text:
    In the Matter of the Final Accounting of The State Trust Co., Trustee of the Estate of Augustus Halsted et al.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Attorneys—Intebest.
    On the final settlement of an estate, interest will not be allowed oncosts awarded to attorneys in a proceeding to remove a former assignee, by order and not by judgment, where it appears that the amount awarded was a sufficient compensation for the services rendered, and the allowance of interest would make the claim for costs exceed the assets in the trustee’s hands.
    Appeal from judgment entered upon the report of a referee.

      Thomas Allison, for app'lts; J. Warren Lawton, for resp't.
   Per Curiam.

In the account presented by the trust company it charges itself with $2,672.93, moneys collected, and credits itself with $374.85, paid out for legal services and expenses, and $131.39, for its commissions; leaving $2,121.69. The account so presented was not contested before the referee or at special term, and it was allowed as made out. The trust company made no claim before the referee or at special term for the costs of the accounting, and we are unable to see how any could have been incurred, as its account was allowed as rendered, without contest. Besides, the trust company has not appealed from the order of the special term, and no question can be raised in this court upon the refusal to allow it costs on the final accounting. By an order, but not by the judgment, entered December 20, 1869, in the action for the removal of the assignee, the attorneys for the plaintiffs were allowed $706.31 costs, and the attorneys for the defendants $518 costs. The interest on the costs of the plaintiffs’ attorneys amounted to $1,022.45, and on the costs of the defendants’ attorneys to $749.86. The special term refused to allow interest on the costs of the attorneys, and they appeal from that part of the order.

Whether interest should be allowed is the only question before the court. If it is allowed, the claims of the attorneys will exceed by $874.93, the amount in the hands of the trust company; but, if interest is not allowed, there will be left $897.38 for distribution among the creditors. It is urged that the statute gives interest on a judgment for costs; but the answer to this is that no judgment was entered in this case for a fixed sum of costs. The costs might have been included in the judgment when originally entered, .or they might have been subsequently taxed and inserted therein ; but neither course was taken, and so, technically, a judgment for costs was not entered. Believing that the compensation awarded to the attorneys is ample for the services rendered, without the addition of interest, and that something should be left for the creditors, we think the order should be affirmed, with costs.

Yak Brunt, P. J., O’Brien and Follett, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J. O'Brien, J. (dissenting.)

license: Public Domain

text:
    The Mercantile National Bank, Resp't, v. The Corn Exchange Bank, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Pleading—Extension of time—Limitation.
    While the court or judge has power under the Code to enlarge the time within which a proceeding in an action after its commencement must be done ; it has no power to grant an indefinite extension of time to serve the complaint where the plaintiff at the time has no cause of action and the action is brought for the purpose of avoiding the statute of limitation in case it should be determined hereafter that a cause of action did exist.
    (O’Bbien, J., dissents.)
    Appeal from an order extending plaintiff’s time to serve a complaint until determination of an appeal in the suit of Phil ■ lips, receiver of the National Bank of Sumpter against this plaintiff.

      J. M. Bowers, for app'lt; Charles A. Davison (S. B. Brownell, of counsel), for resp't.
   Van Brunt, P. J.

It seems to be conceded that the plaintiff at the present time has no cause of action whatever as against the defendant; and this action was brought in order that at some future time, in case it should be determined that a cause of action did exist, the Statute of limitations should not have run against such cause of action. We are not aware of any authority upon the part of the court to extend the operation of the statute of limitations. It is true that under the Code the court or a judge may make an order enlarging the time within which a proceeding in an action after its commencement must be commenced. But it is apparent that this power was not given to the court for the purpose of defeating the provisions of law in respect to the limitations of actions. In this case some action has been commenced, but nobody knows what action, or upon what claim, or founded upon what facts; and the result of such indefinite extension would be to enable the plaintiff to avail itself of the cover of this summons served, to prevent the statute from running against any claim- for any cause which it might have against the defendant. By not serving the complaint such a result would be produced, and we think this is an abuse of the discretion which is confided in the court to extend the time within which a proceeding in an action may be taken. The order should be reversed, with ten dollars costs and disbursements, and ' the plaintiff required to serve his complaint within a reasonable time.

Follett, J., concurs.

O'Brien, J. (dissenting.)

In my opinion, the court had the power to make the order appealed from, and upon the facts here appearing it was properly exercised. I, therefore, dissent.


author: Per Curiam.

text:
    In the Matter of the Appraisement of Certain Legacies and Assessment of Collateral Inheritance Taxes thereon under the Will John Knoedler, deceased.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Collateral inheritance tax—Insurance policies.
    Where a policy is made payable to the deceased, or to his personal representatives, the proceeds form part of the assets of the deceased, pass under his will or the statute of distributions, and are subject to taxation under the statute.
    Appeal from an order of the surrogate, affirming, on the formal appeal required by § 13 of the Collateral Inheritance act, an order theretofore made by said surrogate confirming the reports of the appraiser appointed under said act, and assessing and fixing the cash value, at the decedent’s death, of the property bequeathed to each of the appellants, subject to the payment of said tax, at the sum of $34,213.61, and assessing the tax due thereon from each of the appellants at the sum of $1,710.68.
    The following is the opinion of the surrogate.
    Bansom, S.—The deceased died in June, 1891, leaving a will by which, after the usual provision for his debts and funeral expenses, he gave the entire residue of his estate to his brother Michael, and in case of his death before him to be divided in equal shares between his children and their issue. The brother predeceased the testator, leaving issue. Amongst the property which came into the possession of the executors were four policies of insurance, three of which were payable to the deceased, his executors, administrators and assigns ; the fourth being a paid-up policy, payable to the decedent’s legal representatives. When the matter of the appraisement came up, the administrator c. t. a. claimed that the proceeds of those policies formed no part of the estate of the testator. It did not appear from the proofs introduced before the appraiser what the terms or character of the policies were, and it was remitted to the appraiser for the purpose of having this proof introduced. Sworn copies of the policies were put in evidence before the appraiser and the matter now comes up for determination.
    It is claimed on behalf of the administrator (1) that the interest of the testator in the policies did not constitute property ; (2) that, if they were property of the testator he did not die seized or possessed of the same, and that, consequently, the proceeds are not subject to the provisions of the act taxing bequests. Before stating my conclusions, I will refer to a few authorities not cited in the briefs of counsel, which, to my mind, are influential in ascertaining the true rule in cases of this character. In Re Van Dermoor, 42 Hun, 326; 3 St. Rep., 713, the court states: “ If there were no beneficiary named in the policy, probably the amount received would be assets. But where there is a beneficiary, we think the amount received is not assets, for it belongs to the beneficiary, and not to creditors or legatees. And it belongs to her, if at all, not by virtue of any will of the testator, or of any administration of his estate, but by a contract of the company under which they were to pay it, as she claims, for her benefit. The executor, therefore, has in this particular, if the petitioner is right, no will of the testator to execute.’’ Winten'halter v. Workmen’s 6r. F. Ass'n, 17 Pac. Rep., 1, was decided in the supreme court of California, in March, 1888. In this case the policy, “shall be paid to-, subject to his will.” The insured never filled in the blank bv inserting the name of a beneficiary, but left a will whereby he bequeathed to his mother all his estate and effects. The plaintiff was named as executor. The application of the insured contained the following clause: “I hereby authorize and direct that the amount of said guaranty fund to which I may be entitled shall at my death be paid subject to my will.” íhe court said, “The question presented for determination upon the facts is this: Is the executor entitled to recover the sum due decedent, or does it go directly to his mother? It may be stated that, where a policy of life insurance expressly designates a person as entitled to receive the insurance money, such designation is conclusive, in the absence of some question as to the rights of creditors.
    “ The receipt of the person designated will discharge the insurer, and he may sue for a recovery of the amount due at the maturity of the policy. In such cases the legal representative of the insured has no claim upon the money, and cannot maintain action therefor. It forms no part of the assets of the estate of the insured. * * * Mor was there any special designation of the mother of deceased as the beneficiary of the amount to be realized on this policy in the will of the deceased, except that all of his property was bequeathed to her after the payment of his debts and liabilities. * * * The testator has bequeathed the fund in question to his mother, subject to the payment of his debts; and, as these can only be paid through the intervention of his executor, the court below was correct in its conclusion that the executor was a proper party to have and recover the fund out of which such debts, if any, are to be paid.” In Geo. Home Insurance Co. v. Kinnier, 28 Grat., 88, a policy of insurance on a building insured K. and his legal representatives. The building having been burned after the death of K., his administratrix brought suit on the policy. The chief question was that the action should have been brought by the heirs of the plaintiff’s intestate. The court said: “I do not think this is the proper construction of the policy. The policy declared upon, and as set out, is a contract to indemnify Alexander Kinnier personally. The words 1 legal representatives,’ as used, are of the same import as the words 1 executors, administrators, personal representatives.” The policy, as set out, is a simple contract; and upon the death of Alexander Kinnier passed, like his bonds, notes, and other choses in action, to his administratrix, and she only had a right of action upon it.” In Kelley v. Mann, 56 Iowa, 625, by the terms of the policy, the amount was payable to the “ legal representatives.” The insured died intestate, leaving a widow and two children. The widow was appointed administratrix, and collected the policy. Sections 2871, 2372, of the Code, provide “ that the avails of any life insurance * * are not subject to the debts of the deceased, * * * but shall, in all other respects, be disposed of like other property left by the deceased.” The court said: “ That a life policy is assets of the estate, the same as any other chose in action, cannot be seriously questioned. The only difference is in the manner of distribution. The general assets are liable for the debts of the estate, and the avails of life insurance are required to be paid to the wife and children of the intestate.”
    This last provision is, of course, by specific statutory regulation, and would not apply in this state. While there may be grave doubt as to the liability to the tax of the proceeds of a policy of life insurance which is collected by a beneficiary specified in the policy, I do not think it can be seriously questioned that where the policy is made payable to the deceased, or to his personal representatives, that the proceeds form part of the assets of the deceased, constitute a fund out of which creditors and legatees are to be paid; that these proceeds pass by the will of the decedent, or the statute of distributions, and are subject to taxation under the law. The interest of the deceased in the policies was property of which he was possessed during his lifetime. It was assignable, and it is matter of common knowledge that merchants frequently obtain large credits," and to a considerable extent transact business, upon the collateral security afforded by property of this character. Should the insurer become insolvent, or for any other reason wind up its affairs, the policy holder would be entitled to share in its assets. The fact that this interest which he has may lapse by reason of his failure to carry out the terms of the contract by the payment of premiums, or do any other act by which his interest is forfeited, does not deprive his interest of the character of property. It might as well be argued that a leasehold was not property of which a testator died possessed, because he was liable to forfeit the same by non-payment of the rent.
    The claim is also made that the testator liad no property rights in the policies which could be assessed at the time of his death; that these policies, during the lifetime of the decedent, are but contracts enforceable only after the death of the decedent, and that it would be absurd to say that the decedent died seized or possessed of property in these policies, when the thing could not be or become property until after he died. There are numerous cases holding that the policy is a chose in action, and to say that the fact that the proceeds could not be collected, under the terms of the contract, until the death of the insured deprived it of the character of property, is really as absurd as it would be to say that a promissory note payable upon the death, or after the death, of the payee, was not property of which he was possessed during his life and at his death. Submit order confirming appraiser’s report, and assessing and fixing the tax.

