit of the statute. Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659. The complaint in this action set forth the instrument sued upon, and the defect in the plaintiff’s cause of action (if any existed) appeared on the face of that pleading. The defendant neither denied, nor did he plead the statute of frauds as a defense in his answer. Under such circumstances, it was held by the court of appeals in the case cited that a defendant waived the benefit of the statute.

Hone of the conditions of the lease can be deemed tobe beyond, the contemplation of the guarantor. He intended to guaranty the payment of the rent of a farm for five years, and contemplated a lease of a farm upon such terms and conditions as were usual to that class of property. The covenants as to the payment of the rent and the reservation by the lessor of a right to re-enter upon the farm and repossess himself thereof in case of its nonpayment, together with the covenants on the part of the tenant to keep open the ditches and cultivate the farm according 'to the usual course of husbandry as practiced in the neighborhood, were all the usual and ordinary conditions of farm leases, and must be presumed, in the absence of evidence to the contrary, to have been within the contemplation of the defendant when he signed the instrument in suit It does not appear that the plaintiff ever notified the defendant of the acceptance of the guaranty, or that he had leased his farm to Gablemann on the credit of defendant’s letter. In the absence of any proof of that character, the defendant’s liability for the rent might be questionable. But no point of this kind was made upon the trial, and the question is not before us for review. The judgment must be affirmed, with costs.


text:
    Rose Corley, Resp’t, v. James McElmeel et al., App’lts. Annie E. Stover, Resp’t.

      (Supreme Court, General Term,Second Department,

      Filed May 13, 1895.)

    Wills — Probate—Effect.
    A surrogate’s decree, refusing to admit a will of real property to probate, is not conclusive upon the devisees as to the validity of the will.

      Appeal from a judgment in favor of Annie E. Stover, and from an order denying a motion for a new trial.

      Shepard & Quinn, for app’lt Rose Corley; Thomas Bracken, for app’lts McElmeel and Catherine McCarron ; Joseph I. McKeon, for' app’lt Margaret McCloskey; Boardman & Boardman, for resp’t Annie E. Stover; Ayres & Walker, for resp’ts William H. Clark and Noah T. Clark.
   Dykman, J.

This is an appeal from a judgment in favor of the defendant Stover. The action was brought for the partition of real property which formerly belonged to Patrick Trenor, deceased. Trenor died in February, 1888, leaving a last will and testament, by which he devised the real property in question to Annie E. Stover. When the will was presented for probate to-the surrogate of the county of New York, it was contested; and, at the close of the contest, the will was rejected, and probate thereof was refused. Thereupon this action was commenced for the partition of the property. The plaintiff and some of the defendants are heirs-at-law of Patrick Trenor, deceased. The complaint was framed for the purpose of testing the validity of the will of Trenor, and contains an allegation that it is void and-ineffectual. The defendant Annie E. Stover answered, and set. up the will as a defense to the action, alleged its validity, and claimed the property as devisee under it. When the cause came on for trial, a question arose respecting the effect of the surrogate’s decree rejecting the will, and a stipulation was made that the jury which had been impaneled should be discharged, and, if -the trial judge decided that the surrogate’s decree was not conc!usive, then the issue touching the validity of the will should be tried before a jury at a subsequent term, and, if the judge decided that the decree was conclusive against the will, the plaintiff should prevail in the action. The decree of the surrogate and certain other papers connected therewith were then received in evidence, and the decision respecting their effect was reserved.. Subsequently the trial judge decided that the decree of the surrogate was not conclusive against the validity of the will, and directed the issues respecting the same tó be tried by a jury. Pursuant to that direction the cause was tried before a jury, and a verdict was rendered, in favor of the defendant Stover, establishing the validity of the will. Upon this last trial the counsel for the plaintiff offered in evidence the decree of the surrogate rejecting the will. The decree was excluded, and that exclusion presents the sole and only question involved upon this appeal.

A decree of a surrogate admitting to probate a will of real-property establishes presumptively all the matters determined by the surrogate (Code Civ. Proc. § 2627); while a decree of a surrogate admitting to probate a will of personal property made is-conclusive as an adjudication upon all questiotis legally determined by the surrogate (Id. § 2626). Such are the effects of surrogates’ decrees admitting wills to probate; but we are required now to ascertain and determine the effect of a decree rejecting a. will of real property. The first impression upon the mind on the-presentation of the question is that such a decree can have no fegal effect upon the will as an instrument of title to land. That conclusion is reached naturally from the nature and character of the will. It becomes operative upon the death of the testator, and the title of the devisee to the land devised becomes vested at that time. A failure to propound the will for probate can have no effect upon such title, because it is derived from the will. Its probate wo'uld be of no avail except to supply presumptive evidence of its validity, and that may be repelled at any time by contrary proof. 2 Rev. St. p. 58, § 15. Wills of real property may be used to establish titles which they create in the same manner as deeds. In fact, they have sometimes been called “statutory conveyances.” They may be introduced in evidence, upon proper proof, in any action to recover the property devised or to defend the possession thereof. Norris v. Norris, 32 Hun, 176. A will may be read in evidence as an ancient instrument, when it has. sufficient age and possession has been in accordance with it, without proof of its execution, the same as a deed. Greenl. Ev. § 21; Jackson v. BlansKan, 3 Johns. 294. The argument of the appellants is not only that the decree of the surrogate should have been received in evidence, but that it was res adjudicata and a final determination of the rights of the parties. The contention of the appellants, if successful, would deprive the devisee of the constitutional and common-law rights of trial by jury in respect to land devised by the will; and such deprivation is beyond the province even of the legislature. The foregoing views are supported by the decisions in the cases of Bogardus v. Clarke, 4 Paige, 623, and Harris v. Harris, 26 N. Y. 437.

