author: Lewis, L.:

text:
    Magdalena Bremiller, Respondent, v. Buffalo, Rochester and Pittsburgh Railroad Company, Appellant.

      Contributory negligence — failure to look for an approaching train.

    Upon the trial of an action brought to recover damages resulting from injuries caused, as alleged, by the negligence of the defendant, a steam railroad corporation, it appeared that the plaintiff lived near a highway which ran easterly and westerly and crossed the defendant’s tracks, which ran north and south; that eight feet west of the defendant’s tracks there was a switch track upon which one or two box cars were standing at the time of the accident; that, after passing such cars, a person approaching from the west could look to the south for a distance of about 450 feet; that the plaintiff lived near the tracks and was familiar with the neighborhood; that the day was stormy and snow was falling. The plaintiff approached from the west, crossing the switch track and the intervening space, and as she reached the westerly rail of the main track she was struck by a train approaching from the south and received the injuries for which she sought to recover damages. She did not testify upon her direct examination that she looked to the south as she approached the crossing, and it appeared that in spite of the falling snow the train could be seen for a distance of over 200 feet.

      Held, that the plaintiff had. not shown herself to he free from contributory negligence, and that a judgment in her favor must he reversed.
    WARD, J., dissenting.
    Appeal by the defendant, the Buffalo, Rochester and Pittsburgh Railroad Company, from a judgment of1 the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 4th day of March, 1894, upon the verdict of a jury rendered after a trial at the Cattaraugus Circuit, and also from an order entered in said clerk’s office on the 6th day of August, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Henry G. Dcmforth, for the appellant.
    IF. G. laicllaw, for the respondent.
   Lewis, L.:

The plaintiff while attempting to cross the defendant’s tracks near the station at Riceville, Cattaraugus county, was struck and injured by one of the defendant’s locomotives, and she brought this action to recover the damages she sustained. There was ^ verdict for $450.

The defendant’s road at the place of the accident runs north and south, and crosses a highway which runs in an easterly and westerly direction: Four hundred and fifty feet south of this crossing was a curve and cut in defendant’s road which obscured trains. Up to that point trains were visible to a person standing upon the highway crossing.

There was a switch track westerly of the main track extending from the highway southerly, the easterly rail of which was eight feet distant from the westerly rail of the main track. The highway crossed the railroad tracks at such an angle that along the highway the distance between these rails was about fourteen feet. The station was on the easterly side of the railroad tracks and southerly of the highway.

The plaintiff resided in a house on the westerly side of the railroad lands and south of the highway. It was sixty-five feet from the door of her house to the center of the switch track. The plaintiff left her house on the 27th of February, 1892, to go to the station to take the train going north, due at the station at nine-fifty A. M.

The ground was covered with snow about one foot in depth. Plaintiff passed out into the highway and walked up a beaten track across the switch track toward the depot, and just as she reached the main track and had put one of her feet over the westerly rail, she discovered the train approaching from the south. She stepped back, but was not able to get entirely out of the way of the train, and was struck by the end of the cross beam of the engine and received the injuries complained of. One or two box cars were standing upon the switch track south of the highway; the northerly end of one of the cars was very near the beaten track in which plaintiff walked. One of plaintiff’s witnesses testified that a team driven past the car would have come within one foot of it. The morning was stormy. Some of the witnesses described it as a very severe storm, the wind blowing in every direction. It was snowing This was a flag station ; trains stopped at it only when signaled so to do.

The train in question had not been signaled to stop, and so passed the station without stopping, and at a speed of from twelve to twenty-live miles an hour.

There was much conflict in the evidence as to whether the approach of the train was announced by the ringing of the bell and the sounding of the whistle. We assume that the defendant’s negligence caused the plaintiff’s injuries.

The plaintiff, we think, failed to show herself free from negligence contributing to her injuries.

It was shdwn by uncontradicted evidence that there was at the time an unobstructed view to the south along the railroad track after passing the freight cars mentioned standing upon the switch track, for the distance of from 440 to 450 feet, and that the plaintiff could have seen the train at any time after it left the curve and cut, had she looked in that direction after she passed the cars upon the switch track unless her vision was in some way obscured.

Upon her direct examination the plaintiff failed to state that she looked in the direction the train was approaching after she passed the car. She said that she looked for the train as she left her house, and looked again when she saw the cars on the switch track ; but • upon her cross-examination by tlie defendant's counsel she did testify that she looked for the train after she passed the car, and did not see it until she had put one of hér feet over the west rail of the main track.

Neither the plaintiff nor any other witness testified that the snow was falling so fast as to prevent her from seeing the train. The engineer and fireman testified that they were able to see the platform of the station as they approached it for the distance of 275 feet.

Herman Kessler, one of the defendant’s sectionmen, was on the main track at the crossing shoveling snow and saw the. train when it. arrived within 200 or 300 feet of him. The plaintiff’s husband testified that he stood in the doorway of his dwelling when plaintiff left her house.

He said : “ I see her when she went out of the door, and she went up and went across some cars, and some cars stood there, and went across them and went on the railroad ; and I saw her when she got tlirowed off there, and she ivas right - under the cars.” Again he said “ I looked at her all the time ; did not take my eye off her till she got struck; I saw her struck.”

The plaintiff testified that as she left the house she saw Kessler shoveling snow by the cars, so that she was able, for the distance of sixty-five feet, to distinguish Mr. Kessler and see the shovel in his hands.

In the light of this evidence it cannot, with any propriety, be claimed that the falling snow prevented the plaintiff from seeing the train.

Kessler was standing at the end of the cars as plaintiff passed, but she did not see him. In trying to account for her not seeing him as she passed him she said: “I did not look at him when I passed by the cars; I looked just wheré I want to go; when I came out of my house he was in there by them cars around with his shovel; I cannot tell you if he was in the public road ; he was doing something with his shovel by them cars that stood there; I saw him when I went out of the house; I did not look more ; I did not look what he was doing there, not at all; I must have passed him when I went down to the railroad, because he works there by them cars, but I did not look at him as I was bundled up, you know.” Again she said : “ My head was.all bundled up.”

Tlie plaintiff was entirely familiar with the running of the trains and with all the surroundings. She had lived for years near the station. She knew that the train was due and was liable to arrive at any moment, for she was on her way to the depot to take it. She was, under the circumstances, called upon to be exceedingly vigilant in the use of her eyes as she knew the wind was blowing, and that it might prevent her from hearing the train. She walked from twelve to fourteen feet after passing the cars upon the switch before she reached the main track, and, had she looked in tlie direction of the approaching train during that time she would have seen it, unless the manner in which her head was dressed prevented it. Plaintiff was the only witness who testified that she looked in the direction of the train after she passed the cars. Her husband, who saw and carefully watched her from the time she left the house until she was struck by the engine, did not testify that he. saw her look for the train.

The plaintiff gave her testimony two years and more after the accident, and very likely believed she looked for the train after she passed the cars. The burden was upon plaintiff to show herself free from negligence contributing to her injuries by a preponderance of evidence; this, we think, she failed to do.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Bbadley and Davy, JJ., concurred; "Ward, J., dissented.

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


source: Caselaw Access Project

author: Bbadley, J.:

license: Public Domain

text:
    William Curry, Respondent, v. Rochester Railway Company, Appellant.

      Contributory negligence —failure to look when on a railroad track.