      B. F. Watson, for app'lt; Edgar J. Levey (E. R. Olcott, of counsel), for resp't.
   Per Curiam.

We think that the order appealed from in this action should be affirmed, with costs, upon the opinion of the court below.

Yan Brunt, P. J., O’Brien and Follett, JJ., concur.


author: O'Brien J.

text:
    The People ex rel. George L. Davenport, App'lt, v. Frank Rice, Secretary of State, Resp't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Corporations— 0 rganiz ation—Certificate—Hand amu s .
    The secretary of state has the right to pass on the question as to the form of the certificate for the organization of a corporation, and as to whel her or not the persons offering it are entitled to have the ^ame filed under the statute under which the company is sought to be organized, subject to review in a proper proceeding; and a mandamus will not lie to compel him to resolve this in favor of the persons so offering it, although the certificate was approved by a justice of the supreme court.
    Appeal from an order denying an application made for a peremptory mandamus to compel the respondent to file a certificate-presented to him as secretary of state.

      Joseph Fitch, for app'lt; S. W. Rosendale, att'y gen'l, for resp't.
   O'Brien J.

The certificate of of the Universal Thrift Company of Few York is drawn under chapter 267 of the Laws of 1875, entitled “An act for the incorporation of societies or clubs for certain lawful purposes.” It was drawn and executed in this city, and the approval and consent to its filing by a justice of this court was annexed. The particular business and object of this corporation, as stated in its certificate, “ is to establish and create a helpful opportunity for thrift among cash purchasers, upon their individual and family expenditures, by providing for commissions from tradesmen on cash sales, which are to benefit, through the company, the purchasers.”

The certificate approved by the justice of this court was forwarded to the secretary of state, who refused to file it upon the ground, as stated in the letter of his deputy, that “ these objects are of a business nature, and are, therefore, not authorized under the act mentioned. Olmp. 267, Laws 1875. Said act is for the incorporation of societies or clubs, and not for the carrying on of the business contemplated by the proposed corporation.”

This application for a peremptory mandamus to compel the secretary of state to file such certificate was the result of the secretary’s refusal; and upon the application the motion was denied, without passing upon the other questions, upon the ground that it should have been made in the third district, which includes the city of Albany. The judge at special term relied upon the case of Mason v. Willers, 7 Hun, 23, which held that a motion for a mandamus to compel the secretary of state to file a certificate of incorporation can only be made in the third judicial district, or a county adjoining thereto. In the opinion by Talcott, J., attention is called to “the great inconvenience and detriment to the public business, which must result if motions of this character can be made in any one of the numerous special terms of this state and public officers be compelled to j ustify their official acts at all times away from the neighborhood of their offices and their books and papers.” This consideration of the convenience of public officers, and detriment to public business, is potent in all cases where a legal ground can be found for requiring parties, as they should be required, to apply in the third district. But this is, however, quite different from holding that a judge in any other district has no jurisdiction to entertain applications for mandamuses against public officials whose offices are at Albany. In the case referred to the court was construing 3 Eev. St, chap. 9, tit. 2, § 16 (5th ed.), p. 898, and §§ 401 and 471 of the Code of Procedure, all of which statutes have been repealed ; § 401 of the old Code being re-enacted in the Code of Civil Procedure as § 769, and mandamus applications being specially provided for by the present Code in §§ 2068 and 2084. By § ‘2068 of the Code of Civil Procedure it is provided that “a special term granting a mandamus must be one held within the district embracing the county wherein the issue of fact joined upon an alternative writ of mandamus is triable.” And by § 2084 “an issue of fact joined upon an alternative writ of mandamus granted at a special term is triable in the county wherein it is alleged in the writ that the material facts took place.”

It would seem, therefore, that, applying this test, the district in which the application should be made is dependent, not upon the location of the office of an official, but rather upon where material facts which it might be necessary to determine upon an alternative writ had occurred. In other words, the proper district in which to make the application is to be resolved by determining in what county or place an issue of fact joined upon an alternative writ of mandamus, if granted, would be triable ; and as this is dependent upon where the material facts occurred, and as it is here made to appear that some of the material facts occurred in New York, and some in Albany, it is not entirely clear that we would be justified in sustaining the view taken by the judge below, that the special term in this district had no jurisdiction to entertain the present application.

