author: McAdam, J.

text:
    The Pottier & Stymus Mfg. Co., Resp’t, v. Auguste Noel, App’lt.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    Assignment—Proof of.
    Defendant set up a counterclaim in favor of a firm of which he was a member, which he alleged had been assigned to him. The alleged assignment was oral, and consisted merely of a statement made by defendant to his partner that he would transfer the indebtedness over. There was no-delivery of anything and the account was not even charged against'defendant. Hdd, not sufflcient'to establish an assignment of the claim, and that the referee properly disallowed the counterclaim.

      Appeal by defendant from judgment entered on report of referee in favor of the plaintiff.

      Abram Kling, for app’lt; Charles M. Hall and Elbert Crandell, for resp’t,
   McAdam, J.

The answer admitted the cause of action, and pleaded a counterclaim of $803.06 in favor of A. Noel & Son (a copartnership -firm composed of the defendant and his son), under a transfer alleged to have been made by that firm to the defendant before the commencement of the action. The' reply put in issue both the counterclaim and assignment.

The referee, although requested by the defendant, refused to find as matter of fact that any assignment had been made as alleged. This is tantamount to an affirmative finding that no transfer was ever made in fact. If this finding is justified by the evidence, it becomes unnecessary to consider any of the other questions in the case, because if there was no assignment the joint demand in favor of the firm of A. Noel & Son could not be used as a counterclaim to an action against A. Noel, individually. Hopkins v. Lane, 87 N. Y., 501; Code, § 501. The assignment was oral, not in writing, and in such a case whether what was said amounts to an assignment depends upon the intention of the parties and what was done by them in furtherance of such intent.

In Sheridan v. The Mayor, etc., 68 N. Y., 30, the assignment was in writing, duly executed and acknowledged; hence that case is not applicable. The owner of a cause of action may give it away, and the assignee is entitled to judgment thereon. Mills v. Fox, 4 E. D. Smith, 220; Beach v. Raymond, 2 id., 496; Richardson v. Mead, 27 Barb., 178; Burtnett v. Gwynne, 2 Abb. Pr., 79. In those cases as in the Sheridan case, formal transfers sufficient to pass title were executed, and the court held the consideration therefor immaterial. Notes not negotiable have been held to pass by delivery where there was an intention to part with title. Judgments and accounts have been transferred by delivery of the transcript, or bill of items, where an absolute transfer was intended, and so in many other cases effect has been given to symbolical deliveries, and to unequivocal acts evidencing an intention to pass title.- But in this case there was no delivery of anything., Indeed there was not even a charging up of the account against the partner receiving the transfer. Vail v. Tuthill, 10 Hun, 31. Here, the transaction, whether it be called a gift, sale, assignment or .transfer, is not evidenced by any symbolical or constructive delivery or by any unequivocal act of the parties. In this instance, the alleged assignee merely said to the assignor, in substance, “ that he would transfer the indebtedness over," the amount was not stated, but that the claim against the plaintiff was mentioned. The evidence technically construed would indicate a purpose on the part of the defendant to transfer to the son, rather than an intent on the part of the latter to transfer to the former, but no matter which way it is interpreted, it does not establish an assignment sufficient to pass title. The element of “ intent ” runs all through the cases, and .this is generally a question of fact, Ram on Facts, 1st Am. Ed., 1, 275; Benjamin on Sales, § 309, and the referee has decided it adversely to the defendant, on the evidence of the assignor, a relative and interested party, whom he was not bound to believe. Kavanagh v. Wilson, 70 N. Y., 177. For the reasons stated the judgment appealed from must be affirmed, with costs.

Freedman, P. J., and G-ildersleeve, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Samuel A. Sawyer et al., App’lts, v. Siegfried Gruner et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    • Duress—Coffee exchange.
    ■Plaintiff was a member of the Coffee Exchange, the by-laws of which provided that a member who fails to comply with his contracts or is insolvent should be suspended until he had settled with all his creditors, and that his insolvency should be announced and notice thereof posted. Defendants refused to accept a tender of goods on the ground that plaintiffs had failed to comply with some, of the rules under which the conti act was made, and the matter was referred to the board of managers, which decided that plaintiffs were in default and should settle on certain terms. Plaintiffs were,not insolvent. Held, that the board had no jurisdiction to act in the matter or to enforce their decision, and that moneys paid by plaintiffs in pursuance thereof could not be held to have been paid under coercion.
    Appeal from a judgment entered in favor of the defendants upon the report of a referee.
    The following is the opinion of the referee :
    I agree with the learned counsel for the plaintiffs, that the governing committee of the exchange had no. jurisdiction, under the by-laws, to determine the controversy between these parties, or the rule by which damages, payable by the plaintiffs, should be assessed, and that there was no such submission of the controversy to the arbitrament of the committee as gave to their resolution of July 6th the effect and force of an award, and that their action on August. 23rd was rendered wholly nugatory, as against the plaintiffs, by the grossly, improper participation therein of the defendant Arens. The plaintiffs’ right*to recover in this action dependsj in my judgment, upon the single question whether the payment made by them to the defendants on August 24th was made “ under duress and compulsion,” as they allege in their complaint
    A contract obtained by coercion or undue influence may be avoided, and money paid under compulsion, unjustly exercised, may be recovered back.
    Where a payment is voluntarily made, with knowledge of the facts, the party paying is concluded by his own act, and the law is powerless to restore to him his money. But “ to constitute a voluntary payment, the party paying must have had the freedom of exercising his will. When he acts, under any species of compulsion, the payment is riot voluntary.” Scholey v. Mumford, 60 N. Y., 501. Where “ there exist coercion, threats, compulsion and undue influence, there is no volition.” Barry v. Equitable L. A. Society, 59 N.Y., 592. McPherson v. Cox, 86 N. Y., 472, was an action upon a bill of exchange made by the master of the defendants’ vessel, of which the plaintiff was the charterer, and which was laden with cotton and ready to sail for Liverpool. The plaintiff was also the defendant’s agent, through whom alone a custom house clearance for the vessel could be obtained. A dispute over freight moneys arose between the master and the plaintiff and the latter refused to procure the clearance or permit the vessel to proceed upon her voyage, unless the bill on which the suit was brought was signed. It was held that the bill was obtained by duress, and that there could be no recovery. The court said: “The plaintiff was the agent of the owners of the vessel, the shipper and consignor of the goods. He, and no other person, could get clearance for the vessel at the custom house, and that exclusive power, and refusal to exercise it was constraint. * * * The
    confinement, by reason of the plaintiff’s refusal to do the thing which should clear or let go the vessel, was as coercive and difficult to resist as an actual seizure or imprisonment would have been.” The same rule was declared in Stenton v. Jerome, 54 N. Y., 485, where bonds of the plaintiff were held by the defendant, who threatened a sale of them unless the plaintiff paid a sum demanded which was in excess of what she admitted to be due. To prevent the sale the plaintiff complied with the demand. The court said that the payment was not voluntary, that it was procured by duress of goods, and was no more voluntary in the eye of the law than if procured by duress of the person.
    In Sioift Company v. United States, 111 U. S., 22, the complainants, in order to continue their business, had been compelled to submit to certain orders and rules of the Internal Revenue Bureau relating to the purchase of revenue stamps for use upon goods manufactured by them, whereby they alleged they had sustained loss and injury. Judge Matthews said-: “ The question is whether the receipts, agreements, accounts and settlements made in pursuance of that demand and necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. We cannot hesitate to answer that quéstion in the" negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction or discontinue its business. ' It was in the power of the officers of the law, and could do only as they required. Money paid cr other value parted with under such pressure has never been regarded as a voluntary act within the meaning of the maxim, volenti non jit injuria."

    The rule is asserted in a multitude of authorities of the highest character and is common law in all the states. It rests upon the wholesome atid just principle that a party who is enabled by circumstances to exercise a controlling influence over the will, conduct and interest of another shall not be permitted to make use of his position for purposes of extortion or oppression. Adams v. Irving National Bank, 116 N. Y., 613; 27 St. Rep., 733; Secor v. Clark, 54 Super. Ct., 499.
    It is plain, however, from all the cases that a court can grant relief only when duress or compulsion “ must have been illegal, unjust and oppressive." Dickerman v. Lord, 21 Iowa, 338.