    Upon the trial of an action brought to recover damages resulting from injuries caused, as alleged, by the negligence of the defendant, a street railway corporation, there was conflict in the evidence as to the manner in which the accident happened, the plaintiff claiming that the car by which he was struck was preceded by another but a few feet away, and that when he stepped on the track in the rear of the first car he was struck by the second, the defendant, on the other hand, claiming that no car passed the place in question from the time the plaintiff left the sidewalk until the arrival of the car by which he was injured, and that the plaintiff stepped upon the track and remained there looking in. the opposite direction from that in which the car’was approaching.
    The defendant’s counsel requested the court to charge the jury that if they found that after the plaintiff left the sidewalk and started to cross the street only one car passed, and that that was the one which injured him, and that he stepped upon the track in front of that car without looking, and that had he looked he could have seen it coming, and that if he was, hy reason of his omission to look, knocked down and injured, his conduct constituted contributory negligence as a matter of law.

      Held, that the defendant was entitled to the charge requested, and that a refusal so to charge was an error for which the judgment must he reversed.
    Ward, J., dissenting.
    Appeal by the defendant, tlie Rochester Railway Company, from a judgment of the Supreme Court ill favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of April, 1895, upon the verdict of a jury rendered after a trial at the JVIonroe Circuit, and also from an order entered in said clerk’s office on the 30th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Charles J. Bissell, for the appellant.

      Chamberlain efi Page, for the respondent.
   Bbadley, J.:

On July 25, 1893, the plaintiff was struck and injured by an electric street ear of the defendant going westerly on "West avenue in the city of Rochester.

There were two tracks of the company in that street. The outer rails of the tracks were twelve and four-tenths feet from the curb. On the northerly track were run the westerly-bound cars, and on the other the cars ran easterly.

The plaintiff was proceeding to cross the street from the north side when he received his injury. This took place about eight o’clock p. M. The attendant circumstances under which it occurred were the subject of some conflict in the evidence. On the part of the plaintiff there is evidence tending to prove that the car by which the plaintiff was struck was preceded by another going west but a few feet from it, and that when he stepped on to the track in the rear of tlie first one, he was struck by the other. There is also ■evidence to the effect that he stopped upon the track, and stood there looking westerly when the accident occurred. And there is also evidence tending to prove and permitting the inference that no car going either. way passed there from the time the plaintiff left the sidewalk until the arrival of the car by which he was injured.

The court, having charged the jury, was requested by the defendant’s counsel to further charge them that if they found that after the plaintiff left the sidewalk and started to cross the street only one •car passed “to the west, and that was the car that injured him, and they find that he stepped upon the track in front of that car without looking, that had he looked he could have seen it coming, and he was, • by reason of his omission to look, knocked down and injured, that that conduct was contributory negligence, as matter of law, which bars a recovery here.”

In response to the request the court said : “ I charge you, if, by the exercise of reasonable care and caution, he could have discovered the car, then he was negligent. If, by the exercise of reasonable care and caution, he could not have seen the car, then he was not guilty of contributory negligehce.” Thereupon the defendant’s counsel excepted to the refusal to charge as requested and to the modification.

The charge following the request did not substantially cover the proposition, nor did the charge as then already made do so. There was evidence which permitted the jury to find all the facts included in the proposition which the court was so requested to charge. And if they had so found the facts, the conclusion that the plaintiff was not entitled to recover would necessarily follow. The refusal to so charge was error. (Thompson v. Buffalo Ry. Co., 145 N. Y. 196.)

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Lewis, J., concurred ; Ward, J., dissented.

Judgment and order reversed and a new trial granted, costs to abide the event.


author:
      Brad list, J.:
      Ward, J.:

text:
    Martin B. Campbell, Respondent, v. Alice Campbell, Appellant.

      Husband and wife — action to annul a marriage upon the groimd of a prior marriage —foreign divorce —jurisdiction — domicile.

    Ir. order to constitute a place the domicile of an individual he must have his residence there, with an intention to remain at that place permanently. The intent as well as the act must appear.
    Upon the trial of an action, brought to annul a marriage upon the ground that the defendant had a husband living at the time of her marriage to the plaintiff, it appeared that the defendant was mgrried in the State of New York in January, 1880, to one Loren Whitney;] that subsequently they lived in Pennsylvania until about April, 1888, at which time he -left that State and returned to the State of New York; that thereafter the defendant obtained a divorce from Whitney in an action instituted in a court of Pennsylvania having jurisdiction, service being made upon Whitney by publication; that subsequently the plaintiff and defendant were married in the State of New York,, and cohabited for four-years. There was no evidence tending to show that when Whitney left Pennsylvania he intended to make the State of New York his domicile, but it appeared that he knew of the divorce proceeding while it was in progress, and that after the decree was granted he married again.

      Held, that the burden was upon the plaintiff to prove that Whitney had ceased to have his domicile in Pennsylvania at the time when the action for a divorce was begun in the courts of that State;
    That as it did not appear from the evidence that such was the fact, both the parties must be deemed to have had a domicile in the State of Pennsylvania at the time when the divorce was granted there, and that, the proceedings having been taken in the manner provided for by the statutes of that State, the judgment of divorce was valid and effectual.
    Appeal by tlie defendant, Alice Campbell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 20th day of September, 1893,'upon the report of a referee, and also from an order made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 20th day of September, 1893, confirming the report of a referee and directing the entry of judgment thereon.

      A. M. Biwrell, for the appellant.

      JS. T. Ilollis and A. J. Robertson, for the respondent.
   Brad list, J.:

The plaintiff and defendant were married in March, 1885, at Jasper, in the county of Steuben, N. Y., and cohabited'as husband and wife until in April, 1889, and not thereafter. In 1892 the plaintiff brought this action to annul the marriage on the alleged ground that the defendant had a husband still living in the person of Loren Whitney, to whom she was married prior to her marriage with the plaintiff. She was married to Whitney in January, 1880, at Jasper, N. Y. Afterwards, for about two years preceding April, 1883, their place of residence was in the county of Tioga in the State of Pennsylvania. Whitney in that month left that State and went to the State of New York. And thereafter, in July of that year, the defendant commenced an action in -the manner ¡provided by the statutes of that State in the Court of Common Pleas of Tioga county, Pennsylvania, on the alleged ground that he had deserted her and on the further charge of adultery alleged to have been committed by him. Bo personal service of process was made, but notice was served upon him by publication, and it is assumed that all the proceedings in that suit were had and taken in the manner provided by the statutes of Pennsylvania for the prosecution of an action against a person absent from the State. The alleged cause was sufficient in that State for the relief sought by the action, and in January, 1884, a decree was therein perfected in terms and apparent effect dissolving the marriage contract between the defendant and Whitney. If the domicile of Whitney was in the State of Pennsylvania at the time the action was instituted and the notice published there, jurisdiction was acquired of his person although he may have been residing elsewhere. (Huntley v. Baker, 33 Hun, 578; de Meli v. de Meli, 120 N. Y. 485.) And in that event the decree in the Pennsylvania action would be effectual to dissolve their marriage relation of husband and wife. (Hunt v. Hunt, 72 N. Y. 217.) This is presumptively the effect without further proof on the subject, as since Whitney’s domicile had been in that State it would be deemed to remain there until it was made to appear that he had acquired a domicile elsewhere. (Crawford v. Wilson, 4 Barb. 505.) And the fact and intent must concur to that effect to produce a change of domicile. (Lyman v. Fiske, 17 Pick. 231; 28 Am. Dec. 293.)