We think, however, without passing upon that question, that the disposition made must, upon other grounds, be sustained. The claim that the secretary of state is a mere ministerial officer, and was bound by the approval of a justice of the supreme court, is not borne out by statute or authority. In People v. Nelson, 46 N. Y., 477, it was held “ that the secretary of state is not required to file a certificate for the organization of a corporation not authorized by the actand, further, that “ a compliance with the act, as well in substance, by associating for one or more of the authorized objects, as in form, by signing and acknowledging a proper certificate stating the facts required, is a condition precedent to the right of the associates to avail themselves of the act, and place the certificate on file." 1 The same case is also authority against appellant’s contention that the approval of a justice of the supreme court is conclusive upon the secretary of state; for it is therein held “ that the consent and approbation of a justice of the supreme court, required by the act, is but one of the conditions precedent to the right to file the certificate, and is cumulative to the other requisites of the act, but decides nothing, and is not conclusive upon either the public or the secretary of state.”

If necessary to go further in order to dispose of the question, we should hold, upon the merits, that the conclusion reached by the secretary of state was right, for the reason that we do not think that chapter 267 of the Laws of 1875 was intended to embrace an incorporation such as was here proposed to be formed. Upon the authority, however, of People v. Nelson, supra, it is sufficient for the disposition of this appeal to say that the secretary of state had a right to pass upon the question as to the form of the certificate, and as to whether or not the relator was entitled to have the same filed under the statute under which the company was sought to be organized, subject, of course, to review in a proper proceeding, and that the application to the special term to compel the secretary of state to resolve this in relator’s favor was properly denied. The order should, therefore, be affirmed, with costs and disbursements.

Yan Brunt, P. J., and Follett, J., concur upon the ground last stated.


author: Van Brunt, P. J.

text:
    John J. Russell, Adm'r, Resp't, v. Laura S. McCall, Ex'rx, Impl'd, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Election on remedies—Partnership.
    Where the administrator of a deceased partner takes a money judgment against the surviving partner for decedent’s share of the assets of the firm, knowing that the survivor had misappropriated the same, he cannot thereafter sue the survivor and those who joined him in such misappropriation to recover such assets on the ground that they constituted a trust fund.
    Appeal by Laura S. McCall, as executrix of James McCall, deceased, from the judgment entered at special term in plaintiff's favor in the sum of $39,682.87.

      Granville P. Hawes (George Hoadly, Barclay E. V. McCarty and H. L. Scheuerman, of counsel), for app'lt; Durnin & Hendrick (P. A. Hendrick, of counsel), for resp't.
   Van Brunt, P. J.

Upon thetrial of this action, the following facts appeared: Prior to February, 1880, the defendant, Schamu M. Moschowitz, and one Mary A. Russell, were copartners in the business of dressmaking at 299 Fifth avenue, New York city. In said February the said Mary A. Russell died, leaving a last will and testament in which she designated her sister, Elizabeth L. Russell, as her executrix, who duly qualified, and, subsequently, having become Elizabeth L. Macdona, commenced this action, and, having died, her brother, John J. Russell, was appointed administrator with the will annexed of said Mary A. Russell, and this action was revived and continued in his name. At the time of the death of said Mary A. Russell, the said copartnership was possessed of a large amount of assets and property in excess of its liabilities, which the said Schamu M. Moschowitz took possession of, as surviving partner of the firm of Moschowitz & Russell, and continued the business as theretofore carried on until the 1st of May, 1880. Upon this day Schamu M. Moschowitz and James McCall formed a copartnership for carrying on said business, and under the name and style of Moschowitz & Russell, and at the same place, continued to carry on said dressmaking business as such copartners. The capital upon which said copartnership carried on business consisted of the assets and good will of the old firm of Moschowitz & Russell, of which said McCall had full knowledge. Upon entering into said copartnership, Schamu M. Moschowitz and James McCall ascertained the value of the assets of said firm, and fixed and agreed upon the value thereof, above all liabilities, at the sum of'$51,019.90. All the liabilities of said firm had been paid and discharged, except a claim made by the defendant, Herman Moschowitz, for the sum of $10,000, claimed to be due for salary. The moneys realized from the sale of the assets and property of Moschowitz & Russell were used by the firm, composed of Schamu M. Moschowitz and James McCall, in purchasing new merchandise, and paying the regular running expenses of the new business; and such assets and propertv, and such new goods and merchandise, were indiscriminately used in the business of the copartnership.

On the 26th of October, 1880, Elizabeth L. Russell, as executrix of Mary A. Russell, commenced an action in this court against Schamu M. Moschowitz, alleging the copartnership between Russell and Moschowitz, and that a large amount of assets belonging to said copartnership, over and above its liabilities at the time of the death of said Mary A. Russell, came into the possession of Moschowitz as surviving partner, and that he, with due diligence, could have wound up and closed out said business within a few months after the dissolution of said firm by'the death of said Mary A. Russell, and have paid over to said plaintiff the share of said deceased in said copartnership business ; that instead thereof the defendant had neglected so to do, and had continued in possession of the place of business of said firm, and said property and assets, and continued to carry on the business, and use the assets and property of said firm in said business, and had made no. efforts to sell and dispose of said assets and property, except in the ordinary course of said business, and that he had in his possession, not sold and undisposed of, the greater part of said assets and property, which were becoming less and less valuable; that plaintiff frequently requested the defendant to wind up the business, but the defendant had neglected so to do, and had not paid to the plaintiff, as executrix, any money or other proceeds of said copartnership, nor had he assigned, transferred, or delivered to her any assets, securities, or other property of the firm, or accounted with her in respect to the same. Then follows an allegation in respect to a claim upon the part of Moschowitz to use the firm name; and judgment is demanded that'an account might be taken of all the dealings and transactions of said copartnership from the time of its commencement to the time of its dissolution by the death of Mary A. Russell, and that the defendant account for all his dealings and transactions in regard to the property, assets and effects of such copartnership since such dissolution, and that the defendant be adjudged to pay to the plaintiff any amount which might be due from him on such accounting, and that a receiver might be appointed, and an injunction issue.

Issue was joined in said action and the same was duly referred, and the referee having reported on the 4th of January, 1884, a judgment was duly entered in said action, by which, after reciting that by said report it appears that the defendant, Schamu M. Moschowitz, as surviving partner of the firm of Moschowitz & Russell, was chargeable with the assets of said firm which came into his hands as such surviving partner, over and above all credits, in the amount of $73,458.44, and that the plaintiff, as successor of said deceased partner, was entitled to recover half of said balance of any assets, subject to the provisions in said decree made for the deposit of a portion thereof, and after reciting that it appeared by said report that Herman Moschowitz was prosecuting a claim, etc., against said firm, and after reciting that it appeared by said report that certain furniture belonging to said firm was in the possession of the plaintiff, and had not been reduced to possession by the defendant, it was adjudged that the defendant Schamu M. Moschowitz, within thirty days after the service of a copy of said judgment upon him, deposit in the "United States Trust Company $44,000 to abide the event of said action brought by Herman Moschowitz against said Schamu M. Moschowitz, individually and as surviving partner of the firm of Moschowitz & Bussell, and then pending, said sum to be applied to the payment of any final judgment which should be obtained in said action, and the overplus, if any, or in case no judgment should be obtained against the defendant, then the whole sum and interest at the final determination of said action to be divided equally between the defendant and the plaintiff or her successor. It was further adjudged that the defendant forthwith reduce to possession the household furniture thereinbefore mentioned, and sell the same, and pay over to the plaintiff half of the net proceeds after deducting the necessary and proper expenses of sale, etc. And it was further adjudged that the plaintiff recover of the defendant the further sum of $14,729.22, being the half of the remainder of the balance of net assets thereinbefore mentioned, after deducting said sum of $44,000, together with costs and allowances. Subsequently proceedings were had by which the latter part of said judgment was modified, and said last mentioned smn was reduced to $435.49. That on the 1st day of January, 1881, the firm of which Moschowitz and McCall were members was enlarged by the addition of a new member,"the defendant Herman Moschowitz, and the firm name changed to Moschowitz Brothers.