      The duress must have amounted to “ that degree of constraint ■or damage, either actually inflicted or threatened and impending, which is sufficient, m severity or apprehension, to overcome the mind and will of a person of ordinary firmness.” Brown v. Pierce, 7 Wall., 214: United States v. Huckabee, 16 id., 431.
    It must be exerted “ under circumstances sufficient to influence the apprehensions and conduct of a prudent business man.” Robertson v. Frank Brothers Co., 132 U. S., 23. “To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another from which the latter has no other means of immediate relief than by making the payment.” Radich v. Hutchins, 95 U. S., 210.
    There must be something more than threat and peril of pecuniary loss. Secor v. Qlark, 117 N. Y., 353; 27 St. Rep., 169. The case of Silliman v United Stales, 101 U. S., 465, is instructive upon this point. The claimants were the owners of certain barges which they had chartered to the government, and for the use of which they were to receive an agreed rate of compensation so long as the government should retain the barges in its service. Sopn after the original agreements were made, the department in charge demanded that the claimants should execute new charter parties by which the rate of compensation would be materially reduced. Of this, Judge Harlan says: “ It (the department) announced its purpose to retain possession and withhold all compensation unless and until the claimants executed the proposed new charter parties. In other words, the department informed claimants that it would not comply with the provisions of the original contracts unless the claimants would submit to material ■alteration against their interests and to the advantage of the government.”
    This the claimants refused to do. They demanded possession ■of their vessels, but their demand was not complied with. “ Instead (says Judge Harlan) of seeking the aid of the law, claimants, with a full knowledge of their legal rights, executed new charter parties, and from time to time received payments according to the rates prescribed therein, protesting when the new agreements were signed that they were executed against their wishes and under the pressure of financial necessity. They now seek the aid of the law to enforce their rights under the original charter parties upon the ground that those last signed were executed under such circumstances as amounted in law to duress. Their claim was held to be without foundation. There was no threat of injury to their persons or to their property, to avoid which it became necessary to execute new charter parties. Nor were those charter parties executed for the purpose or as a means of obtaining possession of their property. They yielded to the threat or demand of the department solely because they required, or supposed they required, money for the conduct of their business or to meet their pecuniary obligations to others. Their duty, if they expected to rely upon the law for protection, was to disregard the threat of the department and apply to the courts for redress against its repudiation of a valid contract. * * * There is present no element of duress, in the legal acceptation of that word. ”

    Applying these principles, I am unable to find in the facts of the case in hand evidence of such coercion of the plaintiffs by the defendants as will warrant a finding that the payment of August 24th was not a voluntary payment, but was made under duress, or as the only means of immediate relief from threatened and impending danger.
    The plaintiffs’ case is stated in their complaint as follows: They had contracted with the defendants to deliver certain quantities of coffee during June, 1888. They had made or tendered full performance of their contracts, which the defendants had refused to accept, alleging that the acts and offers of the plaintiffs were ineffective for lack of observance by them of certain by-laws of the Coffee Exchange, under and subject to which the said contracts had been made. A controversy had arisen between the parties which had been submitted "to the consideration of the board of managers of the exchange, and that board, after hearing the case, had adopted a resolution which declared that, “in their opinion,” the plaintiffs were in default upon their contracts, and that, “ in their opinion,” the plaintiffs should settle with the defendants upon terms stated in said resolution. This the plaintiffs declined to do; and afterwards, through the action of the defendants, a second hearing was had before the managers, which resulted in a re-adoption of the former resolution, without amendment in either of the particulars above referred to, and a notice to the plaintiffs that “this opinion is the final decision of the board.” As already stated, the board of managers (the governing committee), had no jurisdiction under the by-laws to decide this controversy, and their resolution had no force as an award. It was the mere opinion of less than a majority of a bare quorum of the managers, and was adopted by the casting vote of Arens, who was one of the complainants and prosecutors before the board. It was incapable of enforcement by any process or proceeding, summary or otherwise.
    By the sixty-fourth by-law of the exchange it was provided as follows: “ Any member who fails to comply with his contracts, or who becomes insolvent, shall be suspended until he has settled with all his creditors. Such member shall immediately inform the manager in writing that he is unable to meet his engagements, and the manager shall thereupon immediately announce from the rostrum the insolvency of such member, and shall also post for the space of five days. The secretary shall record the failure of such member in a book kept for that purpose.” Then follows the form of notice to be posted: “Members of this exchange are hereby notified of the inability of to meet mercantile obligations. All contracts with must therefore be closed as provided in section 66 of the by-laws.” Section 66 provides, that “the official notice of the failure of a member shall operate as an immediate closing of all outstanding contracts between that member and other members of the Exchange. All such contracts shall be liquidated and settled at the average quotation of like contracts made on the day of the failure, etc.” I believe that both of the learned counsel agree that the sixty-fourth by-law applies only to cases of actual insolvency. That being so, its provisions could not be invoked by these defendants in aid of the resolution, of the board of managers, for no suggestion, in any form, is made that Sawyer, Wallace & Co. were not abundantly able to meet all their obligations, and the testimony of Mr. Sawyer is that the firm were solvent. They were large dealers, and on the 23d of August had other outstanding coffee contracts, aggregating about 30,000 bags. They did business also on the Cotton and Produce Exchanges, and in the western and southern markets, and in Germany, France, Belgium and Great Britain.
    The complaint contains this allegation: “ That said plaintiffs made such payment under duress and compulsion. That if they had refused to do so, they would have been, as they then verily believed, and now believe, posted under the by-laws as having failed, whereby all outstanding contracts to which they were parties would have been immediately closed, their credit both in this country and in Europe would have been seriously impaired, and they would, in consequence, have suffered irreparable pecuniary damage.” Mr. Sawyer testified that they made the payment “because we feared that the next step of the board of managers would be to post us and discipline us, the consequence of which to us would have been far more serious than the loss of the $8,500.”
    Was there any reasonable ground for such an apprehension on the part of the plaintiffs? Was there any reasonable ground for a belief that the board of managers would proceed either to enforce a decision which they had no jurisdiction to pronounce, or to punish the plaintiffs for a failure to comply with it, by the assumption and exercise of powers which they did not possess ? Was there any good reason for believing that such illegal action, if contemplated, would be taken before the plaintiffs could take proceedings to prevent it? The proofs do not authorize an affirmative answer to either of these questions.
    The plaintiffs say that they made the payment believing that the board of managers meditated immediate forcible proceedings by which the plaintiffs would have been irremediably injured, and that this was constraint. Granted, but it was constraint 'of their own creation, unless their belief was naturally and reasonably induced by the actions or intimations of the board. Here, it seems to me, is the weak point in the plaintiff’s case.
    My conclusion is that the proofs fail to show a case of duress within the rules established by the authorities which have been cited. The motion to dismiss is granted.

      Francis M. Scott, for app’its; Sullivan & Oromwell, for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the referee.

Freedman, Mo Adam and Gildersleeve, JJ., concur.


text:
    The First National Bank of Chicago, Resp’t, v. Robert J. Dean et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    Warehousemen—Estoppel.
    Where a warehouseman issues a receipt for goods which states on its face-that the warehouse is a free one, and contains no statement of any lien on the goods, he is estopped thereby from claiming as against a bona fide transferee of the receipts that they are subject to a government tax.
    Appeal from judgment in favor of plaintiffs.
    The action is by the plaintiff, as the holder of two warehouse-receipts, to recover damages against the defendants, who are ware-housemen, for failure to deliver to plaintiff the goods called for by said receipts after demand made therefor.
    The court submitted certain questions of fact to the jury for a. special finding thereon.
    The facts found by the jury are as follows:

      First. That the plaintiff did, on the faith of the warehouse receipts issued by the defendants, make additional advances to-Meade, Von Bokkelen & Co., so that their position would be changed for the worse if not allowed to enforce the receipts according to their legal effect.

      Second. The injury aforesaid would amount to as much as the value of the goods.

      Third. The plaintiff believed that the goods were free goods; that is, goods on which the government tax had been paid, and they did act upon that belief in their dealings with Meade, Von Bokkelen & Company.