Tbe plaintiff bad the burden of proving that the domicile of "Whitney in Pennsylvania had ceased by liis acquiring one elsewhere. The facts bearing upon the subject are furnished by the evidence of Whitney, who testified that he left Pennsylvania and went to San-dusky, Cattaraugus county, N. Y.; lived there a year; “ lived in Farmersville; worked there two months of 1884; then in March, 1884,” went to Sandusky. At the time of the trial, March, 1S93, he resided at Hinsdale in Cattaraugus county. He says that his uncle residing in Tioga county, Penn., wrote him frequently about, what was taking place there; that when the witness was living in Machias, Cattaraugus county, he was informed by letter that the-defendant “had just got a divorce from me.” He says this was in 1885 ; that lie afterwards, in that year, married another woman by whom- he has four children. He further testified: “ When I went away from Pennsylvania in 1883 I took part of the goods. Non© of my- goods were left behind in Pennsylvania that I know of.” He added that he has not since voted in that State, but has voted repeatedly in the State of N ew York. He does not state when he-first voted after he came to New York. His evidence shows that he has acquired a domicile in the State of New York, but the question is, does it appear by the evidence that he had done so when the action in Pennsylvania was instituted and the notice was published there?

The evidence is not very satisfactory in • that direction. When a person has no family elsewhere the place where he resides is- presumptively his domicile unless it appears that he is residing there for some specific purpose which does not characterize it as such, but it is otherwise when lie is the head of a family residing at some other-place. (Huntley v. Baker, 33 Hun, 578.) His residence may be in one place and his domicile in another. The question is one of intent as well as act. In Matter of Thompson (1 Wend. 45) Mr. Chief Justice Savage quoted from Vattel. with approval the remark that “ The domicil is the habitation fixed in any place with an intention of always staying there.” And in Matter of Roberts’ Will (8 Paige, 524) the chancellor said: “I think it cannot be doubted that the actual residence of an individual at a particular place with the animus manendi, or a fixed and settled determination to make that his permanent residence for the remainder of his life, constitutes that place his domicile, at least until there is some ■evidence that his intention to remain there has been abandoned.” It may, however, be deemed sufficient to constitute the domicile of ■a person in a place that his residence is there with the intention to remain at that place permanently. (Gilman v. Gilman, 52 Maine, 165; 83 Am. Dec. 502.) The intent as well as the act must be made to appear. (Dupuy v. Wuris, 53 N. Y. 556.) As of the time the action was commenced in Pennsylvania it simply appeared that Whitney had left there and gone to Sandusky in the county of Cattaraugus about three months before. No circumstances as of that time were proved to show his intent to make his residence there permanent. What, if anything, he had done there to characterize his purpose in that respect does not appear. And although Whitney was called as a witness to support this action he does not give evidence of his intent then to make it permanently his place ■of residence. His intention, if such was the fact, to abandon his ■domicile in Pennsylvania did not have the effect to create another where he happened to stop unless lie also intended to make his residence at such other place permanent. lie did not lose sight of the fact that his wife remained in Pennsylvania. He had liis ■correspondent to inform him what was going on there, and when ■advised that his wife had obtained the divorce he treated it as ■effectual and proceeded to obtain another wife. If Whitney had acquired another domicile at the time the Pennsylvania court sought to - obtain and take jurisdiction of him as a party the fact ■should be made to appear quite satisfactorily before annulling the marriage in question. The cases to which our attention has been ■called where the divorce decrees have been adjudged void for want •of jurisdiction, are cases where the parties seeking them have left the State of the domicile of the husband and wife and gone elsewhere to seek the forum. (Kerr v. Kerr, 41 N. Y. 272 ; Hoffman v. Hoffman, 46 id. 30 ; Williams v. Williams, 130 id. 193; Vischer v. Vischer, 12 Barb. 640.) The same may be said of the Baker Case (76 N. Y. 78) and O'Dea v. O'Dea (101 id. 23).

In the case at bar the wife remained in the State which had for ■some time been t-lie domicile of herself and husband, and there instituted her suit, in which the decree of divorce was granted. The ■distinction between her case and those cited was observed by tlie court in Matter of Morrisson (52 Hun, 102). The affirmance on review by the Court of Appeals was without opinion (117 N. Y. 638). Whether the latter court adopted both or only one, and which of the propositions announced at the General Term, does not appear. The remark in the opinion of the court in Rigney v. Rigney (127 N. Y. 412, 413), in support of the remedy of divorce by a resident of the State against the husband or wife who is a resident of another State, may be deemed to relate to the effect of the judgment within the State where it is recovered. This is in accordance with the views, of the court in Williams v. Williams (supra). (See, also, Scragg v. Scragg, 44 N. Y. St. Repr. 845.)

It may be assumed upon the facts found by the referee that the-judgment of divorce obtained by the defendant in Pennsylvania was valid and effectual in that.State. Her action was in the nature of a proceeding in rem to annul the marriage contract and relation for adequate cause. When one of the parties to such relation deserts, the other, and seeks and acquires a domicile elsewhere, and the latter remaining in the State which, up to the time of such desertion, was their common domicile, recovers a judgment of divorce without personal service of process or appearance of the defendant in the action, whether or not the judgment is effectual in behalf of the party obtaining it beyond the boundaries of the State in which it is recovered, has not necessarily been presented for determination by the courts of the State in any case to which our attention has been called. In such case the status of each of the parties may be determined by the State which is his or- her domicile. The res on which the judgment in such ease is operative is that within the State where recovery is had, and there is no jurisdiction over the res in the State of the domicile of the other party. The latter, therefore, it would seem, could not make the judgment available beyond the State where it was rendered.

It is not deemed necessary, for the purposes of this review, to proceed to the consideration of the question whether in the supposed case a judgment could operate to have any and what effect upon the status of the party obtaining it beyond the State where a decree is had.

The judgment should be reversed and a new trial granted, costs of this appeal to abide the final award of costs.

Davy and Lewis, JJ., concurred.

Ward, J.:

I concur in the result reached in this case, and in addition to the reasons given in the opinion of the court for reversal, I am of the opinion that the decree the defendant obtained from Loren Whitney, her former husband, in Pennsylvania was valid everywhere. The defendant and her former husband were domiciled in Pennsylvania, and while so domiciled the husband committed adultery and deserted his wife (the defendant). Desertion and adultery are each a cause for absolute divorce under the laws of the State of Pennsylvania. After the commission of these offenses the husband left Pennsylvania and came to the State of New York, the wife retaining her residence in Pennsylvania, and while so residing there brought an action for divorce in Pennsylvania for the causes mentioned, and obtained suclr divorce according to the laws of that State. The husband by leaving the State could not take with him his liability to ■be divorced from his wife according to the laws of her domicile, nor was the wife obliged to pursue him into the jurisdiction to which he had fled. It is true there was no personal service on or appearance by the husband in the action, but that did not deprive the Pennsylvania courts of jurisdiction over him. The cases cited by'the plaintiff in this State are not like the one at bar. Those cases mainly arose where parties left one State, took a fictitious residence in another State, and, in fraud of our laws, sought to obtain divorces ■against residents of our State for causes unknown to our laws and without obtaining jurisdiction of the defendants.

Judgment reversed and a new trial granted before another referee, ■costs of this appeal to abide the final award of costs.


author: Lambert, J.:

text:
    Asa Cheney, Appellant, v. Oscar F. Price and Others, Respondents.