Ho new capital was contributed by the incoming member, and the remaining assets and property of the firm of Moschowitz & Bussell were used by the new firm, and new goods and merchandise were purchased with the proceeds of such assets and property, and the same were indiscriminately used in the business of the copartnership of Moschowitz Bros. In February, 1882, McCall began an action in the court of common pleas against his copartners, the Moschowitzes, for a dissolution of said firm, an accounting, the appointment of a receiver, and the issuance of an injunction. In March, 1882, Schamu M. Moschowitz was appointed receiver, and under the orders of the court of common pleas continued to do business. In January, 1885, interlocutory judgment was entered in this action, and the defendants appealed therefrom. Pending this appeal, said McCall died, leaving a last will and testament by which he appointed his widow his executrix, who was substituted in said action in the common pleas.

In January, 1888, this action was commenced by Elizabeth L. Macdona, as executrix of Mary A. Bussell, deceased, against Schamu M. Moschowitz, Herman Moschowitz and Laura S. McCall, as executrix of James McCall, deceased, and Schamu M. Moschowitz, as receiver of the property and effects of Moschowitz Bros., and after alleging the facts hereinbefore stated, and that Schamu M. Moschowitz was insolvent, demanded judgment that the judgment theretofore rendered in her favor in her suit against Schamu M. Moschowitz, as surviving partner of the firm of MoS' chowitz & Bussell, be declared and adjudged to be a lien upon the assets of the business of Moschowitz & Russell and Moschowitz Bros., carried on after the death of Mary A. Russell, and of the property and assets of Schamu M. Moschowitz, as receiver, and that the lien or claim of the defendant Laura S. McOall, as executrix, be adjudged and declared to be inferior and subordinate to the lien of this plaintiff upon said assets, and that the lien or claim of any of the defendants in this action, creditors of the business carried on by the firms of Moschowitz & Russell and Moschowitz Bros., be declared to be inferior to the rights, claims and lien of this plaintiff in and to said assets, and that the judgment recovered by this plaintiff against Schamu M. Moschowitz be paid out of the funds in his hands, so far as the same would go towards the liquidation of said judgment, and that an injunction issue, and that the plaintiff have judgment against the defendants for $-.

The defendant, Schamu M. Moschowitz, answered', denying any copartnership with McOall; admitting the carrying on of the business of Moschowitz & Russell with the property and assets of said firm ; denying that the business formerly carried on was continued without any additional assets or capital; alleging that said business was carried on rightfully, and setting up as a bar the judgment obtained in the action of the plaintiff against Schamu M. Moschowitz, above referred to.

The defendant McCall answered, denying any knowledge or information sufficient to form a belief as to most of the allegations contained in the complaint, and alleging that at the time of the death of Mary A. Russell, the firm of Moschowitz & Russell became and was dissolved, and that Schamu M. Moschowitz, who became and was the owner of all said property, etc., sold and disposed of the same, and was allowed by the executrix of the will of his said deceased partner, without restriction or interference, to sell or otherwise dispose of the same, and that, for the interest or claim of said executrix for the share or interest of said deceased partner, she, on the 4th of January, 1884, recovered a judgment against Schamu M. Moschowitz, as alleged in said complaint, which was afterwards modified, but that no lien or charge upon the assets of the firm was created or established by said judgment, or otherwise, and that said assets and property had, prior thereto, been lawfully disposed of by the surviving partner, and, upon information and belief, claiming the funds in the hands of the receiver.

The issues were thereupon tried before the court, without a jury, at special term ; and before the decision, the plaintiff Mac-dona having died, an order was made reviving and continuing the action in the name of John J. Russell, as administrator with the will annexed of Mary A. Russell, deceased; and a judgment was subsequently entered that said John J. Russell, as administrator, recover of the defendant, Laura S. McCall, executrix of the last will and testament of James McCall, the sum of $22,435.49, with interest from the 1st of May, 1880, to the 16 th of June, 1892, in the sum of $16,328.11, and costs and allowances, duly adjusted at $919.27, making in all, $39,682.87. From this judgment the present appeal is taken.

Certain irregularities are claimed in reference to the proceedings relating to the findings of fact by the court herein ; but, iii view of the conclusion at which we have arrived upon the main question involved, it becomes unnecessary for us to consider that point.

The principal question which is presented upon the foregoing facts is as to the right of the plaintiff to maintain this action, as against the defendant, McCall, after having entered a money judgment against Schamu M. Moschowitz in the action brought by Elizabeth L. Russell, as executrix of Mary A. Russell, against him, for an accounting, and fora judgment for any amount which might appear to be due from him on such accounting; it being claimed upon the part of the appellant that the representative of the deceased partner, Mary A. Russell, by presenting the action for her share in the copartnership assets against thesurviving partner, Moschowitz, alone, is barred from suing him again, joining McCall with him, upon the same cause of action, because the plaintiff’s right of action herein is merged in the judgment recovered against Moschowitz, the survivor, and because the representative of the deceased partner, having recovered a personal judgment against the surviving partner for the value of the interest of the decedent in the firm’s estate, cannot afterwards claim against any person who took title to such assets from such survivor. The learned court below, in the disposition of this case, in its opinion states that at the time the action for an accounting was brought the plaintiff therein was ignorant of the alleged misappropriation by Moschowitz and McCall, and, being so ignorant, by bringing such action, “ she thereby made no election; for, until she was made aware of the misappropriation, there was no basis for an election. But, even if she were fully' advised of what had transpired, her action against the surviving partner would have been no bar to the present action. She had no legal interest in the assets of the late firm. Moschowitz, by virtue of his survivor-ship, became the legal owner of these assets, while Miss Russell’s executor has but an equitable interest in the distribution of any surplus remaining after the payment of the debts. Williams v. Whedon, 109 N. Y., 338; 15 St. Rep., 265. The action which the plaintiff brought against the surviving partner, Moschowitz, was, therefore, an action to ascertain the amount and value of the deceased partner’s share of the assets of the late firm, after the payment of its debts. It was, in effect, an action for an accounting, which must precede any recovery against the surviving partner personalty.

It is clear, therefore, that the rules which govern with regard to trustees of trust funds are inapplicable. Here the cesto que trust must elect whether to hold the unfaithful trustee personalty responsible, or to follow the trust fund into the hands of other persons. He cannot do both. Here there was no such trust fund. The assets did not belong to the estate of the deceased partner, nor did the surviving partner hold the assets as an ordinary trustee for such estate. The estate had a right to require from him the proper liquidation of the business, the application of the assets to the payment of the partnership debts, and the division of the surplus. These are the rights which the law confers upon the representatives of the deceased partner, and these the obligations which it imposes upon the surviving partner. Knox v. Gye, L. R., 5 H. L., 656. “ So far as these obligations extend,” observed Lord Westbury in the case cited, “ the surviving partner may be called a trustee for the deceased partner. There is surely no inconsistency between the assertion of these rights and a subsequent action to compel the restoration of the partnership estate by transferees in complicity with the surviving partner. Such an action is not antagonistic to the ordinary action for an accounting against the surviving partner, but is really in harmony with it, and even in aid of it. Its object is the same, namely, to secure the due application of the partnership assets in accordance with the rights of the deceased partner and the obligations of the survivor. If such assets are still in existence, in specie, the court will require such application, in accordance with equitable principles. If, however, such assets have been converted and misapplied, then the rights of the deceased partner can be adequately secured only by a judgment in personam against each and every person who has shared in the misappropriation of the partnership estate.

“ In other words, the representative of the deceased partner may, by her action for an accounting against the surviving partner, secure a liquidation of the affairs of the firm, and have the balance coming to the estate judicially ascertained. But such representative may also require the application of the partnership assets in accordance with her rights, whether such assets are in the hands of the surviving partner alone, or jointly with some other person, who, without parting with value, simply shares the surviving partner’s possession, with full knowledge of his obligations. In case, however, the assets have been converted, and cannot, therefore, be specificalty applied in accordance with the partnership rights and obligations, it will naturally necessitate a personal judgment against those who were thus jointly in possession of the property.”