      Fourth. The value of the goods at the time the demand was-made for them was $1,842.50.
    Both sides moved for judgment on the verdict.
    The following is the opinion of the court below:
    McAdam, J.—Warehousemen are not only responsible for damages which arise by their tortious acts, but sometimes for losses; occasioned by the innocent mistake of themselves or their servants. Thus they are liable for making a delivery of goods to a. person not entitled to receive them. Story on Bailments, § 414 2 Am. & Eng. Enc. of Law, 888, 890.
    Their business has increased with the evolution of trade and commerce, and their rights and liabilities are defined by custom and by statute, so that they are generally understood by business men. They have for years issued warehouse receipts for goods stored with them, and the transfer thereof from one holder to another has been regarded as a symbolical delivery of the goods. These receipts were not negotiable at common law, for the reason that “negotiability only exists in the cáse of absolute promises-for the payment of money, a thing negotiable in itself, and which, cannot be reclaimed by the true owner from any one who has received it bona fide and in exchange for a valuable consideration. But chattels personal are wholly unsusceptible of negotiation in themselves, -and it was deemed manifestly inconsistent to give the-documents which represent them a different character.” 1 Smith’s L. C., Am. Ed., 895, 896.
    To facilitate the transfer of warehouse receipts, and to aid transactions on the faith thereof, a statute was passed making them negotiable by endorsement. Laws 1858, chap. 326, § 6. This was designed to protect purchasers and pledgees irrespective of the validity of the transfer as between the immediate parties. Whitlock v. Hay, 58 N. Y., 484. To further protect the public, warehousemen were forbidden to issue receipts or vouchers for goods not actually in store, and it is a penal offense to issue fictitious certificates. Laws 1858, chap. 326; Laws 1866, chap. 440. Penal Code, § 629. Under these provisions, the plaintiff, by the transfer to it of the warehouse receipts as security for present, and future advances, became the owner of the goods stored, and entitled to their possession without regard to the equities existing-between, the preceding holders. A lender on collateral security is as much a purchaser for value as if he bought out and out. Roxborough v. Messick, 6 Ohio St., 448; 2 Am. Lead. Cas., 235, 5th ed.
    The exigencies of trade called warehouse receipts into being. They are substantially acknowledgments by public or private-agents that they have received merchandise from whom or on whose account, and usage has made the possession of such documents-equivalent to the possession of the property itself. Thus, warrants or receipts are habitually issued for the merchandise deposited in the various warehouses; and as it is expressly or tacitly agreed that the goods shall be surrendered if the warrant, vouched by the order or endorsement of the owner, is presented, a sale, attended by the transfer of such an instrument, is as effectual as if the property were handed over to the purchaser. This is a mere-extension of the rule that when actual delivery is impracticable a. symbol may be substituted for the goods. 1 Smith’s L. C., 8th ed., 1223. The goods represented by the warehouse receipts, in this instance, consisted of brandy, on which a government tax" was due; and if the receipts had indicated that the goods were-stored in a bonded warehouse, the plaintiff would have been chargeable with notice of the act of congress in regard to internal revenue, and it would, have become part of the contract. Van Schoonhoven v. Curley, 86 N. Y., 187. The receipts, instead of’ stating that the brandy was stored in a bonded warehouse, contained a declaration that they were stored at 492 and 494 Greenwich street, Flew York city, and at the head of the receipts is a further declaration that the warehouse 492 and 494 Greenwich street is a free warehouse, a phrase which means a warehouse for the storage of goods not liable to or relieved from bonded duties.
    The receipts were issued to Marschall, Spellman & Co., and were by them transferred to the Meade, Yon Bokkelen Company, of Chicago, Illinois, and that company at Chicago, aforesaid, transferred them to the plaintiff as security for present and future advances; and the plaintiff, upon receiving the transfers, made-fresh advances, exceeding the value of the property represented. by the warehouse receipts. The jury so found, and the evidence ■sufficiently sustains their finding. The representation at the head of the receipts, that the goods were stored in a free warehouse, estops the defendants from claiming as against the plaintiff, a Iona fide transferee of the receipts, that the brandy was •subject to a^ government tax, upon the familiar principle that where one of two innocent persons, that-is, persons each guiltless ■of an intentional wrong, must suffer a loss, it must be borne by that one of them who, by his conduct, acts or omissions, has rendered the injury possible. Pomeroy Eq. Jur., vol 2, § 808.
    Equitable estoppel is the effect of the voluntary conduct of a ¡party whereby he is absolutely precluded, both at law and in ■equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract or of remedy, as against another person who has, in good faith, relied upon such conduct,' ,and has been led thereby to change his position for the worse, and who, on his part, acquires some corresponding right, either •of property, of contract or of remedy. Id., § 804.
    To constitute such an estoppel the following elements are essential: “(1.) There must be conduct, acts, language or silence, amounting to a representation or a concealment of material facts. (2.) These facts must be known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3.) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done, and at the time when it was acted upon by him. (4). The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party; or under such circumstances that it is both natural and probable that it will be so acted upon. (5). The conduct must be relied upon by the other party, and thus relying he must be led to act upon it. (6). He must, in fact, act upon it in such a •manner as to change his position for the worse.” Id., 805.
    The acts of the defendants contain all the ingredients necessary for an estoppel, and the jury found against the defendants on all the facts required to make the estoppel effectual. In a free warehouse the warehouseman is the sole custodian of the goods, and when his charges are paid the owner is entitled to them. In a "bonded warehouse the goods are in the joint custody of the proprietor thereof and a storekeeper assigned to it by the government, E. S. of TJ. S., § 3274; and, in order to get the goods out, the •owner must settle with both the warehouseman and the government. For an interesting account of the origin and growth of the warehouse system in England and the United States, see 2 Kent's Com. (11th ed.), 787. The plaintiff could not, under the ■circumstances, be required by the defendants to pay the government tax' as a condition precedent to the right of claiming the •goods from the defendants, and the latter were guilty of conversion in imposing that as a condition to their delivery.
    Counsel have discussed at length the question whether the Illinois or the Mew York rule is to govern in determining whether the plaintiff is a bona fide transferee of the receipts foi' value. TJnder the Illinois rule, one who takes a negotiable instrument in good faith in payment, or as collateral security for the payment, of an antecedent indebtedness, parts with such value as entitles, him to all the rights of one who purchases a negotiable instrument, for a present consideration without notice of existing equities. Manning v. McClure, 36 Ill., 499; Butters v. Haughwout, 42 id., 18.
    The goods were stored in New York; the contract was made in that state, and was to be performed there, and the plaintiff is in the forum of that state seeking to enforce the obligation against, the defendants, who reside there, so that both the lex loci and lex fori unite in requiring the rights and obligations of the parties to. be determined exclusively by the laws of this state. Hallgarten v. Oldham, 135 Mass., 1; Guillander v. Howell, 35 N. Y., 657; Loflus v. Bank, 133 Penn. State, 97; Keller v. Paine, 107 N. Y., 83; 11 St. Rep., 330; Warner v. Jaffray, 96 N. Y., 248; Dickinson v. Edwards, 77 id., 573; Wayne Co. Bank v. Low, 81 id., 566. It cannot be that if a negotiable obligation, made in this state, is. there transferred for a precedent debt, the transferee is not a bona fide holder to shut out equities in favor of the maker; and yet i£ the obligation is transferred in Illinois, to a resident of that state, our courts must ignore the rule adopted in this state, and follow that prevailing in Illinois, and shut out the equities. Any such doctrine would be an unjust discrimination in favor of non-residents against residents of our own state inconsistent with every principle of comity or notion of uniform justice, and cannot prevail. As against the Meade, Yon Bokkelen Company, its obligations might, in a proper action, be determined by the laws of' Illinois, because its endorsement (which is, to an extent, an independent contract) was made and delivered there, and it cannot, object that its obligation is determined according to the law of the place where it was entered into. Story Confl. of Law, § 287a; Weil v. Lange, 6 Daly, 549; 2 Am. and Eng. Enc. of Law, 329, 330. Under the finding of the jury, which is satisfactorily sustained by the evidence, the plaintiff became a bona fide owner of the warehouse receipts, under the laws of this state, as declared in Coddington v. Bay, 20 Johns., 637, and kindred cases, so that it is-of little practical moment whether the Illinois or the New York rule is to control.
    The plaintiff became the owner and holder of the two receipts, and entitled to the possession of so much brandy stored in a free warehouse, with title unimpaired by equities existing between prior holders. The defendants having refused to give up the brandy are liable for the value thereof as assessed by the jury, $1,342.50, with $98.50 interest thereon, making together $1,441; and for this amount the plaintiff is entitled to judgment

      Hatch & Warren, for app’lts; Peckham & Tyler, for resp’t.
   Per Curiam.

The judgment is affirmed, with costs, on the opinion of the court below.

Freedman and Gildersleeve, JJ., concur.


text:
    Frederick P. Forster, Pl’ff, v. David Scott, Def’t.

      (New York Superior Court, General Term,

      Filed January 15, 1892.)

    1. Eminent domain—Constitutional law.
    The provisions of the Consolidation Act in relation to street openings are constitutional, because they relate to the exercise of the power of eminent domain, which implies that private property shall not be taken “ without just compensation.”
    '3. Same—Filing of map.
    The mere filing of the map in street opening proceedings creates no lien or incumbrance upon the owner’s title.
    Case agreed upon in a controversy submitted without action, pursuant to § 1279 of the Code.

      Forster & Speir, for pl’ff; R. H. Lynde, for deft.
   McAdam, J.

The acts under which the map of the contemplated street opening was filed are constitutional, because relating to the exercise, of the power of eminent domain, which implies that private property shall not be taken “ without just compensation.” Const., art. 1, §§ 6, 7. This is in accord with the rulings in the Furman street case, 17 Wend., 649, approved by the court of errors, and in the One Hundred and Twenty-seventh street case, 56 How. Pr., 60. The filing of the map is a preliminary step in the exercise of the right of eminent domain that may or may not proceed further. The right of the public to exercise such authority and to condemn land for roads, streets and highways has never been denied. It is, as Puffendorf calls it, the “ exercise of transcendental propriety,” as if the sovereign thereby.resumes possession of that which had been previously granted to the subject upon the condition that it might be again resumed to meet the necessities of the sovereign. Puffendorf, B. 8; C. 5, § 3; Fletcher v. Peck, 6 Cranch, 87. The acts in question do not attempt to regulate private property, and do not interfere with the use thereof. 'The filing of the map is merely notice to whom it may concern of :an intention to open a street at a place indicated. It does not ■divest the owner’s title, and in no way incumbers or impairs it, until the proceedings provided by the statute have been taken for the purpose of condemning the premises, and these proceedings may never be taken, and the streets laid down by the map never opened for public use. Wagner v. Perry, 47 Hun, 518; 15 St. Rep., 8; In re Dept. Public Parks, 60 N. Y., 319. To hold the title divested or impaired by the filing of the map, would imply a present right to compensation for the supposed injury, a claim which would be both premature and untenable.

The title is in nowise impaired; for the owner of the property may use it as he pleases, notwithstanding the filing of the map, for ■any legal purpose to which it may be devoted. If, however, after the constructive notice arising from the filing of the map, he voluntarily changes the property by putting an artificial structure or value upon it, he does so at his peril, and may have difficulty in compelling the corporate authorities to reimburse the expenditure so made. Whether paying for the land, without the improvements made, after the filing of the map, is just compensation ” within the meaning of the constitutional provision on the ¡subject, is a question which will more appropriately arise, when the issue as to compensation comes up. It is not directly before the court now. The constructive notice arising from the filing ■of the map affects all whom it may concern, owners, mortgagees and purchasers alike. It is matter of public concern. It is not a fact the owner is bound to communicate to a purchaser, nor is the suppression of it fraudulent. Wagner v. Perry, supra. The filing of the map is in no manner, nor to any extent, a defect of title, cloud on the title or incumbrance. It is not a •claim antagonistic to the owner, but in harmony with, and in recognition of, his title. If the property should eventually be taken, as any private property may for public use, the “ just •compensation” which must be awarded will presumably be ■equivalent to the property taken, and there will consequently be no loss to anyone. If the purchaser sees fit to add an artificial value to the property by building upon it, he has the right to •do so, no one can restrain him, the property will be liis to do what he pleases with. If the street is ultimately cut through, he may claim compensation for his improvements, and if it is ■disallowed he will then be in a position to test the constitutionality of those portions of the acts which provide no compensation for erections made after the filing of the map. Those •questions do not call for authoritative decision now.