      Will■ — ■action in the Supreme Court to determine its validity • — the issue in that court — test of capacity and scope of the inquiry — “unsoundness of mind" — capacity.

    ’The issue in an action brought in the Supreme Court under the provisions of chapter 591 of the Laws of 1892, to determine the validity of a will admitted to probate in a Surrogate’s Court, is limited to the question whether the writing .produced is or is not the last will of the testator.

      The statute was not intended to change the conditions under which a person is permitted to make a testamentary disposition of property by the Eevised Statutes providing that all persons except idiots, persons of unsound mind and infants may devise real estate and that males over eighteen years of age may bequeath personal estate.
    THe range of inquiry, the measure of capacity, and the freedom of action, as defined by the Eevised Statutes and interpreted by the courts, must prevail in reaching a determination of the issues in such an action in the Supreme Court.
    Within the meaning of the term “unsoundness of mind,” as mentioned in the statutes, the various phases of mental condition defined by the terms “ insanity,” “mental derangement,” “unsoundness” and “monomania” are within the range of an inquiry to determine whether or not a person, at the time of the execution o'f an alleged will, was of “unsound mind.”
    A testator, in order to have sufficient capacity to execute a will, must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them.
    It is not essential to the validity of a will that the testator be possessed of the vigor of body and resolution of mind which he possessed while in the prime of life, but simply that he have sufficient memory and judgment at the time of the execution of the instrument to make it his deliberate and intelligent act.
    Upon the trial of an action brought to determine as to the validity of a will, it appeared that the testator was about sixty-eight years old; that on or about the 15th day of December, 1891, ho had an attack of apoplexy, w'hick finally resulted in partial paralysis; that subsequent to such attack his mental and physical condition was variable, his conversation at times being unintelligible, while at others it could be clearly understood; .that the will in question was made on the 1st day of February, 1892, and that he died on the 20th day of April, 1892.
    On the third and on the twelfth of January he attended to a matter of his business of considerable importance; he also selected as a person to draw the will an attorney who had been his counsel for a considerable period; he made a will upon the twenty-ninth of January, which, after consultation with the person who was taking care of him, he directed should be destroyed, and after consultation with his counsel, he made a new will, by the terms of which he gave $4,000 of an estate of about §27,000 to a hospital, leaving the rest of the estate to pass under the laws" of descent and distribution.

      Held, that the testator was, within the meaning and intent of the Statute of Wills, a person of sound mind and memory and was competent to make a will.
    Appeal by tlie plaintiff, Asa Cheney, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 17th day of September, 1894, upon the decision of the court, rendered after a trial at the Chautauqua Circuit before the court without a jury.

      William II. Henderson, for the appellant.

      Eleazer Green and Frank W. Stevens, for the respondents.
    Judgment affirmed, with costs, on opinion of Lambert, J., at Circuit.
    Present — Lewis, Bradley, Ward and Davy, JJ.
   The opinion of Lambert, J., was as follows :

Lambert, J.:

Spencer Cheney executed a paper writing February 1, 1892, as his last will and testament, and thereafter died on the twentieth of April of the same year, by the terms of which he gave to the defendant association $4,000, and the balance of his estate was left to be governed by the laws of descent and distribution. The estate consisted of $20,000 personalty and $7,000 in realty. The plaintiff and the defendants Cheney were the brothers and only heirs at law and next of kin of the deceased. The instrument was offered for probate in the Surrogate’s Court and the heirs at law filed objections to- its probate on the ground of incapacity and undue influence. Such proceedings were had that thereafter, and on the 30th of November, 1892, the instrument was admitted to probate in the Surrogate’s Court of Chautauqua county as a will of real and personal property. In December following this action was brought under the authority of chapter 591 of the Laws of 1892. By this statute the issue is limited to the question whether the writing produced is or is not the last will of the testator. While this statute defines and limits the inquiry in the action it was not intended to change the conditions under which a person is permitted to make a testamentary disposition of property by the Revised Statutes, providing that all persons, except idiots, persons of unsound mind, and infants, may devise real estate, and males upwards of eighteen years may bequeath personal estate (2 R. S. 56, 60), so that, notwithstanding the provisions of chapter 591 of the Laws of 1892, under which the action is brought, the range of inquiry, measure of capacity and freedom of action, as defined by the Revised Statutes and interpreted by tlie courts, is to prevail in reaching a determination of the issues made in this action. There is no= claim made, nor could there well be under the proof taken, that tliedeceased at the time of the execution of the instrument in question, or at any other period in his lifetime, ivas suffering from the infirmities of idiocy, so that the issue is narrowed to the‘question whether the testator at the ‘time of the execution of the will in question was a-person of sound mind and was acting free from restraint and undue-influence. Within the meaning of the term “ unsoundness of mind,”' as mentioned in the statutes, the various phases of mental conditions-as defined by the terms “ insanity,” mental derangement,” unsoundness ” and “ monomania ” are held by the courts to be within the range of inquiry in determining whether or not h person at the time of executing an alleged will was a person of unsound mind.” These terms are of such variable significance that their value in any given case will depend entirely upon the relation that they bear to the particular person in connection with the particular act under inquiry. They simply represent or describe a sliding scale of mental disorder or enfeeblement, expressing different degrees of determination or its absence, mental ability or its absence. The precise line where disability or incapacity commences cannot be defined by the courts by an unvarying rule, and for that reason each case is tested in the light of general rules by the proof and circumstances attending it. From the multiplicity of decisions in this State upon this subject that have gone into the reports one general rule seems to have been so formulated in a decision of the Court of Appeals as to have met with favor by the courts pronouncing judgment in cases of this character. That definition of the law is as definite as the subject will admit of, and it seems to have been adopted by counsel on either side of this controversy as the basis lipón which their conclusions rest in the disposition of this case. In Van Guysling v. Van Kuren (35 N. Y. 70) Smith, J., speaking for the court, used this language': lie must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold' them in his mind a sufficient length of time to perceive, at least,, their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”

With this rule in mind we come to the question whether or not the writing produced is or is not the last will of the testator; and the solution of that question depends on whether the testator was of sound and disposing mind and memory at the time of the execution of the instrument, and whether the will itself is the free and uninfluenced act of the testator.

The deceased ivas about sixty-eight years of age; had lived in the township in which ho died nearly all his life, and had never married. A short time before the 15th day of December, 1891, he had a fit of apoplexy which finally resulted in partial paralysis. He had been all his life an active, intelligent and industrious man, giving personal attention to the details of his business, which consisted in running a farm, loaning money upon securities, making investments and collecting interest accruing from the same; was reticent respecting his business affairs to a remarkable degree; was a person of determined will and positive in liis'opinions; on friendly terms with his relatives, consisting of his three brothers and their families, although they knew little about the details or nature of his business transactions; was a genial and social person with those of his acquaintance, but, having occupied rooms alone, had contracted the habit of reticence respecting his business affairs. His affliction, which occurred shortly before the 15th day of December, 1891, was first manifested by substantial unconsciousness and later by inability to articulate so that he could not be understood without great difficulty and had a changed expression and inability to move about. The evidence discloses that he rallied to a certain extent within a few days after the attack and that the disturbance of the vocal organs was less perceptible at periods up to within a short time before his death, which occurred on the 20th of April, 1892. It is fairly to be inferred, giving credit to the evidence of each and every of the witnesses who testified upon the trial, that on some days he could converse with greater ease and felicity than on others. It is equally clear from the undisputed evidence in the case that after the deceased suffered this affliction in December he did not give the attention to the transaction of his business that had been- his habit before ; that in conversation with others he did not evince the interest in social affairs that he previously had, did not attempt to lead in conversation or introduce any subject as a topic of conversation with those with whom he came in contact. There was a noticeable and pronounced change in his life so far as the same could be evidenced by his manifestations towards others and himself. Nearly all of the witnesses, including the doctor in attendance during his sickness, advanced the opinion, based upon the circumstances attending interviews had with the deceased and his manifestations, that his conduct,, acts and sayings impressed them as irrational. The doctor in attendance advanced the general opinion, from observance made at various times during his attendance upon the testator, that he was a person of unsound mind and was incompetent to transact any business requiring consideration and judgment.