It seems to us that in the foregoing reasoning the court lost sight of the fact that the representative of the deceased partner not only brought her action for an accounting, but also for a personal judgment against the surviving partner for the amount which might be found due from him, and that the judgment entered was simply a money judgment against the surviving partner for the amount of assets for which he had been fonnd to be accountable, and that the representative of the deceased partner having chosen to treat the surviving partner as a debtor, to the extent of the interest of the deceased partner in the assets of the firm, she thereby affirmed his title to the same, and his right to dispose of them for his own account. It is a familiar principle that a party cannot recover from a person who has obtained possession of property the purchase price of that property, and in addition thereto, in a separate proceeding, impeach the title of persons who have come into the possession of that property through the original possessor. In the action brought by the representative of the deceased partner, a trust upon the assets of the firm might have been impressed, and such seems to have been the theory upon which the present action was commenced. But having failed to do this, having treated the surviving partner as a debtor to the full amount of the assets, and obtained judgment against him for that amount, it is difficult to see how it is possible to pursue other people, who have become possessed of those assets through the instrumentality of the surviving partner.

What is the result arising from the judgments which have been entered in respect to this property? The plaintiff in'this action has a judgment against Schatnu M. Moschowitz, requiring him to deposit $44,000 in a trust company to meet the liabilities of the firm of Moschowitz k Russell, such sum to be devoted to the payment of such liabilities, when ascertained, and, if not ■exhausted in their liquidation, the overplus to be equally divided between the parties, and also a judgment for the amount of the assets taken by Moschowitz in excess of such $44,000. She has now, also, a judgment against the defendant McCall for over $22,000, being the. one-half of the value of such assets, to which interest is to be added; and when this latter judgment is paid, if Moschowitz deposits his $44,000 in court, and Herman Moschowitz succeeds, or does not succeed, in establishing his claim, the plaintiff will, in the one case, have such liability paid, and will receive half the value of the assets independent of such liability, and in the other case will receive the money twice, $22,000 from the money deposited by Moschowitz, and $22,000 from McCall, and thus, in any event, will in reality be receiving over $44,000 for the decedent’s interest in the assets of the firm of Moschowitz k Russell, which is adj udicated at twenty-two thousand odd dollars.

But it is urged that at the time of the filing of the bill for an accounting, and the taking of the judgment in that action, the plaintiff therein was ignorant of the fact that the new firm had ■converted to its own use all the assets of the old firm, and that this relieves her from the result of the bringing of that action, and the taking of that judgment. If this were true, it might be a reason for relieving her from such judgment in a proceeding properly taken for that purpose. But it is hard to see how she can be deemed to have been in ignorance of the fact that the surviving partner was converting to his own use all the assets of the old firm, in view of the allegations of her complaint in that action. She alleges that the surviving partner had continued to carry on the business conducted by said firm prior to the death of said1 Mary A. Russell, and to use the assets and property of said firm in said business, and had made no effort to sell and dispose of said assets and property except in the ordinary course of said business, etc.

This allegation shows that the plaintiff knew that the surviving partner was not liquidating the business, but was treating the assets as his own, and conducting his own business therewith. It is trpe she also alleges that the defendant has in his possession, unsold and undisposed of, the greater part of said copartnership assets and property, and that the same are becoming less and less valuable. But notwithstanding this allegation, by her proceeding in that action, she took no means whatever to reach said assets, or to have them sold, and the proceeds devoted to the liquidation of her claims, but contented herself with demanding nothing but a money judgment against the surviving partner for the value of the interest of the deceased partner in the firm. How it could be found, under these circumstances, that the suit was brought in ignorance of the misappropriation by the surviving partner of the assets of the firm, we cannot imagine; and there is no such finding contained in the record. But with knowledge of such misappropriation and in the face of an allegation that the surviving partner had still possession of a large amount of these assets, the plaintiff takes a personal judgment against him for the value of her share or interest therein. How can she, then, impeach the title of anybody who has come into possession of these assets through that surviving partner ? A. has converted goods belonging to B., B. sues and obtains a money judgment, and A. transfers the property to C. Can B. recover against C. also? We think not. Fowler v. Bowery Savings Bank, 23 St. Rep., 130, is a case which strikingly illustrates this principle. The plaintiff had deposited money with the defendant bank, which, under a mistake, it paid out to a third party named Flynn. The plaintiff, knowing of this, brought an action, and secured a judgment against Flynn, and attempted to realize upon the judgment. Failing to do so, the plaintiff turned about, and sued the bank, but the court held that the first action was a bar, and that, having made an election, the plaintiff was bound by it. The court say : “If a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then, if he make payment to another person, he has not paid the debt, and the money paid is not in fact the property of the beneficiary. In such case the beneficiary may ignore payment, and sue the trustee as his debtor, or he may ratify and adopt the payment, and sue the person receiving the money as his debtor, but he cannot do both.”

So, in the case at bar, the plaintiff might have pursued the property, or, in default of its recovery, have obtained a judgment. But having brought a suit with knowledge of the misappropriation, and asked for a money judgment, and obtained the same, she cannot pursue the property, as is attempted to be done in the present action. The plaintiff’s predecessor, at the time' that she brought the action for an accounting, was not ignorant of the misappropriation, as already stated. She may have been ignorant of the fact that others were interested in the misappropriation besides the surviving partner ; and this might have afforded a reason for relief from the judgment against the surviving partner, upon proper proceedings for that purpose. But it forms no ground, after ratifying the misappropriation by the one party by obtaining a money judgment, for the obtaining of another money judgment, against another party, for the same cause of action.

We are of opinion, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Follett, J., concurs.


author: Follett, J. O’Brien, J.

text:
    Andrew Morris, Resp't, v. The Eighth Avenue Railroad Company, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March, 17, 1893.)

    1. Negligence—Street railroads—Evidence.
    In an action for damages for injuries caused by being run over by defendants’ street railroad car, it was contended that plaintiff was drunk at the time of the accident, and plaintiff’s employer was asked if, during the time of plaintiff’s employment, he had occasion, at any time, to lay him off for drinking beer. Meld, that the question was properly refused as too indefinite as to time or circumstance.
    3. Same—Contributory—Intoxication .
    The plaintiff requested the court to charge “that if the jury find from the evidence that the plaintiff was intoxicated, that is a matter of no consequence, unless the jury further find that his intoxication contributed to the injury.” The court answered: “That is so. The intoxication is of no consequence, unless it made him more careless.” Meld, that the jury could not have understood from the word “ more ” that the court intended to instruct them that the plaintiff might have been somewhat careless and still recover, as they had been already instructed that any negligence of the plaintiff, contributing to the injury, would defeat a recovery.
    3. Same.
    A railroad corporation is not exempted from damages for injuries received while riding on a platform, unless there is at the time sufficient room for the proper accommodation of the passengers inside the car.
    4. Same—Damages.
    It appeared that plaintiff had been employed as a mason’s tender, at two dollars per day, when he was able to secure work. Meld, that a verdict of $9,000 was excessive. (O’Brien, J., dissents.)
    Appeal from, a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial in an action to recover damages for personal injuries.

      John M. Scribner, for app'lt; G. Washbourne Smith (Nelson Smith, of counsel), for resp't.
   Follett, J.

At about half past seven o’clock of evening, September 27, 1890, at the corner of Eighth avenue and Forty-first street, one of the defendant’s cars passed over the plaintiff’s right leg, crushing it near the ankle, so that amputation was necessary. The plaintiff alleged that he signaled the driver, that the car was stopped, and while he was entering by way of the front platform, the car was suddenly started, and he was thrown under the wheel. At this time the car was moving south. The plaintiff left the east sidewalk of the avenue, and attempted to board the car as it crossed Forty-first street. But two questions of fact were litigated: (1) Was the car in motion when the plaintiff attempted to board it ? (2) Was the plaintiff intoxicated at the time of the accident?