If the plaintiff had built upon his lot after the filing of the map, and contracted to convey both house and lot, a serious question would have been presented whether it would not be too inequitable to compel the vendee to take, Pomeroy’s Eq. Jur., §§ 1404, 1405, but that question does not arise here, as the lot is vacant and unimproved.

The sale was not made by order of the court, but by voluntary contract of the parties, and the plaintiff is entitled to have it enforced unless objections more substantial than have appeared here .are presented against the application. We deem it. sufficient for the present to decide (1.) that for the purposes of this case as submitted the statutes under which the map was filed are constitutional and that the plaintiff has good title to the property he contracted to convey; (2.) that there is no lien or incumbrance on it created by the statutes to which our attention has been called; and (3.) that the plaintiff is entitled to judgment that the defendant take the title tendered, and pay the sum of $1,000 without costs, according to the terms of the submission.

Ereedman and G-ildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Mary E. Bradley, Resp’t, v. Isaac Walker, App’lt.

      (New York Superior Court, General Term,

      Filed January 29, 1892.)

    1. Vendor and purchaser—Restrictive covenants.
    Whoever purchases real estate with notice of any equity attaching to it, buys subject to that equity. He must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor.

      2. Same—Notice.
    The record of a covenant agreement containing such restriction is notice thereof to a subsequent purcháser, even though not properly recorded as-to*said purchaser’s grantor on account of her defective acknowledgment.
    3. Costs—Extra allowance.
    In an action for an injunction, where there is no evidence of the subject matter involved and the amount claimed as damages was $1,000 and there' was no recovery beyond costs, Held, that an extra allowance of $250 is erroneous.
    Appeal from a judgment of the special term.

      Henry Hoyt, for app’lt; George W. Cotterill, for resp’t.
   Gildersleeve, J.

By a judgment of the court below the defendant was enjoined from erecting and maintaining structures in front of his premises in violation of a covenant agreement entered into by prior owners of this and adjacent property, reserving a space of eight feet in front of the street line.

• The questions of law involved in this case, and requiring consideration for its proper determination, were all substantially decided by a former general term of this court, on an appeal from, the order vacating the injunction granted at the inception of the-action. See Bradley v. Walker, opinion by McAdam, J., 39 St. Rep., 253.

In the above mentioned opinion, the question of the defendant’s. notice of the agreement is not fully discussed; and the claim of his learned counsel that, on the former appeal, it was assumed that the defendant purchased the premises with notice, is not without foundation. We now propose to discuss this question, and also give attention to the- alleged error in granting plaintiff an allowance of $250. We hold the former general term opinion to-be decisive of all other material matters herein.

Whoever purchases real estate with notice of any equity attaching to it, buys subject to that equity. He must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor. Bradley v. Walker, supra, and authorities there cited. The notice may be implied from circumstances. In Tallmadge v. East River Bk., 2 Duer, 614, affirmed 26 N. Y., 105, the court held “ that the uniformity of the position of all the houses on St. Mark’s place was probably sufficient alone to put the defendant on inquiry.” See also Maxwell v. Bank, 3 Bosw., 124; Perkins v. Coddington, 4 Rob., 647; Greene v. Creighton, 7 R. I., 1.

The house in question and the adjoining houses in the same block are actually set back eight feet from the line, and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is of itself a circumstance that might well put the purchaser on inquiry. In Tallmadge v. East River Bk., supra, the notice was not wholly by implication. There was testimony in the case that justified a finding of actual notice. Nevertheless, the case is authority in support of the doctrine for which we here contend. But in the case at bar the fact of the notice does not rest upon an implication from circumstances above set forth.

The covenant agreement under consideration here was regularly recorded, and this in and by itself was notice. This court, in Kendall v. Niebuhr, 45 Super. Ct., 542, Freedman, J., writing the opinion, affirmed at general term, 46 Super. Ct., 544, held that “a ■mortgagee employing an attorney to make searches, prepare releases, etc., is chargeable with knowledge of a recorded conveyance, though the fact was not com municated to him by the attorney. The presumption is that the attorney found the record in discharge of his professional duty, and the presumption" becomes ■conclusive by the attorney’s omission to testify to the contrary when called as a witness.” In the case at bar the defendant’s attorney was present and conducted the trial, but remained mute on this point. FTotice to an attorney in the investigation of a title is notice to his client. See Griffith V. Griffith, 9 Paige, 315; Weeks on Attorneys, 407, § 237. Purchasers must be deemed to know every fact disclosed by the instruments of record affecting the property purchased; and the fact of such purchasers not having .actual notice will not relieve them from obligations imposed by said instruments. A purchaser must be presumed to examine every recorded deed or instrument forming a part of it. See Acer v. Westcott, 46 N. Y., 384; McPherson v. Rollins, 107 id., 322; 12 St. Rep., 488.

If it is held that the agreement was not properly recorded as to defendant’s grantor, Mrs. Alvord, on account of her defective acknowledgment, inasmuch as it was properly recorded as to ¡the other parties to the agreement the defendant could not in law see a part.without the whole, and he would thereby have actual notice through his attorney who searched the title. See 2 Pomeroy’s Eq. Juris., 16, 17, 92.

With regard to the granting of an extra allowance of $250, we ■■think the court below fell into error.

Subdivision 2 of § 3253 of the Code provides that an extra allowance may be- given “in any other case” (other than an action to foreclose a mortgage), “ specified in this section, a sum not exceeding five per centum upon the sum recovered, or claimed, or ■the value of the subject matter involved.”

In the case at bar there is no evidence of the value of the subject matter involved, and no sum recovered beyond the costs and extra allowance; while the amount claimed as damages is $1,000, five per centum of which would be less than the $250 granted as extra allowance by the court below. Thus, in any view of the case, the granting of the extra allowance of $250 was improper.

° Where the subject matter involved is not capable of a money value, or the value is not shown, an allowance is not authorized. See Conaughty v. Saratoga Co. Bank, 92 N. Y., 401; People v. Alb. & Sus. R. R. Co., 5 Lans., 25; Coates v. Goddard, 34 Super. Ct., 118; Munro v. Smith, 23 Abb. N. C., 275; 25 St. Rep., 624.

This error, however, is one that can be remedied without reversing the judgment, which, in all other respects, is fully warranted.

We are of the opinion that the judgment must be modified by deducting therefrom, the sum of $250, and, as thus modified the judgment appealed from is affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.


text:
    William Sperb, Jr., Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 29, 1892.)

    1. Railroad—Elevated—Damages—Benefits.
    Evidence of a plaintifi that his store is darkened by passing trains and that he is annoyed by cinders, smoke and smells is not sufficient to sustain a finding of fee damage, where his expert testifies that the value of property on the block Where the premises are located has increased much more relatively since the building of the road than corresponding property on. the same block on the next avenue, and that the operation of the road has. made that portion of the avenue more desirable for business purposes.
    2. Same—Injunction—Judgment.
    Where the referee finds the damages to the fee value to two separate and. distinct parcels of property, a judgment restraining the operation of the road in front of one of said parcels, except upon payment of a sum equal, to the aggregate damages to both, is erroneous; but the error may be cured by modifying the judgment on appeal in this respect.
    Appeal from a judgment entered February 11, 1891, upon a. report of a referee, which awards plaintiff $1,457 past damages, sustained by him on account of the maintenance and operation of defendants’ elevated railroad in front of his premises, No. 926 Sixth avenue, besides $280.18, costs of the action. The judgment further enjoins the defendants from maintaining or using-their elevated railroad structure, or operating their railroad thereon, in front of said premises, No. 926 Sixth avenue, except on the-payment to plaintiff of $8,150 as the price of so much of his-property in the street as has been taken by defendants.
    This action covered two separate parcels, viz.: Nos. 624 and 926 Sixth avenue. The learned referee apportioned the damages-as follows:

      Davies & Eapallo, for app’lts; Edwin M. Felt, for resp’t.
   Gildersleeve, J.

We will first consider the judgment herein so far as it relates to the premises No. 624 Sixth avenue. The-evidence does not support the finding of a fee damage of $800. This action was commenced May 8, 1889. From the undisputed evidence it appears that the plaintiff bought the property on September 1, 1885, seven years after the railroad was built, for $32,900; that it was occupied by an old building worth about. $6,000, which plaintiff pulled down; that plaintiff erected in place-thereof a new building at a cost of about $15,000; that the fair-value of the property when this action was tried was at least the-sum of $41,000. The appraisers for the Emigrant Industrial Savings Bank placed the value at from $40,000 to $45,000. Deducting $6,000, the value put upon the old building, from the purchase price, we find that the lot cost the plaintiff $26,000; and when we add to this sum $15,000, the cost of the new building, we find the plaintiff’s outlay for the property to be exactly $41,-000. Plaintiff's expert testified that the value of property on the block where No. 624 is located has increased much more relatively since the building of the road than corresponding property •on the same block on Seventh avenue; that the block is very desirable for business; that the maintenance and operation of the road has made that portion of Sixth avenue which includes the property in question more desirable for business purposes.