Upon the established existence of the facts narrated the plaintiff contends that the paper writing produced is not the will of the deceased for the reason that at the time he executed it he was not of sound and disposing mind and memory. The material inquiry is not the mental condition of the deceased on any of the days succeeding his affliction except for the purpose of determining what his condition was on the 1st day of February, 1892, when he executed the instrument produced as his last will and testament. So that if the evidence fairly discloses that, notwithstanding he liad undergone this marked mental and physical change, as described by the witnesses, at the time of the execution of the paper writing, the deceased had sufficient force and 'integrity of mind to deliberate upon the subject of the disposition of his property, having regard to its nature and amount, the relatives who might or should be the . objects of his bounty, and form a rational judgment thereon without prompting, then the question directed by the statute to be inquired into, should be answered in the affirmative. It is not essential to the validity of his act that he be possessed of the vigor and resolution of mind and body that he possessed in prime of life, but simply that he had sufficient memory and judgment upon the occasion of making the instrument to make it his deliberate and intelligent act. The attesting witnesses each testify that at the time of the execution of the instrument the deceased signed the same after it had been read over to him, and declared it to be his last will and testament; and they also testify, especially the draughtsman, that they had no trouble in conversing with or understanding the directions given by the deceased. This is the particular time under inquiry. The witnesses to the will are the only ones who speak particularly with reference to the condition of the deceased upon this occasion, and if their evidence is fairly sustained from the circumstances and probabilities then the plaintiff must fail. Upon one side we have the evidence of the subscribing witnesses, supported as they may be by the probabilities to which the circumstances give rise; upon the other the evidence of Dr. Lenhart, who testifies that when he was called to attend the deceased on the loth day of December, 1891, he found him, as before stated, in an unconscious condition, wholly unable to recognize any one or appreciate his surroundings, and that while thereafter he rallied to a certain extent, at no time during his sickness was he able to converse intelligently upon any subject, and at times seemed better than at others; that his first visit was on the fifteenth of December, and the last on the fourteenth of March following. It is also disclosed in his examination that he did not see the deceased between the fourteenth of January and the seventeenth of February, so that his evidence is not of great value in disposing of this case except so far as the contention of the plaintiff is sustained by the opinion of the doctor as a medical expert, when he testifies that the deceased was suffering from a disease of the brain, and that, therefore, the conclusion should be drawn that at no time after his affliction was he competent to transact any business. The probative force to be given to this opinion is lessened to a considerable extent by the statement of the doctor, that on some days the deceased was better able to express himself than on others, so that it can hardly be said that the evidence of the doctor, although much relied upon by the plaintiff to sustain his allegation, is entitled to a conclusive inference. In reaching this conclusion we are not unmindful of the long acquaintance between the doctor and the deceased, taken in connection with the trained skill of the witness to determine the mental status' of the testator at the time and times of which he speaks, yet the conclusion is forced, in the light of the other evidence in the case and of the probabilities, that the doctor may have been misled as to the continuing condition of his patient.

The evidence of Hr. Hall relates to a period of time upwards of two months after the execution of the will, and to a time when it must be conceded that the deceased was nearing the period of dissolution, and, therefore, his evidence must be regarded as of slight importance as’proof bearing upon the substantial issue in the case.

The evidence of the witness Mark Cheney is entitled to greater consideration as evidencing the mental and physical condition of the deceased, as he relates conversations and describes the conduct and acts of the deceased at short intervals during his entire sickness. y He testifies that on December eighteenth he called and found the deceased figuring on a statement from the cheese factory, and that the deceased informed him that he was unable to make it out; he next saw him on the twenty-fourth of the month, when he states that the deceased had rallied some, so much so that lie could distinguish some of the words he tried to utter; that he talked with him about his medicine, and that deceased told him it was doing him no good, that his bowels did not move and that the victuals he ate did him no goodthat thereafter he saw him once or twice a week, and would generally ask him how he was, and that sometimes he-would answer.and sometimes he would not; that during all this period he noticed there was a difficulty in his speech to articulate words or to connect sentences, and that the expression of his face had -changed; that there was a wild and staring look from his eye and a restlessness, moving in -his chair or in his bed, changing positions often, and that he had a sour and melancholy look on his face. These were the observations that the witness made during the entire period ensuing after the eighteenth of December until the time of his death. Again he refers to the occurrence that took place on the twenty-first of February, when he took charge of the deceased during the day. He relates that as he approached the house the deceased was at the door and said : “You are the boy I am looking after; I came pretty near dying yesterday. There was not a soul in the house. My breath gave out, or I got short of breath and I hung a flag out of the door.” Later he said he had no circulation in his left arm nor in his side.. All of these statements might be true. Certainly from the' statements of Dr. Lenhart it would appear that the deceased was quite rational upon the subject of the failure of •circulation in the left arm and side, as it was stated by the doctor that it was the left side of the deceased that was involved by the stroke of paralysis. Later in the day the deceased said, in answer to the inquiry if they did not cook anything for him : “ Yes, but a hog wouldn’t eat it.” He told me he thought my brother and the doctor were laying a plan to poison him or get him out of the way. That was the last conversation that the witness ever had with him. These last statements by the deceased would indicate a deranged condition of the mind at that time, and that might be true and he yet have been entirely free from it at the time of the execution'of the will, twenty days previous thereto. The'witness, however, states that upon his second visit he found that the deceased had rallied from the condition in which he was in upon his first call, and that it was evidenced by his ability to articulate so that in a measure he could be understood. It will be observed that the occurrences related by the witness, so far as they are found in the expressed declarations of the deceased from which he was impressed that they were irrational, in no manner related to the subject of his property or his relatives, and, therefore, it cannot be said that they necessarily influenced the deceased to select a legatee to the exclusion of his relatives. The importance to be attached-to the evidence of this witness relates wholly to the changed condition of mind of the deceased, and to show its degeneracy and decay as bearing upon his testamentary capacity.