The plaintiff, Fisher, Maloney and McDowell testified that the oar was standing still when the plaintiff began to get on to it Two of the defendant's witnesses so testified—Radley and Mc-Faden. The only witnesses who testified that the car was moving when the plaintiff attempted to enter it were the conductor and driver. Several of the witnesses who testified that the car was not moving when the plaintiff began to get on to it had no apparent interest in the result of the trial, or feeling for or against either litigant, and it cannot be said that this issue was found contrary to the weight of evidence. The plaintiff and four witnesses testified that he was not intoxicated at the time of the accident. Radley, a witness sworn for the defendant, testified that the plaintiff, in passing from the sidewalk to the car, walked unsteadily, and appeared to be intoxicated. Gfiblin, a policeman, testified that the plaintiff acted like a man under the influence of liquor. The car driver testified that he might be slightly intoxicated, “but, then, I could not rightly tell.” Opposed to this was the evidence of the four witnesses referred to, one of whom was a surgeon who examined the plaintiff as he lay on the sidewalk, and the other three had better opportunities for knowing the condition of the plaintiff than the defendant’s witnesses. Whether the plaintiff was or was not intoxicated was a question for the jury, and its verdict should not be disturbed.

There was some dispute over the question whether the car was crowded upon the occasion. The defendant insists that it was not, and that it was negligent for the plaintiff to attempt to enter the car by the front platform. Defendant’s conductor testified that ten seats were unoccupied, while, on the other hand, Fisher swore that the car was very full; and McDowell, that it was so crowded people were standing between the seats. This issue was a fair question for the jury. In brief, every essential fact necessary to support the verdict was sufficiently established so that it cannot be set aside as against the weight of evidence. There was no error in the refusal of the court to dismiss the complaint when the plaintiff rested, or at the close of the evidence. •

The appellant insists that the court erred in refusing to permit the witness Delelianty to answer the following question ; “ Question. During the time of the plaintiff’s employment by you, did you have occasion, at any time, to lay him off for drinking beer? Objected to by plaintiff’s counsel. The Court: I think that is too remote. Defendant’s counsel: I can’t fix it on the day that the accident happened, as I expected from this witness, but I propose to show that, on more than one occasion, that he had been laid off by reason of his use of beer. The Court: That might be quite true, and not touch this case. I exclude that.” To this ruling the defendant excepted. The witness testified that the plaintiff had been in his employ for two years, and we think that the question was not sufficiently definite, as to time or circumstance, to make the refusal of the court to permit it to be answered error. The defendant did not offer to show that the plaintiff was a man of intemperate habits, nor that he had drank too much on any particular occasion, near to or remote from the date of the accident

Upon the question of intoxication the court charged, at the defendant’s “ If the jury believe, from all of the evidence in this case, that the plaintiff, at the time of his injury, was intoxicated, and. if the jury believe that the plaintiff’s intoxication caused, or contributed to produce the injury received by him, then the plaintiff cannot recover, and the defendant is entitled to a verdict.”

The plaintiff requested the court to charge: “ That if the jury find from the evidence that the plaintiff was intoxicated, that is a matter of no consequence, unless the jury further find that his intoxication contributed to the injury. The Court: That is so. The intoxication is of no consequence, unless it made him more careless.” To this instruction the defendant excepted. It is conceded that if the word “ more ” had been omitted the instruction would have been unexceptionable. We do not think that the jury could have understood from the word “ more ” that the court intended to instruct them that the plaintiff might have been somewhat careless, and still recover; for the jury had been instructed that any negligence of the plaintiff, contributing to the injury, would defeat a recovery, and that the burden was upon him to show that he was not negligent.

The appellant insists that the plaintiff cannot recover because he was riding on the platform of the car in violation of the printed regulations posted on the car pursuant to § 53, chap. 565, Laws 1890. Assuming that this section is applicable to street railways, which we do not decide, the answer to the position is that the plaintiff was not voluntarily riding on the platform, but was simply using it as a means of entering the car. Besides, the corporation is not exempted from damages for injuries received while riding on a platform, unless there is a.t the time sufficient room for the proper accommodation of the passengers inside the car. Whether this car was crowded or not was a disputed question of fact.

The verdict in this case was for $9,000. The evidence shows that the plaintiff had been employed for two years as a mason’s tender, receiving two dollars per day when he was able to secure work. The verdict, at five per cent interest, represents an earning power of $450 ; considerably more, probably, than the plaintiff could have earned. He was entitled to be compensated for the pain and suffering which he had endured, and for his diminished ability to earn money in the future. The interest on the verdict indemnifies the plaintiff for his diminished earning power, and the principal sum is in addition. This, we think, is more than compensatory damages, and that a verdict of $5,000 is all that the evidence warrants. The judgment and order are reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates, within twenty days after the entry of the order, to reduce the amount of the damages to $5,000, in which event .the judgment, as modified, and the order are affirmed, without costs to either party.

Van Brunt, P. J., concurs.

O’Brien, J.

I concur in all but the conclusion. The facts warrant a recovery for the amount awarded by the jury, and I think the judgment should be affirmed.


author: O'Brien, J.

text:
    The McElwee Manufacturing Co., Resp't, v. Benjamin A. Trowbridge, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Bills and notes—Set off.
    In an action on two promissory notes, the answer alleged that they were given upon representations which were not fulfilled, and that by reason thereof the defendant sustained damage, lleld, that the defense was not a counterclaim, but an offset.

      2. Corporations—Proof of incorporation.
    Under § 1776 of the Code it is unnecessary for a foreign corporation plaintiff to prove its corporate existence where the answer simply denies knowledge or information sufficient to form a belief as to its incorporation.
    3. Evidence—Agency—Transactions with deceased agent.
    It having appeared that a witness while acting for plaintiff had been referred, by defendant to one Y., since deceased, as his agent it is proper to allow such witness to testify as to what occurred between himself and Y. at their meeting.
    Appeal from judgment entered on verdict for plaintiff in an action brought to recover the amount of two promissory notes.
    Defendant’s answer set up two defenses. The first consisted of denials of plaintiff’s allegations; the second was as follows: “And for second, separate, and distinct defense herein defendant shows: That whatever note or notes were given to or obtained by said Don A. Gaylord & Co. were given and obtained under and by virtue of certain promises and undertakings by said Don A. Gay-lord & Co. to defendant, made to obtain possession of said notes, which promises and undertakings were not fulfilled. That defendant had a contract with said Don A. Gaylord & Co. to furnish certain material for premises in the city of New York, on which he was then building. (2) That under such contract defendant paid said Don A. Gaylord & Co. large sums of money both in cash and by notes, which latter have all been paid except the last-two. That, when the last two notes were given,- Don A. Gay-lord & Co. were behind with materials, under their contract, and had been notified in writing that defendant would purchase elsewhere, and hold them for the difference. That Don A. Gaylord & Co. then and there promised, if the said notes were given, they would deliver the short material that very day, and that no further delay should occur. That upon these representations said notes were given, and Don A. Gaylord & Co. did not fulfill their agreement, and did not deliver the material as agreed, but sold the same to other parties for cash. That by reason of the breach of contract by Don A. Gaylord & Co. the defendant sustained damage, by reason of the delay and loss of. income from said property, exceeding in amount the sum of $1,000.”

      B. C. Chetwood, for app'lt; John E. Eustis (George S. Coleman, of counsel), for resp't.
   O'Brien, J.

This action is brought to recover the amount of two promissory notes, the consideration of which was the ing of materials to be used in the construction of certain houses, and the defense to which was that this contract was never fulfilled, and that the material furnished was fully paid for. As there is no order denying a motion for a new trial, and no statement that the case contains all the evidence introduced at the trial, the only -questions presented for our consideration are those of law, arising upon exceptions, which, in the order in which they are presented, we will briefly consider.