The only evidence that indicates any disadvantages to the plaintiff by the maintenance and operation of defendants’ structure in front of these premises is his own statement to the effect that the running trains darken the store when they pass, and that he is annoyed by cinders, smoke and smells. We are of the opinion that a fair conclusion from all the evidence is that the special benefits accruing from the operation of the road offset any disadvantages that may exist, and that the property is worth more with the road there than it would be without it. No proof was offered as to property in localities-off the line of the railroad by way of comparison. We fail to find in the affirmative testimony any evidence that warrants a recovery by the plaintiff.

For the foregoing reasons, we think it was error for the learned referee to refuse to find, as requested, “ That the special benefit accruing to the premises known as number 624 Sixth avenue, from the maintenance and operation of the said railroad in front there•of, is equal to and offsets the disadvantages, if any, resulting from the maintenance and operation of defendants’ railway.”

The judgment herein further awards to plaintiff the sum of :$1,457, and costs, as past damages, for the injuries to No. 926 Sixth avenue, and enjoins the defendants from maintaining or using their elevated railroad structure, or operating their railroad thereon, in front of said No. 926 Sixth avenue, except on the payment to plaintiff of $3,150, as the price of so much of the property in the street as has been taken by defendants. The learned referee fixed the value of the easements taken from No. 926 Sixth avenue at $2,350, and the judgment fixes the amount that the defendants have the option of paying, in avoidance of the injunction, at $3,150. This latter sum is the aggregate value of the easements, as found by the referee, taken from both premises No. 926 and No. 624 Sixth avenue, located about sixteen blocks .apart. The defendants are not enjoined from operating their railroad in front of No. 624-Sixth avenue.

The judgment, therefore, imposes upon the defendants in respect to the premises which were the basis for the injunction, a greater burden than the referee imposed. This is unjust and can-mot be maintained upon principle or authority. The facts, however, having been fully found, this error may be cured by modifying the judgment to conform to them. Price v. Price, 33 Hun, 432; Hamilton v. Manhattan R. Co., 58 N. Y. Super. Ct., 17; 30 St. Rep., 17.

With regard to No. 926 Sixth avenue, we are of opinion that the evidence sustains the findings of the referee. We find no errors in the admission or exclusion of evidence that are of sufficient importance to require consideration.

. For the reasons above indicated, the judgment must be modified by deducting the sum of $800, the sum awarded as damages, to the easements of No. 624 Sixth avenue, from the sum .of $3,150, the sum required to be paid by defendants to the plaintiff,, and by directing the defendants to pay to the plaintiff the sum of $2,350 only in avoidance of the injunction; and, as thus modified, the judgment is affirmed, with costs.

Dugro, J., concurs in result.


text:
    Richard Deeves, Resp’t, v. The Mayor, etc., of New York, Appl’t.

      (New York Superior Court, General Term,

      Filed January 29, 1892.)

    Contract — Hew York city—Performance.
    Where a contract with the city provides that the contractor shall commence work on such day as the commissioners shall designate, and progress the same so as to complete on or before three calendar months, and no day is designated by such officers, the contractor’s time does not begin, to run, and the city cannot complain that the work was not completed within three calendar months from the beginning of the work.
    Appeal from a judgment entered on the verdict of a jury in-favor of plaintiff, and from an order denying defendants’ motion for a new trial.

      William H. Clark, for app’lt; Thornton, Earle & Kiendl, for resp’t.
   Gildersleeve, J.

This action was brought to recover the-sum of $2,249, with interest, being the balance alleged to be owing to plaintiff by defendants, under a contract that plaintiff made with defendants to erect a cottage in Mount Morris Park, for the sum of $5,650. The defense thereto set up by defendants is that-the plaintiff did not perform his work within three calendar months, as required by his contract, and did not complete the work until about May 20, 1889; and that therefore the plaintiff" was in default 103 days, for which time he was charged by defendants $20 per day as damages, making $2,060, which the defendants seek to offset against the claim made by plaintiff, and declare themselves ready and willing to pay the balance of $189.

The material parts of the contract, important for consideration here, are as follows :

“ (D) And the said party of the second part (the plaintiff)/ hereby further agrees that he will commence the aforesaid work on such day, and at such place or places, as the commissioners of the Department of Public Parks may designate, and progress-therewith so as to complete the same in accordance with this-.agreement, on or before the expiration of three calendar months, not including, however, such time as the prosecution of the whole work may be suspended by written order of the said commissioners of the Department of Public Parks.
“ (E) In case the said party of the second part shall fail to fully .and entirely, and in conformity with the provisions of this agreement, perform and complete the said work, and each and every part and appurtenance thereof, within the time hereinbefore limited for such performance and completion, or within such time as the .same, in accordance with the provisions of this agreement, shall be increased or diminished, the said party of the second part shall •and will pay to the said parties of the first part (defendants) twenty dollars for each and every day that he, the said party of the second part, shall be in default, which said sum of twenty dollars per day is hereby agreed upon, fixed and determined by the parties hereto as the damages which the parties of the first part will suffer by reason of such default, and not by way of penalty. And the said parties of the first part shall and may deduct the said sum of twenty dollars per day out of any moneys that may be. due or become due to the said party of the second part under this agreement.”

A careful review of the testimony fails to disclose any evidence that the commissioners of public parks, or any one for them, ever designated the day on which plaintiff was to begin the work, or ever gave him notice to commence the work; but, on the contrary, the plaintiff affirmatively testifies that no day was designated on which to commence tire work.

Inasmuch as the defendants were in default, in neglecting to fix a day for the commencement of the work, they cannot complain of the default of the 0plaintiff in failing to complete the job in three calendar months from the beginning of the work. If the defendants seek to hold the plaintiff to the strict letter of the «contract, they are debarred from objecting to the plaintiff’s holding them to an equally strict construction of the contract. No day having been fixed, the plaintiff’s time never began to run.

It is conceded that plaintiff. fully performed all the work he was to do,“and defendants’ only objection is that he did not complete the job within three months from the time of beginning. 'The plaintiff was delayed for a long period by the neglect of the board, of health to give a necessary permit, through no fault of the plaintiff, and also by inclement weather which rendered it .almost impossible to continue the work. If we deduct the time lost through these two causes we find that the plaintiff completed the work within the three months required by the contract.

There are no errors in the admission or exclusion of evidence ■of sufficient weight to warrant a reversal of the judgment; and the charge of the learned trial judge, taken as a whole, fairly and properly presented the case to the jury, with due regard to the rights of the defendants.

For the reasons above indicated, the judgment and order appealed from are affirmed, with costs.

Freedman, J., concurs.


text:
    Richard Williams et al., Resp’ts, v. Daniel Boehan et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 29, 1892.)

    1, Contract—Building — Variance between, original and working plans.
    Defendants entered into a contract to alter certain buildings for plaintiffs for a certain price, based on the plans and specifications alone. After they had done part of the preparatory work they received the working plans, which they claimed were materially different from those on whjch. they estimated, and which largely increased the cost, and they therefore abandoned the work. In an action for breach of the contract they counterclaimed for the work they had done. Held, that if there was a, material variance defendants were justified in abandoning the contract and were entitled to recover on their counterclaim.
    2. Same—Charge—Harmless error.
    The court charged that if there was a material variance defendants could either go on with the contract or go off ; that they chose to go ofl: and that was an end of their counterclaim. Held, error; but that as the-verdict in favor of plaintiffs established that there was no material variance, such error was not available.
    Appeal from a judgment entered on a verdict of a jury in favor of the plaintiffs, and from an order denying defendants’ motion for a new trial.

      Lachman, Morgenthau & Goldsmith, for app’lts; M. Owen Roberts? for resp’ts.
   Gildersleeve, J.

This action was brought to recover damages for the breach of a building contract Messrs. King & Small,, architects, at the request of plaintiffs, had prepared plans and specifications, setting forth the character and extent of the mason and stone work required to be done. These plans and specifications were given into the possession of the defendants to enable them to estimate the cost of the work, and make a bid therefor. The defendants had no other information as to the nature of the work or materials necessary for the same. Their estimate was-based thereon, and they agreed with plaintiffs to do the work for $5,827, “ in accordance with said plans and specifications.” The work consisted of alterations for the purpose of changing certain dwellings into stores. The defendants entered upon the performance of their contract by commencing to take down the fronts of the dwellings and doing such preliminary work as was. necessary before the work of reconstruction called for by the plans- and specifications began. When the value of the work thus done-had reached the sum of $114.15, as defendants claim, the defendants refused to continue the work and complete the contract. At this stage of the work, but prior to such refusal, the “detailed drawings ” or “working plans,” prepared by the architects, were-placed in the hands of the defendants. The defendants claimed there was a substantial variance between the “working plans'” and the “ elevation plans,” upon which they had estimated; that the working plans ” called for two inches higher sills, an addition of four to four and a half on the cornices, and other variations. involving much greater expense, whereby the value of the work was increased $950. The plaintiffs insisted upon the defendants; working according to the plans as altered, and performing the-extra work as part of their original contract, without extra compensation. This the defendants refused to do, for the reasons-above stated, claiming that this insistence of the plaintiffs was an attempt to arbitrarily modify the agreement, without defendants’' consent.