The evidence of A. Morrell Cheney may be referred to for the purpose of determining the strength of mind of the testator at two given periods before the execution of the will. He states that he called upon the deceased December fourteenth, that he had very little conversation with him, and that he called again on January third, and found him sitting in a rocking chair with his usual clothes on except his coat, and the witness said : I asked him if he sent for me, and he said he did ; I told him that was the reason I come up, and then he says, ‘ I didn’t know but you wanted those papers; ’ I says, c What papers ? ’ he says, Those assignments,’ and went into his room, his bedroom, and come out with a bundle of papers, and said he had got them sorted out, if I wanted them I had better take them, and began to open them up, some of them, and says, ‘ Here is this large mortgage and this small mortgage and some is paid on it;’ he said he didn’t know how much was paid on another one; * * * he took a pencil out of his pocket and. dated one of them at the bottom January 3d, 1892; * * * he made quite a bad-looking date of it; then lie handed his pencil to me and says, hYou date the rest of these,’ and lie sorted them out and handed them to me and I did write January 3d on as many as he asked me to.” From a subsequent examination of tins witness it is disclosed that the assignments referred to were of mortgages to the amount of about $5,000, and that these assignments were prepared, all but one, in 1889, at a time when it is conceded that the deceased was in the full possession of his mental capacity. The inference, therefore, is quite clear that the deceased had contemplated the transfer of these mortgages to the witness for quite a long period of time, and that at this time, with a view of carrying out the purpose previously formed, he sent for the witness and made a tender of the gift. This transaction, ‘rather than indicating incompetency to deliberate and execute a judgment formed before his sickness, tends to show that there was still left that degree of intelligent thought and purpose of mind to enable him to make a disposition of his property. The witness then related that the deceased asked if he had received a dividend from his bank stock, and when he told him he had, then stated that he (the deceased) had not received his dividend. When an examination of the credits upon his pass book disclosed that he had received the said dividend, he then stated that he did not know it. While this evidence discloses that the deceased was not as accurate and acute as he had been when in health it does not necessarily disclose that he was bereft of all reason and memory. The contrary appears. He remembered the fact that they owned stock in the same bank and that the time had passed for dividends tobe declared, and the fact that he did not observe the credit upon his bank -book was only such an error as might have been made by a less accurate man when in full health. Again, witness states that on January twelfth he called for the purpose of' obtaining the proxy of the deceased to vote his bank stock at the election of officers, and that the deceased signed his name without question to the blank prepared. This conduct upon the part of the deceased was within the range of reasonable prudence when viewed in the light of the circumstances existing. The witness was his nephew, and was held in such high regard and confideuce that only nine days previous he tendered him a gift of $5,000 in execution of a design formed nearly three years before.

Miss Arnold testified that she saw the deceased before Christmas and then again about the first of March, and that he talked better than when she first saw him; that he answered all her questions ; that she stated to him that Monis Cheney’s wife was sick and that she came down tc see her, and that the deceased asked her what she thought of the condition of Morris Cheney’s wife. The evidence of this witness certainly indicates intelligent and reflective thought upon the.part of the deceased, and she stated that the appearance, •conversation and conduct of the deceased upon that occasion impressed her as rational.

The witness Morris Cheney testifies that he called upon the deceased on the eleventh or twelfth of December and found him in a low condition; that he was nervous and excited, and had a wild look in his eyes, and that he, the witness, could understand very little of what he said on account of the difficulty with his throat or his tongue; that deceased -would start to tell something and would say, “ I can’t say what I want to.” Again, on the thirteenth or fourteenth the witness testifies that ho found him in the same condition and presented a check for work done and the deceased said that the witness would have to sign his name, as he could not, and that he gave him three checks to pay his taxes with without asking the amount of the taxes. There seems to be nothing in the evidence of this witness so far that would indicate anything more than the impairment of his physical powers; that in these transactions the deceased responded intelligently so far as his acts demonstrated his thinking capacity, while, undoubtedly, as the witness states, he had difficulty in giving •expression to his thoughts in consequence of the paralysis to his left side, from which it was found that he was suffering. It also appears that on the twenty-fourth of December the witness took the deceased to his own home, where he continued to reside up to the time of his death. The witness was asked to describe the condition of the deceased down until March, and he answered: “Well, sometimes he couldn’t talk very plain; he would start out to tell something and ask something and his tongue or something would not work, and then he would forget before he could get to talking again; say he had forgotten ; he couldn’t tell what he wanted to.” Again, “ there were times lie could talk plainer than he could at others; sometimes he was very nervous ; then he couldn’t talk hardly any; * * it appeared to flurry him.” The witness further said : I can’t make any more than one description that covers all the time, he had a wild look,- he never laughed or smiled while he lived with me; he was very solemn and melancholy about his talk.” The fair consideration of the evidence of this witness discloses that the deceased had changed in demeanor, mentally and physically. That certainly must have been the consequence following his affliction, but it is to be obseryed from the evidence of this witness, as well as from that of the others, that at times the deceased could talk more readily than others, and an analysis of his testimony shows that whatever the deceased did say was intelligent upon the subject upon which he was addressed, . and, therefore, the inference is permissible that his affliction did not operate so much upon his mental faculties as the muscles connected faith the organs of speech. The same observation may be addressed to the evidence of the remaining witnesses who were sworn for the plaintiff upon this same general subject, and aside from the incident related by the witness Mark Cheney, of the plot that the deceased conceived was set on foot by the doctor and Morris to poison him, and the fact that he insisted that he had no stomach, there is no evidence to show that the deceased at any time was laboring under an alienation of mind to the extent even of a delusion. The evidence discloses that the deceased by some means sent for the draughtsman of the will to come and see him. This selection indicates judgment from the fact that Mr. Wicks had been his counsel for a considerable period of time. After the execution of the first will, which occurred on the twenty-ninth of January, the deceased, after consultation with Morris Cheney, in whose care he then was, evidenced a previously-formed judgment to either destroy or make some change in the disposition of his property by a written communication for him to return with the will that he had previously executed. Upon the return on the evening of the first or the morning of the second of February the deceased directed the destruction of the will he had made, and, after consultation with Ills counsel respecting the defendant association which he had made a beneficiary to the amount of $4,000, lie reasserted his intention to make the association his beneficiary in the same amount as in the previous will, and while the draughtsman was in an adjacent room preparing the will for execution Morris Cheney testifies the deceased called him into his room for advice respecting the gift of $1,000 to the defendant association. The witness said “ He asked me what he better do’about giving the hospital that four thousand dollars, and I reminded him of the previous talk we had had Sunday, the day before; he said Mr. Wicks didn’t want him to change it; that the four thousand dollars would just- take them out of debt; he said he believed he would let it go just as it was ; that four thousand dollars was not a very big pile.” This evidence is important for a two-fold reason : (1) It indicates that the testator was able to give expression to his thoughts with a readiness and facility of language that could scarcely be attributed to a person without the ability of expression, and (2) it indicates not only a comprehension of the business at hand, but that it was made the subject of deliberate thought and reflection by the deceased. It also indicates that the deceased did not rely upon the suggestion or expressed wish of Mr. Wicks, because he called upon his nephew,- with whom he -was filing, for his advice upon the subject of this gift, and, for the purpose of emphasizing the individual judgment and purpose of the deceased to make the gift, we find that he failed to pay deference even to the opinion of the witness for whose advice he called.