Without further pursuit of the subject, our conclusion is that the judgment should be affirmed, with costs.

All concur.


text:
    Theodore V. Smalley, App’lt, v. Fulton Bank, Resp’t.

      (Supreme Court General Term, Second Department,

      Filed May 13, 1895.)

    Banks — Deposit—Appropriation.
    The question as to whether the depositor ratified the appropriation of his check to the teller’s defalcation, was held, under the facts and circumstances of this case, to be one for the jury.
    Appeal from a judgment dismissing the complaint.

      Logan, Clark & Desmond, for app’lt; Bergen & Dykman, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the defendant entered on a dismissal of the complaint on the merits at circuit. The action is to recover $10,000, an alleged balance of deposit with the defendant, and r.he sole dispute is whether a check for that amount, due August 31,1885, was properly charged to the plaintiff’s account. The complaint was dismissed at the close of the plaintiff’s testimony. So we have only his version of the matter, and the question is whether he made out a claim which should have been submitted to the jury. The plaintiff testified that he was not only a depositor with the defendant, but acted as a broker selling for the bank its silver coin. The course of business between the parties was that each week the plaintiff would give the defendant a check signed by him, but blank in other respects ; that at times during the week he would take from the bank its silver, and the amounts taken be written on the back of this check; at the commencement of. the next week he would give the defendant a check on a New York bank, to pay for the silver taken the previous week, and at the same time the blank, check, with the indorsement thereon, would be destroyed, and a new blank check given by him. His account of the giving of the check in dispute is that it was one of the old memorandum checks, which should have been destroyed; that it was produced to him on this occasion with indorsements on it to an aggregate of $10,-000 ; that he disputed his receipt of that amount during the past week, but, on being urged by the president and cashier, signed the check. He then left the bank, with the paying teller, and was told that it was not to pay for silver, but to pay the amount of the teller’s defalcation, that the check was needed. He then went to the teller’s father, who gave him a note for the sum payable at another bank the next day. The note was not paid. Within the next week he went to the bank several times, and protested that ¡the check was improperly charged to him, and finally, on September 7th, closed his account by drawing out the balance that appeared to his credit on the books of the bank. The defendant’s answer alleged that the check was given to make good the deficiency or debt of the teller. The story told by the plaintiff is certainly a singular one, but its credibility was for the jury. If believed, it showed that the check was given by him under a mistake of fact, not in payment of the teller’s defalcation, but upon the claim that he was indebted to the bank for silver. The answer of the defendant narrowed the issue between the parties to the claim that this check was given for the teller’s debt, for it admitted all the deposits alleged in the complaint, and also the credits therein given to the defendant. It was therefore not necessary for the plaintiff to go further than disprove the allegations of the answer in this respect, and show under what circumstances the check was given. But, if further evidence than the allegation of the answer was necessary to show that there was no such debt from the plaintiff to the defendant on account of silver, we think such fact appeared on the trial. The plaintiff testified that he appeared before the president and directors with reference to his claim ; that the president told him that when he (plaintiff) took the teller’s note he discharged the bank. The failure of the defendant to make any claim at that time for silver given plaintiff is sufficient to show that such claim did not exist. Therefore the plaintiff was entitled to go to the jury, despite the improbability of his story, unless it appeared that he subsequently ratified the appropriation of the check to the payment of the teller’s debt. The first act which it is claimed is a ratification is a receipt by ' the plaintiff of the note of the father of the teller payable the next day. This did not conclusively establish the assumption of the teller's debt/ The plaintiff had, according to his story, unknowingly given the check which was used for that purpose. He had a good defense to the check, but still he had executed an instrument which prima facie constituted an obligation against him. He might be justified in obtaining indemnity against the danger of liability on the instrument, without estopping himself from denying his liability. The second claim of ratification is based upon the dealings between the plaintiff and defendant after the former knew of the object to which his check had been appropriated. The disputed check overdrew the plaintiff’s account almost to its face amount. He then obtained loans from the defendant which made his account good. These loans he afterwards paid. His pass book was balanced on September 7th, with the charge of the disputed check, and he drew out the balance, thus closing his account. These transactions doubtless tended to prove a ratification and acquiescence by the plaintiff in the appropriation of his check, but still they merely presented a question of fact for the jury, and, in the light of other testimony by the plaintiff, were not conclusive. He testified that during this period he continuously denied his liability on the check, and, further, that during the whole time the defendant held his securities to the extent of $37,000. If this was the fact, he was to a certain extent in the power of the defendant. There was a duress of goods. As to the notes given by the defendant, they were not for this particular claim, but applied on his general account. The plaintiff could undoubtedly, i n an action on those notes, have counterclaimed for his deposit balance or the misappropriation' of his check, but he was not bound to do so. He could pay the notes, and retain his affirmative cause of action against the defendant. The judgment appealed from should be reversed, and a new trial ordered, costs to abide event.