The plaintiffs procured other parties to do the work at a cost-over and above the contract price with the defendants of $923, and brought this action tor a breach of contract, setting up the said sum of $923 as the measure of damage^. The answer is a. substantial admission of the agreement, an averment that the defendants entered upon the performance of the work thereunder, and an allegation “ that the drawings given to them to estimate on, called the ‘ front elevation plans,’ were changed in the detailed or 1 working drawings ’ so as to materially increase the amount of work to be done,” and séts up a counterclaim of $114.15 for work done prior to their abandonment thereof. To-this counterclaim the plaintiffs duly replied. The trial proceeded for the purpose of determining the rights of the plaintiffs to the-former sum, or any part thereof, and the rights of the defendants-to the latter sum, or any part thereof.

The defendants had a right to refuse to continue under their contract, if the work which the plaintiffs, required under the-“working plans” was substantially different from that which had been submitted to them and upon which they made their estimate. If the defendants could establish this, there was no breach of contract on their part, and hence no cause of action in the; plaintiffs; and if this right to abandon their contract was satisfactorily established by a preponderance of evidence, the defendants-were entitled to recover under their counterclaim. Was there a substantial variance ?

This disputed question was submitted to the jury by the learned trial judge, with perfect fairness to the litigants, and with a concise, clear and accurate statement of the law applicable thereto. The jury were at liberty, and under the evidence properly could, render a verdict for either the plaintiffs or defendants. Their ■verdict under the charge, which we have already said was correct-in this respect, depended upon the conclusion that they reached as to the degree of variance. The jury found in favor of the-plaintiffs, and assessed the damages at $800.

But the learned trial judge, in his charge to the question of defendants’ counterclaim, used the following language: “ So far as the defendants’ counterclaim is concerned, it seems to me that when they discovered that these plans were different from what they supposed they were, if they did discover that, that they had what is called in law a locus pcenitentice, place for repentance, had time for repentance; they could either go on with the contract, or go off. They chose to go off; so I think that is about the end of their counterclaim, and the question gets right back to this question of whether the variations were material,” etc. The defendants duly excepted to this portion of the charge, and also to the refusal of the learned judge to submit the counterclaim to the jury.

On the disputed question as to the degree of variance, the learned judge said in his charge to the jury, “If you find that there was a material and substantial difference, one not justified by the usages and customs of the trade, and that the defendants and their subcontractors were in consequence deceived to their injury, induced to take a job and make a bid they never would have taken or given, the defendants had the right to withdraw from their contract, and are entitled to a*verdict in their favor.”

The defendants were entitled in this connection to have their ■counterclaim submitted to the jury for determination. The court should have instructed the jury substantially as follows : That in the event of their reaching the conclusion that there was a substantial variance between the “ working plans ” and the “ elevation, plans,” and, therefore, that the defendants were justified in abandoning their contract, that it would then be their duty to determine the defendants’ right to the counterclaim.

It was error, therefore, on the part of the trial judge to refuse •to submit to the jury the question arising upon the counterclaim, as herein stated. But, in view of the facts established by the verdict, the error is not available to the defendants. The verdict established that there was no substantial variance, and that the defendants were not justified in abandoning their contract. From this it follows that the jury never reached the question relating to the counterclaim; and that even if they had been correctly instructed in respect to it, they would have been bound to "disallow the counterclaim.

The judgment and order appealed from are affirmed, with costs.

Freedman, J., concurs.


author: Gildersleeve, J. Per Curiam.

text:
    Elizabeth A. Culliford, Resp’t, v. Montgomery Gadd, App’lt.

      (New York Superior Court, General Term,

      Filed January 29, 1892.)

    1. False representations—Defense .
    It is no defense to an action for damages sustained through false representations, by which plaintiff was induced to part with her money, that the representations were not made to the plaintiff in person, but were made to her agent, so long as they induced the payment of the money.
    2. Same.
    It is not necessary for the plaintiff to establish all the alleged false representations. The proof of any material false representation that induced the plaintiff’s act is sufficient.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      Sidney Harris, for app’lt; E. Spiegelberg, for resp’t.
   Gildersleeve, J.

This action is for damages sustained by the plaintiff through the fraudulent representations of the defendant. In January, 1889, at the request of the defendant, and by reason of representations that the defendant had made, the plaintiff, through her husband, as agent, subscribed and paid $1.000 to a syndicate for the development of an alleged secret process for the filtration of water. . The plaintiff alleges in her complaint that at various times prior to her parting with the $1,000, as aforesaid, the defendant, with intent to defraud her, represented to her “that he and one Edward L. Tamsen were the owners of a very valuable secret process, called the ‘ Tamsen Process,’ which greatly improved and facilitated the filtration of water; that he and said Tamsen were ready and willing to sell said secret to a syndicate, to be composed of ten persons, each member to pay $1,000 cash, which syndicate, after the purchase of said alleged secret, was to form a corporation for the purpose of manufacturing and selling filters constructed on said Tamsen process; that said defendant had all the money necessary at his command to assure the success of said corporation when formed, and that no other patent had been issued in the United States or in any other country covering said alleged secret or Tamsen process, and that said defendant had secured nine members of said syndicate, above mentioned, and that each of them had paid, or was about to pay, $1,000 for the purpose of becoming a member of said syndicate.” . The complaint further alleges that all of these representations were false, known by defendant to be so, and were made with intent -to deceive and cheat the plaintiff and to induce her to pay the $1,000 ; that plaintiff believed said representations to be true, and, relying upon them, was induced and did consent to become a member of the alleged syndicate, and pay the $1,000 as aforesaid.

No certificate appears in the appeal-book to the effect that the case as filed and served contains all the evidence produced at the trial. In the absence of such a certificate we are not at liberty to-review any question of fact arising in the case; the only questions, we can properly consider are those of law. See Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948; Murphy v. Board of Education, 53 Hun, 171; 25 St. Rep., 154; Harkness v. R. R. Co., 55 Supr. Ct., 532; 11 St. Rep., 732. Nevertheless, cwe have carefully examined the evidence in the case, and make the following observations: Harkness v. R. R. Co., supra.

. The potent representation made by the defendant, as appears to us, was the statement by defendant “that he and one Edward L. Tamsen were the owners of a very valuable secret process.” The-evidence warranted the jury in concluding that this representation was made by the defendant. It is not a defense to show that the representations were not made to the plaintiff in person, but were made to her agent, so long as they induced the payment of the money.

Fraud committed on the agent is fraud upon the principal. See Raymond v. Howland, 12 Wend., 176; Allen v. Addington, 7 id., 9.

There is testimony in the case to satisfactorily support the finding by the jury that the principal was disclosed to the defendant, and that he acted with full knowledge of the capacity in which the plaintiff’s husband was acting. If this were not so, the charge-of the learned trial judge that “ it is immaterial whether or not the defendant knew that Culliford was acting as agent for his wife,” was not error, for the reason that the agent is not bound to ■disclose his principal, and his failure to do so does not waive any rights of his undisclosed principal as against the defendant. See Ludwig v. Gillespie, 105 N. Y., 653; 7 St. Rep., 527.

The plaintiff was not obliged to establish all the alleged- false ■representations. The proof of any material false representation that induced the plaintiff’s acts was sufficient. It must have been made as charged; it must have been false, and known by defendant to be false when made; and at the time it must have been the intention of the defendant to defraud the plaintiff; and that such acts, in furtherance of such' intention, did work her an injury; it must have been that the representations were relied upon by the plaintiff as true, and that they had a material and substantial influence upon her in inducing her to part with her money; that they were of such a character as would naturally deceive a man of ordinary care, caution and prudence, and such as common prudence and caution could not well guard against. These elements, necessary to sustain the plaintiff’s action, the jury were justified in concluding that the testimony satisfactorily established.

The evidence, as contained in the record before us, fully supports the contentions of the plaintiff. Such portions as were controverted were fairly submitted to the jury, and the verdict of the jury is conclusive. See Schumaker v. Mather, 38 St. Rep., 542; Hart v. Wilder, 37 id., 895.

The charge to the jury of the learned trial judge, when taken us a whole, was correct, and fully protected the rights of the defendant.

We find no exceptions to the admission or exclusion of evidenee of sufficient importance to claim attention here.

For the reasons above indicated, the judgment and order appealed from are affirmed, with costs.

Freedman, J., concurs.

On motion for re-argument, the following decision was rendered March 14, 1892.

Sidney Harris, for app’lt; M Spiegelberg, for resp’t.

Per Curiam.

The general term passed upon the facts disclosed in the case in the way that they would have passed upon them if there had been a statement that the case contained all the evidence.

Motion denied, with ten dollars costs.


author: Putnam, J.

text:
    John Carroll, Resp’t, v. John Langan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Supplementary proceedings—Recorder op Albany—Jurisdiction.
    The power conferred on U’e recorder of the city of Albany by chap. 150, Laws 1849, as amended by chap. 284, Laws 1872,' to act in proceedings supplementary to execution, is a power to be exercised only within that city.

      Appeal from judgment in favor of plaintiff entered upon verdict.

      J. R. Langan {Hugh Reilly, of counsel), for app’lt; Myers & Nor■ton {Join T. Norton, of counsel), for resp’t.
   Putnam, J.