Excepting the evidence of the attesting witnesses and of Morris Cheney no person speaks upon the condition of mind as manifested by the deceased upon the occasion of the execution of the instrument in question, and so far as concerns the question of the ability of the deceased to consider the amount and character of liis- estate and the person or persons who might have a claim to his bounty and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relation to each other, and to be able to form some rational judgment in respect thereto, it cannot be doubted from their evidence that he possessed such ability. This conclusion is further unmistakably evidenced by the letter written on the next succeeding day to Mr. Wicks, in whose custody he placed the will for safe-keeping, to destroy it. The letter is in the handwriting of the deceased, and is so explicit, and yet so comprehensive, that it can leave no doubt but that the testator fully appreciated the act he liad performed, in the execution of the will on the previous day, and the results that would follow in case it was allowed to remain undestroyed. While the ineffectual attempt to destroy the second will as well as the first, so soon after their execution, indicates a failing and vacillating mind, it cannot be regarded as conclusive that the testator did not have testamentary capacity, when considered in the light of the evidence given of the occurrences attending the execution of the instrument, and -the declarations of the testator subsequently made respecting it. At most it is but a circumstance proper to be taken into account as bearing upon the mental condition of the deceased, and in and of itself, and in connection with the evidence given relating to the mental and physical condition of the deceased during his last sickness, does not meet the force of the evidence given to the effect that the testator comprehended the legal effect of the execution of the paper offered as his last will.

It has been suggested that the deceased had no knowledge of the defendant association nor its object, or relations with the parties under whose management its affairs were conducted, and that, therefore, it is improbable that the testator selected the association as the object of his bounty to the exclusion of his blood relatives. There is little force in this position.' The testator, but a short time before the execution of the instrument in question, sought to carry out by a gift of $5,000 worth of securities to A. Morrell Cheney, in execution of a contemplated purpose that had existed for upwards of two years, thereby intending to exclude his three brothers from the enjoyment of that portion of his estate, so that it is but natural to infer that, inasmuch as the attempt to divert that portion of his estate from his brothers was frustrated by the refusal of the donee to accept the gift, the testator should look elsewhere for a worthy object. The evidence discloses that he was an intelligent man and interested in social and public affairs, and, having evinced a desire to make a disposition of about $5,000 in hostility to the claims that the law would give to his brothers upon his property, it is but fair to presume that he selected the defendant association as a medium through which he could accomplish a worthy object.

The validity of the will in question is assailed in the complaint upon the charge of undue influence, but in the submission of the •case there was no claim made that the charge had been sustained upon the proof, nor could it well be made as proof of the fact is not presented by the evidence. The contrary is demonstrated from the evidence of the witness Morris Cheney, when, he states that, while the will was being prepared, the deceased sought an expression of his judgment upon the propriety of making the defendant society his donee to the extent of $4,000, and, after receiving the same, declined to act upon it in preference to his own judgment. This •clearly demonstrates that whatever suggestion or importunity Mr. Wicks may have introduced in behalf of the society, was held in ■abeyance by the deceased until after the interview with Morris, and then it is disclosed that he concluded to make the bequest in accordance with the instructions for the preparation of the will. These ■circumstances refute all inferences of restraint. After carefully considering the evidence in this case, the circumstances and probabilities, the conclusion is forced that the instrument in question should be declared by the judgment of this court to be the will of the testator.

A bill of costs is allowed to the plaintiff and the defendants, to be paid out of the estate.


author: Per Curiam :

text:
    The People of the State of New York ex rel. The Bleecker Street and Fulton Ferry Railroad Company, Respondent, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments of the City of New York, Appellants, Impleaded with The Board of Aldermen of the City of New York.

      Costs in pi'oceedings by certiorwi unde)' chapter 269 of 1880 a/re governed by said act.

    Costs in proceedings by certiorari to review assessments under chapter 269 of the Laws of 1880, are governed by such act and not by the provisions of the Code of Civil Procedure.
    Under section 7 of chapter 269 of the Laws of 1880, the costs' on appeal when allowed against assessors or other officers, upon a reversal of their proceedings, must be taxed as costs on appeals from orders under section 8239 of the Code of Civil Procedure.
    Appeal by Edward P. Barker and others, as commissioners of taxes and.assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of July, 1895, granting the relator’s motion for anew taxation of the costs herein and directing a retaxation of the same.

      James M. Ward, for the appellants.

      George L. Hoffmam,, for the respondent.
   Per Curiam :

People ex rel. Oak Hill Cemetery Association v. Pratt (66 Hun, 578, affirmed without opinion in 138 N. Y. 655) is in point and controlling upon the question presented on this appeal. In that case it appeared that the Court of Appeals made a final order in favor of the relator with costs in General Term and Court of Appeals. The clerk taxed the costs as on appeals from orders granted on motion. The Special Term ordered a retaxation and directed that costs in the Court of Appeals should be taxed as in an action. In reversing the Special Term and sustaining the taxation made by the clerk, the court held that the costs in proceedings by certiorari to review assessments under chapter 269. of the Laws of 1880 are governed by that act and not by the provisions of the Code; that under section 7 of that act the costs on appeal when allowed against assessors or other officers, when proceedings are reversed, must be taxed as costs on appeals from orders under section 3239 of the Code of Civil Procedure. In view of that decision it must be held that White v. Anthony (23 N. Y. 164) and Brown v. Leigh (50 id. 427) do not apply.

The order appealed from should be reversed, with ten dollars costs and disbursements and the taxation of the clerk confirmed.

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order reversed, with ten dollars costs and disbursements and taxation of clerk confirmed.


text:
    Joshua Samuel Piza, Respondent, v. Elliott L. Butler, Individually and as Treasurer of The New York Fur Cutting Company, and The New York Fur Cutting Company, Appellants, Impleaded with Others.

      Action against a corporation and an officer thereof, under Oode of Oivil Procedwre, sections 1781, 1782 —• an injunction pendente lite and a receivership sustained.

    In an action brought by an officer and director of a corporation against a co-director and the corporation, under sections 1781 and 1782 of the Code of Civil Procedure, to compel such director to make restitution to the corporation for alleged violations of trust, for the appointment of a receiver and for other relief, it appeared that if the facts were as stated by the plaintiff and one of his co-directors, the plaintiff was entitled to some portion of the relief demanded in the complaint.
    Upon an appeal from an order granting, a temporary injunction and appointing a receiver,

      Held, that as it appeared that in order to make the judgment effectual it was desirable to preserve the present status, the granting of an injunction pendente lite was a proper exercise of the discretion vested in the court, and that the court had power in such an action to appoint a receiver.
    Appeal by tlie defendants, Elliott L. Butler, individually and as treasurer of Tlie New York Fur Cutting Company, and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1895, en joining and restraining the defendants from doing and performing certain acts respecting the affairs of The New York Fur Cutting Company and appointing a receiver of the property of the said New. York Fur Cutting Company.

      Louis Y. Booraem, for the appellants.

      L,orenzo ZTllo and Ernest E. Baldwin, for the respondent.
   Per Curiam :

The plaintiff, who is one of the three directors and the president of the New York Fur Cutting Company, brought this action under and in pursuance of the provisions of subdivisions 1, 2, 5 and 6 of section 1781 of the Code, his authority to bring it being affirmed by section 1782 of the Code. (Gildersleeve v. Lester, 68 Hun, 532.)

Tlie relief demanded in the complaint is: (1) That the defendant Elliott L. Butler, as treasurer and director of the corporation, be compelled to account for his official conduct in the management and disposition of the funds and property of the corporation.

(2) That he be compelled to pay to the corporation, or the holders of the notes signed by the manager, all the- moneys which, in violation of his trust, the defendant Butler caused to be made payable by the corporation.

13) That the alienation of the property of the corporation made by the defendant Butler by pledging the same for his own use and benefit be set aside, and that he be compelled' to return it and to pay all damages sustained by reason of such alienation.