The answer having set up what defendant insists was a counterclaim, and no reply being made thereto, the defendant moved for judgment on the pleadings, which he now claims it was error not to have granted. We have examined the answer, and agree with the trial judge that it does not contain a counterclaim, no affirmative relief being demanded thereon, and being pleaded as a defense, and treated as an offset.

At the close of plaintiff’s case, defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff was a foreign corporation, and that there is no proof whatever of its incorporation. The trial judge at first inclined to the view that this motion must be granted, on account of the statement in the opinion upon the former appeal, 62 Hun, 471; 43 St. Rep., 238, that the plaintiff having assumed the burden of proving the incorporation, “ the objection that the incorporation of the plaintiff was not established would have been well taken,_ had not improper evidence, proving the incorporation, been admitted without objection ; ” no claim being made that there was any such issue. By § 1776 of the Code of Civil Procedure, it is provided that “plaintiff need not prove upon the trial the existence of the corporation, unless the answer is verified, and contains an affirmative allegation that the plaintiff * * * is not a corporation.”

The case of Vulcan v. Myers, 58 Hun, 161; 34 St. Rep., 122, in construing this section in connection with § 1779 of the Code, held that the former section was equally applicable to foreign as well as to domestic corporations. Unless, therefore, there is an affirmative allegation that the plaintiff or the defendant, as the case may be, is not a corporation, the existence of the corporation need not be proved. Here the answer alleged that defendant “ has no knowledge or information sufficient to form a belief ” as to the organization of the plaintiff as a foreign corporation. In the case referred to, Vulcan v. Myers, the answer contained the following denial: “ Upon information and belief, it is denied that plaintiff ever was, or now is, a corporation.” This latter was held insufficient to put plaintiff to its proof, and we think the form of denial in the present answer is much weaker; and under the authority of that case, which construes the sections of the Code, and shows just when proof of organization must be made, it cannot be held that proof of incorporation is required.

The, next exception réfers to error assigned by appellant in admitting, over objection, evidence as to a settlement An examination of the record, however, will show that while the court asks a question as to whether any proposition was received from the defendant, which was objected to, the answer, which was “ Yes, sir,” cannot be held to have prejudiced the defendant. The subsequent testimony of what actually occurred was not objected to ; and while, in a proper case, we are disposed to enforce the rule, as held in Slingerland v. Norton, 58 Hun, 578; 35 St. Rep., 426, that negotiations or proposals looking towards the settlement of a controversy without action cannot be received in evidence as admissions of liability, still this rule does not extend to the admission of a disputed fact, even though made in the course of such negotiations. The evidence adduced was not for the purpose of showing a compromise, or an offer to compromise, but it called out a statement of fact as to defendant’s liability, as shown by such statement. Taking, however, appellant’s view, that it was evidence as to a settlement, such evidence was received without objection, and thereafter no motion was made to strike it out.

In addition, certain criticisms are made upon the charge of the trial judge, but, as no exceptions were taken thereto, no question is presented for our consideration. Thus it is claimed that the judge, in his charge, dwelt on the giving of the notes by a deceased agent, with knowledge of Gaylord’s shortcomings, and that this prejudiced the defendant, by making the case turn on evidence given by Gaylord, in his own behalf, of personal and private-transactions between him and the deceased, which could not be contradicted, and should have been excluded. While, in the absence of an exception, no question is raised upon the judge’s charge, the evidence given by Gaylord as to his interviews with the agent of the defendant, who has-since died, was objected to; but the point thus presented we do not regard as serious.

As appears from the record, Gaylord testified that he saw the defendant and asked him for the final payment, and that the defendant told him to see Mr. Yenni, and get it fixed up, and arrange a settlement; that he thereupon called upon Mr. Yenni; and it was to the question, “ What matters did you discuss at that interview ? ” that the objection was made, and the exception taken. No ground of objection was given, but if we take the one now presented, that it was incompetent and improper to have allowed Gaylord to testify to conversations had with the agent of the defendant, the latter being since deceased, it is evident that there is no merit in the objection. It had been made to appear that Yenni was the defendant’s agent, and, as we have seen from what just preceded the giving of this testimony, Gaylord stated that the defendant told him to see Yenni, and make the arrangements with him. Under such circumstances, it was competent to show just what occurred between Gaylord, who was acting for plaintiff, and Yenni, who was concededly the agent of the defendant, and to whom Gaylord had been referred by the defendant himself.

Upon an examination of the record, we do not think that any of the exceptions are valid; and the judgment, therefore, should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concur.


text:
    Etoile De Loraz, Resp't, v. Fanny Davenport McDowell, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Master and servant—Breach of contract—Subsequent offer of employment.
    It is no defense to an action for breach of a contract of employment as an actress for a term of twenty-eight weeks that defendant, subsequent to the discharge, offered employment to plaintiff “ for her season,” where she at the same time refused to bind herself for twenty-eight weeks or any definite time, although proper to be considered on the question of damages.
    Appeal from judgment entered, on verdict directed by the court, and from order denying motion for new trial.

      I. M. & A. J. Dittenhoefer, for app'lt; George M. Pinney, Jr., for resp't.
   O'Brien J.

This action was brought to recover damages for breach of a contract of employment Plaintiff was engaged by the defendant in London, in August, 1890, to perform in the United States the part of “ Iras ” in the play of “ Cleopatra,” for a season of twenty-eight weeks, commencing October 21, 1890. She was discharged on the 18th of August, whereupon this action followed, claim being made for her salary for the entire twenty-eight weeks. The engagement and discharge were not contested on the trial, but, as a defense, evidence was introduced to show that, subsequent to the breach, defendant requested the plaintiff to come from England to this country, upon an offer to take parts in plays other than “Cleopatra,” until such time as the latter was produced. This offer was cabled to plaintiff, and agreed to, provided the engagement should be for twenty-eight weeks certain ; and thereupon the position of the defendant was defined in a letter from the counsel of the defendant, to the counsel for the plaintiff, as follows:

11 Without acknowledging an agreement, and for the purpose of avoiding litigation, Miss Davenport will take Miss De Loraz for her season commencing about the 28th of October, on the terms and salary Miss Davenport informed Miss De Loraz she would be willing to execute an agreement. She will not bind herself to 28 weeks, tllough the prospect is that the season may last that long. She is to appear in such plays as Miss Davenport may produce prior to ‘ Cleopatra,’ and subsequently in 1 Cleopatra.’ ”

The respective positions of the parties at this date, therefore, were that the plaintiff was willing to modify the agreement so as to take part in plays other than “ Cleopatra,” provided the engagement was for the same definite period of 28 weeks. Defendant, however, refused to make the engagement for 28 weeks certain, as was provided in the original agreement, or to name any definite time for the duration of the proposed new engagement. This being the condition of the evidence at the close of the case, the defendant moved for a direction of a verdict in her favor, which was denied, and subsequently the plaintiff moved for a verdict, which was granted. No request was made by the defendant to go to the jury upon any question whatever, the case being treated by her and her counsel as raising only a question of iaw, to be passed upon by the court. It remains, therefore, for us to determine upon this record whether the indefinite offer made by defendant is a defense to the plaintiff’s entire cause of action; for the defendant, having treated the question as one of law only, and having made no request to be allowed to go to the jury, cannot now urge her offer in mitigation of the damages, as distinguished from a complete defense. The learned trial judge, in disposing of the case, said:

The defendant's season might not have lasted long enough to reimburse the plaintiff for her passage money. The plaintiff was willing to come for the originally stipulated period ; but this the defendant refused; and the offer was not even for a less period definitely specified, but for the defendant's season, which might have been long or short, according to the defendant’s success or caprice.”