Judgment was obtained by defendant in the supreme court against plaintiff, a resident of Rensselaer county, ■on February 7, 1887, and entered in Albany county, where defendant resided. Execution was issued upon said judgment in Rensselaer county and returned unsatisfied to the Albany county •clerk’s office. On January 15, 1890, the recorder of the city of Albany made an order in said action in supplemental proceedings requiring plaintiff to appear before a referee in Rensselaer county to be examined. Plaintiff failing to appear, the recorder issued an •order requiring him to show cause at chambers in the city of Albany why he should not be punished as for contempt. Plaintiff .appeared and objected to the .jurisdiction of the recorder, who made an order adjudging him in contempt, under which a warrant -was issued to the sheriff of Rensselaer county, by virtue of which plaintiff was arrested and imprisoned.

This action was then brought for false imprisonment. The plaintiff obtained a verdict, the court on the trial holding that the recorder had no power to make the order under which plaintiff was imprisoned. The learned judge who presided at the trial afterwards, on a motion for a new trial, examined the question involved carefully and wrote an opinion in which he adhered .to his views expressed on the trial.

He held, under the authority of the case of Hayner v. James, 17 N. Y., 316, that the legislature could confer upon the recorder of "the city of Albany the power granted by § 10, chap. 150, of the Laws of 1849, as amended by § 10, chap. 284, Laws of 1872; to be exercised, however, only in the city of Albany. A statute conferring a similar power upon the recorder of Troy, which was considered in the case of Hayner v. James, supra, expressly limits the power of the recorder to act “ within said city.” No such limitation is contained in the acts of 1849 and 1872, supra, as to the recorder of Albany. But the learned justice in the court below was of opinion that such limitation is to be implied, and that the act does not extend his jurisdiction to the county of Rensselaer.

Prior to the adoption of the constitution of 1846, the recorder •of the city of Albany, by virtue of his office, was a supreme court •commissioner, and as such exercised the powers of a judge of the .supreme court at chambers. See 2 R. S., 281, § 32; 289, § 18

The constitution, however, art. 14, § 8, abolished the office of ■supreme court commissioner and divested the recorder of his power as such conferred upon him by the former statute. See Nash v. People, 36 N. Y., 609 to 615; Renard v. Hargous, 13 id., 259.

It is true, as claimed by appellant, that the abrogation of the office of supreme court commissioner did not annihilate the powers and duties that appertain to it These powers could be bestowed by the legislature upon other classes of officers brought into existence or permitted to exist by the constitution, as held in Hayner v. James, supra. Therefore, the legislature could confer upon the recorder of Albany the same powers as he formerly had as a supreme court commissioner, except as prohibited by "the constitution.

Section 10 of the act of 1849', as amended in 1872, is as follows: “Section 10. The recorder of the city of Albany shall have power to do and perform all the acts and duties that may by law, or according to the rule and practice of the supreme court, be done and performed by a justice of the supreme court at chambers, including proceedings supplemental to execution.”

The question is, could and did the legislature confer by said section upon the recorder power to -grant an order in supplemental proceedings to be executed in any part of the state outside of the city of Albany ? If the legislature could confer upon the recorder power to act beyond his local jurisdiction in supplemental proceedings, it could confer power to act in all counties of the state in other than supplemental proceedings.

The constitution of 1846 deprived the recorder of all power as a supreme court commissioner. The subsequent provision (article 14, § 12), providing that all local courts established in any city or village with their present powers and jurisdiction should remain, left the recorder’s court a local court with a merely local jurisdiction. The recorder no longer had the power of a supreme court commissioner. The constitution of 1846 also provided that inferior courts of civil and criminal jurisdiction may be established by the legislature in cities. Under this power the legislature could in 1849 establish in the city of Albany a local court, and doubtless could also confer upon the existing recorder’s court local, civil or criminal jurisdiction. But under the constitution it could do no more.. As held in Geraty v. Reid, 78 N. Y., 67: “ The only authority conferred is to establish local and inferior courts. The jurisdiction of the local court must be exercised witliin the locality, and its process cannot be executed outside of it.” And it was held in that case by the court of appeals that the justices of the peace in the city of Brooklyn cannot be given jurisdiction outside of the city of Brooklyn under the constitution, and that the act of the legislature considered in that case should be so construed as to confer jurisdiction only within said city. In Landers v. The Staten Island R. R. Co., 53 N. Y., 450, it. was held that the legislature could not confer upon the city court of Brooklyn, a civil court, power to act where the defendant resided out of the city or was not served with process therein. And in that case it was held that the power conferred upon the legislature by the constitution to give further civil and criminal jurisdiction to said city courts meant “local ” jurisdiction. See, also, People ex rel. v. Porter, 90 N. Y., 68; Brandon v. Avery, 22 id., 469; Rockwell v. Raymond, 5 N. Y. Sup., 642; Hutkoff v. Demorest, 103 N. Y., 384; 5 St. Rep., 597.

These cases, and many others that might be cited, are authorities that the legislature under the constitution could confer upon the recorder of the city of Albany, in 1849, civil jurisdiction to be exercised locally, but not such jurisdiction to be exercised in other parts of the state. See, also, the case of Hayner v. James, supra.

It is claimed, on the part of defendant that the acts of 1849 and 1872, above referred to, confer upon the recorder all the powers of Justices of the Supreme Court at chambers for the whole state. A power extending over the state of New York. That the acts of 1849 and 1872, supra, in fact make him a state officer with powers at chambers only bounded by state limits.

We think the constitution as interpreted by the court of appeals in the cases above and others that might be cited prevents the exercise of such powers by the recorder of the city of Albany. That the acts of the legislature above quoted should be deemed to confer upon the recorder powers to be exercised within the city of Albany and not in other counties of the state. That under well settled principles the act of 1849 should be so construed as not to confer upon the recorder powers to be exercised outside of the city. It is held that where a statute is susceptible of two constructions, both equally reasonable, one of which will render it_ valid and the other void, that the court will accept the former. People v. Terry, 108 N. Y., 1; 12 St. Rep., 773.

So the power conferred on the recorder to act in proceedings supplemental to execution by the acts of 1849 and 1872 should be deemed to be a power to be exercised within this city.

But the appellant claims that the cases above cited and similar authorities do not apply here, because in each of those cases the court whose jurisdiction was questioned was created and established after" the adoption of the constitution, while the recorder’s court existed prior to the constitution, and his powers were continued by the provisions of the constitution that all local courts established in any city or village shall remain until otherwise directed by the legislature, with their present powers and jurisdiction.” The answer is that the recorder’s powers as a supreme court commissioner were not continued by the above quoted provision, being taken away from the recorder by the express language of article 14, § 8.

As above attempted to be shown, when the act of 1849 was passed the recorder, by the constitution itself, was divested of all power as supreme court commissioner, being then a mere local •officer with local jurisdiction, and having no power as a justice of the supreme court at chambers. It makes no difference that •at some former time the recorder was a supreme court commissioner. He was not in 1849. The act of 1849 did not then •continue an existing power in the recorder. It conferred upon him a new power. It was equivalent to the creating of a new court and the cases above cited seem very plainly to apply.

We hence conclude that the view taken by the judge at the special term was correct and that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


author: Mayham, P. J.

text:
    Mary M. Nellis, Resp’t, v. Amaziah Duesler, Executor, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Executors and administrators—Action on disputed claim—Costs.
    Where an action is brought against an executor upon a disputed claim, and the referee reports in favor of plaintiff, though the award is but one-tenth of the amount claimed, the plaintiff is entitled to costs if it appears-that the executor refused to refer the claim as prescribed by law.
    Appeal from an order of special term allowing costs to the-plaintiff on a recovery in an action prosecuted by her against the defendant as executor.

      Smith & Nellis (A. J. Nellis, of counsel), for app’lt; J. M. & H, Dudley, for resp't
   Mayham, P. J.

The plaintiff prosecuted this action in this court to recover of the defendant as executor a claim alleged to have arisen between the plaintiff and defendant’s testatrix for services rendered for the latter by the former in the life time of testatrix.

The action was tried before a referee, who reported in favor of the plaintiff. The claim presented by the plaintiff to the executor, and rejected by him, amounted to $2,551.04, and that was the,amount claimed in the complaint.

The referee reported due from the defendant’s testatrix to the plaintiff the sum of $192.90 and directed judgment therefor. On that report and affidavits the plaintiff moves for costs in favor of the plaintiff against the defendant and the court grants that motion, from which order the defendant appeals.

It appears from the findings of the referee that while a large proportion of the claim presented by the plaintiff to the executor which was rejected by him was disallowed by the referee, still a. portion of the claim made for services was allowed, and reported, as due the plaintiff.

Standing upon the report of the referee alone, the plaintiff' would not be entitled to costs against the executor. Code, .§ 1835.. Has the plaintiff brought this case within the provisions of the next section ? The claim seems to have been presented within the proper time. It was resisted by the defendant and payment, refused, but as there was such a disparity between the claim presented and the amount allowed, its resistance in .the form presented cannot be held to be unreasonable, and the defendant should not be chargeable with .costs, unless he refused to refer the-claim as prescribed by law. Upon this last ground there is a conflict in the evidence on this motion.

But that conflict seems to have been determined in favor of the plaintiff by the referee appointed to hear and determine that question, and we think upon that disputed question of fact there is-sufficient evidence to uphold his conclusion. But the concluding-paragraph of § 1836 of the Code of Civil Procedure in terms requires the facts upon which an allowance of costs against an executor is made to be certified by the Court or referee before whom the trial was had. The language is 'as follows: “ Where the action is brought in the supreme court, or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place.”

In this case the referee who found that the plaintiff had offered to refer this claim, and that the defendant had refused to refer the same, was not the referee before whom the trial took place; but one appointed by the court to take the proofs Rearing upon that subject and report thereon to the court

On the hearing before that referee both parties appeared and participated in the investigation, and each swore and examined witnesses before the referee, and the defendant, before such referee was appointed, stipulated not to urge that such motion for costs should be founded upon the certificate of the referee who heard and decided the action, as provided in the portion of § 1836 above quoted.

We must therefore for the purpose of this motion hold that the plaintiff before he commenced this action offered to refer the disputed claim under the statute to a referee approved by the surrogate, and that the defendant refused to join in such reference.

The plaintiff was thus left, either to forego her entire. claim against this estate, or bring her action at common law to collect and enforce the same. We think, therefore, that the plaintiff had brought her case within the exceptions embraced in §§ 1835 and 1836 of the Code of Civil Procedure and as the amount of her recovery is sufficient to carry costs, the special term was right in awarding costs to the plaintiff against the defendant as executor.

Order affirmed, with ten dollars costs and printing disbursements.

Herrick, J., concurs; Putnam, J., not voting.


author: Mayham, P. J. Herrick, J. Putnam, J.

text:
    The People, App’lts, v. The Fitchburg Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Costs—Extra allowance—Submitted controversy—Stipulation as to costs.
    In a case submitted under § 1279 of the Code it was stipulated that the prevailing party should have costs. Defendant recovered judgment and asked for an extra allowance, under § 3253 of the Code. ÉMd, that the stipulation as to costs must be substituted for the exercise of any discretion by the court, and limited the prevailing party to the taxable costs.

      (Fish v. Coster, 28 Hun, 64, followed.)
    This is an application for an extra allowance in a case submitted to this court under the provisions of § 1279 of the Code of Civil Procedure.

      Simon W. Bosendale, for app’lts; T. F. Hamilton, for resp’t.
   Mayham, P. J.

The Troy & Boston Eailroad Company, a corporation formed under the laws of the state of Hew York, consolidated with the Fitchburg Eailroad Company, a corporation created under the laws of the state of Massachusetts, and filed their articles of consolidation in the office of the secretary of state of the state of Hew York. The state of Hew York by its officers claimed that such consolidated railroad company became by virtue of such consolidation liable to pay a franchise tax into the treasury of the state to the amount of $18,003.25. This claim was disputed by the railroad company and to settle that controversy the parties made and submitted a case to this court under the authority of the section of the Code above referred to.

On the hearing on such case at the general term, the ¿curt gave judgment for the plaintiff for the amount claimed and judgment was entered for that amount and the costs of an action.

From that judgment the defendant appealed to the court of appeals, where the judgment of the general term was in all things reversed, and judgment absolute was ordered for the defendant.

The defendant now asks for an additional allowance of five per cent upon the amount claimed by the plaintiff under the provisions of § 3253 of the Code of Civil Procedure.

By § 1280 of the Code it is provided the written submission provided for in the preceding section must be filed with the clerk. “ The filing is a presentation -of the submission; and thenceforth the controversy becomes an action, and each provision of law relating to a proceeding in an action applies to subsequent proceedings therein, except as otherwise prescribed in the next section.”

The only provision in the next section which could in any way bear upon this question is that which provides that: “ The costs thereof are always in the discretion of the court, but costs cannot be taxed for any proceeding before notice of trial ”

There is nothing, therefore, that prohibits the court, from granting an extra allowance in the provisions of § 1281 of the Code, and the same rule upon that subject that would govern in ordinary actions would, under the provisions of § 1280, obtain in a submitted case.

It is true that in granting an additional allowance, on the ground that the action is difficult' and extraordinary, the statute confines the court to cases where a defense has been interposed. But it has in effect been held that when a controversy has been submitted it carries with it the idea of a claim of some kind on one side, which is opposed and defended on the other, and it is a defense within the meaning of § 3253 (Kingsland et al. v. The Mayor of New York, 52 Hun, 98; 22 St. Rep., 497), and that the court may, in a proper case, in the exercise of its discretion, grant an additional allowance.

But it must be borne in mind that by § 1280 the controversy after submission becomes an action, yet unlike many forms of actions, the costs of such action upon a submission are by the provisions of § 1281 always in the discretion of the court. The exercise of that discretion if not restricted by the submission, would put it in the power of the court to deprive the prevailing party of all costs.

But in this case the parties have seen proper to control the exercise of that discretion in the court by providing that the prevailing party is to have costs. Thus the parties have so far as they could by their stipulation of submission, abridged or restricted the exercise by the court of the discretion vested in it.

If the court should reach the conclusion that in the exercise of its discretion this was not a proper case to allow costs to the prevailing party, it would nevertheless be called upon to carry out the stipulation of the parties, unless that stipulation violated some provision of law, or sound public policy. In the case of Kingsland v. The Mayor, 52 Hun, supra, the parties had made no stipulation as to costs, and the general term granted an additional allowance in the exercise of their discretion.

In the case at bar, as we have seen, the parties stipulated as to costs, and we think, within the authorities, that stipulation must be substituted for the exercise of any discretion by the court. In Fish v. Coster, 28 Hun, 64, the parties stipulated in their submissi on of a controversy upon agreed state of facts that "the judgment, in favor of whichever party it shall be, shall be given with costs and disbursements.

Davis, J., on an application for an additional allowance says :• “ We do not consider the question whether this court has power to grant an additional allowance, because by the express terms of the submission it is provided that the judgment, in favor of whatever party it shallbe, shall be given with costs and disbursements, and those words we think were used with reference to the proper taxable costs in such cases.” This ruling of Judge Davis was affirmed in the court of appeals on his opinion, in 92 U. Y., 627. We think the case is substantially identical in principle, and in the facts, with the one at bar.

The stipulation as to the allowance of costs, we think, did not, in terms or effect, embrace an additional allowance, but in effect did embrace the taxable costs as to the extent and limit of costs to the prevailing party.

The motion for an additional allowance must be denied.

Motion denied, with ten dollars costs and printing disbursements to the plaintiff.

Herrick, J.

I concur out of deference to the case of Fish v. Coster, referred to in the opinion of Mayham, P. J. As an original proposition I should entertain views directly the reverse of those therein expressed.

Putnam, J.

I also concur for the reason stated by Judge Herrick. In my opinion the stipulation that the prevailing party should recover costs should be construed to mean not only the ordinary taxable costs under § 3251 of the Civil Code, but also an extra allowance under § 3253, if the case should prove difficult, and the proper court, in its discretion, should thereafter hold it proper to make such allowance. I am ' unable to see why the stipulation relieving the court from the exercise of discretion as to the ordinary taxable costs should prevent the exercise of that discretion as to an allowance. But the general term of the first district in the case of Fish v. Coster have passed upon this question and arrived at a different conclusion. This case was affirmed by the court of appeals. 92 N. Y., 627. The defendant, however, in whose favor-the order denying the extra, allowance was made, was appellant, and I presume the question of the power of the general term to grant an allowance was not passed upon. The question involved, therefore, remains undecided in that court. I think it proper to follow the holding of the general term of the first district. The order should state that the denial is upon the ground that the parties having stipulated as to costs this court is not authorized to grant an allowance. The defendant will thus be authorized to submit the question involved to the court of appeals.


text:
    Tuffield D. Depan, App’lt, v. Patrick Wallace, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Verdict—Not set Asms when thebe is evidence to suppobt. '
    In an action for an alleged assault, the answer denied the same, and set up self-defense. Upon the trial, evidence was given to support both sides. The jury brought in a verdict of no cause of action, and a motion for a new trial on the minutes was denied. Held, that the jury, having heard the conflicting testimony, was the proper tribunal to settle the conflict, and that this court will not disturb their verdict.
    Appeal from a judgment upon the verdict of a jury in favor of the defendant. The action was for an alleged assault and battery.

      A. M Carroll, for app’lt; J. H. Cunningham, for resp’t.
   Mayham, P. J.

We see no ground for a reversal of this judgment. The complaint alleged that the defendant assaulted and beat the plaintiff and claims damages.

The answer denies the allegations of the complaint, and alleges that the plaintiff committed the first assault, and that all he, defendant, did was in the necessary defense of himself from the assault of the plaintiff. Upon the issue so joined, each party introduced some evidence in support of his theory, and it may be fairly said that there was evidence on both sides, and, therefore, a conflict to be determined by the jury.

The jury having settled that dispute by their verdict, upon sufficient evidence, this court will not disturb their determination of that disputed question of fact

But two exceptions seem to have been taken by the plaintiff on the trial. One to a question put to the defendant on his cross-examination, and one to the refusal of the-judge to grant a new trial on the minutes, on motion of the plaintiff.

We do not think that either of the exceptions were 'well taken. The question put to the defendant as a witness on his cross-examination was properly excluded as irrelevant and immaterial. The answer to the question, if admitted, could not properly have affected the question on the trial in this action. We think the motion for a new trial on the minutes was also properly denied.

The jury, having heard the conflicting testimony, was the proper tribunal to dispose of that conflict, and while they might upon the evidence have found for the plaintiff on the disputed questions of fact, there was sufficient evidence to uphold their verdiet for the defendant, and the court could not therefore properly set aside their verdict as wholly unsupported by the evidence.

Judgment affirmed, with costs.

PutjVAM and Herrick, JJ., concur.