Whitmarsh v. Littlefield, 46 Hun, 418; 11 St. Rep., 815, holds that no duty is imposed upon one complaining of a breach of a contract to surrender all his rights under his agreement, and accept a new and different contract, with a view to reduce the damages. The rule of law contended for by the appellant is undoubtedly sound that, when a servant is wrongfully discharged, he must make reasonable efforts to obtain other employment, and credit the master with the amount earned by him in reduction of damages. He is not bound to accept employment of a different character, though it need not necessarily be of exactly the same kind or at the same salary. No fault is to be found with this statement of the rule, but, upon the case as it is presented on appeal, it has no application. If the defendant, instead of moving for a verdict, had requested to go to the jury upon the damages, then there might be presented a situation calling for the application of the rule. As already noticed, however, the defendant did not rely upon the plaintiff’s refusal to accept another and different contract of employment as a plea in mitigation of the damages 'suffered by the plaintiff, but as an absolute defense to the entire cause of action. In other words, the defendant seeks to maintain that a contract for an indefinite period, terminable at her own will, is as good in the eye of the law as a contract for a certain definite period. This statement alone sufficiently disposes of appellant’s contention. Nor is there anything in the case of Bigelow v. Am. Forcite Powder Mfg. Co., 39 Hun, 599, which is in conflict with this view, or with the rule as laid down in Whitmarsh v. Littlefield, supra. We think, therefore, that, both sides having requested the court to pass upon any questions of fact that may have been in the case, and both having relied upon their right to have a verdict directed in their favor, and, as shown, the defendant not being entitled to have such motion granted, and no request having been made to go to the jury upon the question of damages, it was proper, upon the case as it then stood, for the court to direct a verdict for the plaintiff, and in this disposition we can find no error. As there are no other questions presented upon this appeal, the judgment must be affirmed, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.


author: Follett, J.

text:
    Mary Reid, Resp't, v. The Mayor, etc., of City of New York et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Witness—Credibility.
    A jury is not bound to believe an interested witness, but they may.

      2. Negligence—Notice of claim—Laws 1891, chap. 128.
    Section 8, chapter 128, Laws 1891, which provides that the cities of New York and Brooklyn are not liable for accidents on the bridge, and that notice of claims for damages must he presented to the trustees of the Brooklyn bridge within six months after the cause of action arose, does not apply to causes of action which accrued before its enactment.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying motion for a new trial.

      William H. Clark and Almet F. Jenks (Theodore Connoly and Terence Farley, of counsel), for app'lts; Charles J. Patterson, for resp't.
   Follett, J.

On the 17th of February, 1890, the defendants undertook to carry the plaintiff in a car from New York to Brooklyn, via the New York and Brooklyn bridge. When the, car reached Brooklyn it was stopped for the purpose of discharging the passengers. As the plaintiff was stepping from the car to the platform of the bridge, or immediately after she had stepped upon the platform, she fell, breaking her left arm near the wrist These facts were undisputed on the trial. The plaintiff alleged in her complaint, and testified on the trial, that, as she was about stepping from the car, it was suddenly started, and she was thrown on to the platform of the bridge, and thereby injured. She was corroborated to some extent by an acquaintance who left the car immediately before her, and who, from her position, was able to see part, but not all, that occurred.

The plaintiff and her companion were the last, or nearly the last, persons who left the car, and both testified that the conductor told them to hurry off, or he would start the car; and the plaintiff further testified that the car started just as she was in the act of stepping off from it to the platform. The conductor, who was sworn for the defendants, testified: I saw Miss Eeid (this lady) get off, and as the train was in motion I called to her not to get off, and I jumped over and caught her by the arm to prevent her from falling ; I stepped off on the platform with her, and saw that she did not fall; then got back on my train again; I was the only conductor that was,on that car at the time ; I did not call out to Miss Eeid to get off the train or I would start it, or any words to that effect. '* * * Miss Eeid did not fall upon the platform as she alighted from the car.”

Other witnesses sworn in behalf of the defendants testified that the plaintiff’s fall was caused by her stumbling against a drunken man. The defendants’ witnesses denied that the conductor directed her to hurry off, and also denied that she fell in the act of alighting. They testified that she fell just as she stepped upon the platform, but that it was caused by contact with the intoxicated person. Whether her fall was caused by the motion of the car or by a collision with a drunken person was a question of fact, which was fairly submitted to the jury, and they found for the plaintiff upon evidence sufficient to sustain the verdict. Authorities are cited that a jury is not bound to believe an interested witness. This is true, but they may, and they did in this case. The plaintiff’s testimony was in some of its important features corroborated by disinterested witnesses. The evidence is that the injuries sustained were severe, their consequences permanent, and the verdict for $3,000 should not be set aside, nor reduced as excessive. The evidence does not show that the motion of the car was so rapid that it was negligence on the part of the plaintiff to attempt to alight under the circumstances testified to- by her and by her companions.. The question of contributory negligence was for the jury. The cases cited, of which Hunter v. C. & S. V. Railroad Co., 112 N. Y., 371; 21 St. Rep., 1, and 126 N. Y., 18; 36 St. Rep., 367, is a type, holding that it is negligence per se for a person to get on or off a moving car, propelled by steam, at given rates of speed, have no application to the facts of this case.

The learned counsel for the defendants urge that by chapter 128 of the Laws of 1891, which was passed and took effect April 2, 1891, the defendants were relieved from liability for the accident, and the liability, if any, was cast upon the trustees of the bridge. This act was passed thirteen and a half months after the accident, and more than nine months after issue was joined in this action, and it contains the following provisions:

“ Section 7. Neither the mayor, aldermen, and commonalty of the city of New York, nor the city of Brooklyn, shall be liable hereafter for any matter or thing or claim or demand growing out of the New York & Brooklyn Bridge. The trustees of the New York & Brooklyn Bridge shall succeed to all liabilities of the two cities growing out of the bridge; and all claims and demands growing out of the bridge upon contracts and for negligences and for wrongs which heretofore might be prosecuted against the two cities, or either of them, shall be prosecuted against the trustees of the New York & Brooklyn Bridge, and they shall be liable therefor in their corporate capacity, and they shall sue and defend all actions and proceedings in and by their corporate name, 1 The Trustees of the New York & Brooklyn Bridge,’ and shall pay all damages and judgments out of the moneys they receive for tolls, fares and rents. Sec. 8. No action upon a contract, or for negligence or a wrong, shall be prosecuted or , maintained against the trustees, unless the claim or demand shall have been presented to the trustees, in writing, at least thirty days before the commencement of the action or special proceeding, and within six months after the cause of the action accrued, nor unless these facts appear in the complaint. The residence or place of business of the claimant shall be stated in the notice. * .* * Sec. 10. An action against the trustees to recover for a personal injury resulting from, negligence or a wrong must be commenced within two years after the cause of action'accrued.”

In the view we take of this act, it is not necessary to consider the constitutionality of a statute relieving a corporation from a liability already accrued, and providing that it shall be discharged by some other corporation or body. It is a well settled rule of construction that a statute is not to be deemed retroactive in its effect unless it clearly appears that it was the intention of the law making power that it should relate to past transactions. People v. McCall, 94 N. Y., 587.

Section 8, chap. 128, Laws 1891, above quoted, provides that notice of claims for damages must be presented to the trustees of the bridge within six months after the cause of action arose. This cause of action arose February 17, 1890, more than thirteen months before the chapter referred to was enacted, so that it was impossible for the plaintiff to give a notice in time to enable her to maintain an action against the trustees. If the defendants’ construction of this act is correct, that it is retroactive, it would have the effect of relieving the cities from liability without providing any means of redress for injuries already sustained. We think it is clear from the terms of the statute that such was not its effect, and that no such result was intended by the legislature. Had the legislature intended that the cities should be exempted from liabilities already accrued, and those liabilities imposed on the trustees, a provision to that effect would have been inserted in the statute. There is no provision of law by which the plaintiff in this action could have had the trustees of the bridge substituted in the place of the cities as parties defendant, without the consent of the trustees, which apparently has not been given; at least neither the defendants nor the trustees have moved that the latter be substituted as defendants in the place of the cities.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., and O'Brien, J., concur.