(4) That he be restrained from collecting any part of the insurance moneys due or claimed to be due by reason of the burning of ■ the property of the corporation, or from paying out or parting with any of the property, securities or assets of the corporation, or from in any way interfering with them for the purpose of paying to himself or to his firm, Belt, Butler & Co., the amounts claimed to be owing to them by the corporation.

(5) That a receiver be appointed.

The New York Fur Cutting Company is a domestic corporation, organized in May, 1894, and succeeded to the business of a similar company having the same name, organized under the laws of New Jersey. Its three directors were the plaintiff, the defendant Butler and Staats M. Sackett; The plaintiff was the president, Butler the treasurer and Charles E. Sackett the general manager. Of the capital stock of $100,000 plaintiff held 360 shares, Belt, Butler & Co. 370, the defendant Butler 170, Staats M. Sackett 70, and Thomas J. Hand 30.

The treasurer, Butler, was also a member of the firm of Belt, Butler & Co. On the reorganization of the company its capital stock was entirely invested in its plant, and in contemplation of that fact an agreement was entered into by which the firm of Belt, Butler & Co. undertook to furnish by loan in account current, during two years succeeding the 19th of February, 1894, all the necessary moneys needed for the management of the business of the defendant corporation in an amount not less than $100,000. This agreement also provided that the defendant Butler should have the general supervision of the corporation.

In December, 1894, the plaintiff requested an account from Butler, together with an inventory of the assets of the corporation and the stock on hand. In resjwnse to this request he made a statement but it did not prove satisfactory to the plaintiff.

During the following month the factory of the company burned, together with all of its contents, the insurance policies thereon aggregating $167,000. Prior thereto the defendant Butler negotiated certain notes which he had procured the manager of the factory of the corporation to sign; they were indorsed by the firm of Belt, Butler & Co. and discounted.

He also pledged certain property, consisting of furs, of the value of about $45,000. No authority was given for this action by any vote or special sanction of the board of directors. And it appears from the affidavits of the plaintiff and his co-director, Staats H. Sackett, that they were not informed of such facts until shortly prior to the commencement of this action. Butler also pledged the claims of the corporation to various creditors, under its policies of insurance, which covered its plant and contents which were destroyed by fire, and these facts, it appears, from the affidavits of the plaintiff and Staats M. Sackett, were not made known to them until after the commencement of this action.

Complaint is also made that Butler omitted to sell the furs so pledged when he had opportunities to do so at advantageous prices, although urged so to do by his co-directors, and that they were pledged and alienated as security for loans.

On the motion for the appointment of a receiver, the defendant Butler contended that what he did as treasurer was justified by the agreement entered into between himself, the plaintiff and Belt, Butler & Co. If what has been done is correctly described in the affidavits presented on the part of the plaintiff on this motion, we are not able to agree with the contention that every act is fully justified by its provisions. But, in some important respects, the affidavit's are in conflict, and it is quite apparent from their reading that the result of a trial will be a harmonious and connected account of all the transactions, unaffected by the shading which the interests of the parties seem to have given to the affidavits, on the one or both sides.

Because of that fact, it is not our purpose to give expression to any views which may possibly affect the disposition to be made of the case when it comes on for trial on the merits.

But, if the facts be substantially as state'd by the plaintiff and his co-director, Staats M. Sackett, it is apparent that the jdaintiff will be entitled to some portion of the relief, at least, which he demands in the complaint. And to make the judgment effectual it is apparently desirable, if not absolutely necessary, to preserve the present status, and to that end the granting of the injunction appears to have been a proper exercise of the discretion vested in the Special Term. We are also of the opinion that so much of the order as appoints a temporary receiver should not be interfered with.

The power of the court, to make the appointment cannot be doubted, and under its direction he will doubtless so act as to protect aiid preserve the interests of all the parties pending the final determination of the questions involved by a proper judgment.

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

Present — Yan Brunt, P. J., Follett and Parker, JJ".

Order affirmed, with ten dollars costs and disbursements.


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    Thomas A. Hay, Appellant, v. Pamelia B. Cole, Defendant. Frederick C. Schulze, Respondent.

      Concurrent remedies cannot be prosecuted at the same time for the same relief.

    A person has no right to prosecute concurrent remedies at the same time in different courts for the same relief.
    Appeal by the plaintiff, Thomas A. Hay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1895, vacating and setting aside, as to one Frederick C. Schulze, a judgment entered upon confession of the defendant in favor of the plaintiff.

      James W. MeElhmney, for the appellant.

      Andrew Shilcmd, Jr., for the respondent.
   Per Curiam :

It is disclosed by the record that the respondent brought an action in the Court of Common Pleas against Thomas A. Hay to set aside said judgment on the same ground disclosed in the motion papers, which action was pending when this motion was heard and decided. This fapt is conceded. The respondent had no right to prosecute concurrent remedies at the same time in different courts for the same relief. Had he desired to obtain relief by motion he should have discontinued his action, and the pending action is a defense to this motion.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs and disbursements.

Pi’esent — Follett and Parker, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollai’s costs and disbursements.


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    In the Matter of the Application of Mary McBride, as Administratrix, etc., of Bridget Murray, Deceased, Respondent, for an Order Compelling Henry G. Harris, Appellant, to Pay out Certain Moneys.

      Appeal — papers recited in an order appealed from but not contained, in record will be assumed to sustain the order.

    Where papers which are recited in an order appealed from do not appear in the record it will he assumed that such papers sustain the order, which will in such case he affirmed on appeal.
    Appeal by Henry Gr. Hams from an order of the Supreme Court, made at the New Yoz’k Special Term and entered in the clerk’s office of the county of New York on the 26th day of June, 1895, directing him to deposit a sum of money in court and denying his motion for a reargument.

      Darnel Daly, for the appellant.

      Frederick K. Clark, for the respondent.
   Per Curiam :

Many of the papers on which the original oi’der was made and on which the motion for reaz’gument was founded, which are recited in the order appealed from, not appealing in the record, we must assume that they sustain the order of the Special Term, which is, therefore, affirmed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order affizmed, with ten dollars costs and disbursements. •


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    The New York Central and Hudson River Railroad Company, Appellant, v. Louis F. Haffen, as Commissioner of Street Improvements of the Twenty-third and Twenty-fourth Wards of the City of New York, and Others, Respondents.

      JFiling of a map by municipal authorities showing streets through property does not create a cloud on the title.

    The filing of a map by municipal officers, showing certain streets proposed to be . laid out through and over property not belonging to the municipality, does not justify the owner of the property in applying for an injunction pendente lite to restrain the municipal officers from so doing. '

      Semble, that the filing of such a map would not create such a cloud upon the title to the property as would relieve a purchaser from completing a contract for its. purchase.
    Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of August, 1895, denying its motion to continue an injunction pendente lite granted in the action, and vacating and setting aside said injunction.
    This action was brought by the plaintiff, the alleged lessee or owner of certain premises, to obtain a judgment “that the said defendant Louis F. Haffen, as Commissioner of Street Improvements of the 23d and 21th Wards of the City of New York, be perpetually restrained and enjoined from making, certifying or filing the said surveys, maps, plans and profiles, or any surveys,, maps, plans and profiles, showing said East 153d Street, East 156th Street and East 158th Street as laid out, or to be laid out, through or across the said station grounds (of the plaintiff), or showing the said East 161st Street as widened, or to be widened, on the southerly side thereof by taking forty feet off from the northerly end of the said station grounds, and from locating, laying out, constructing or maintaining the said streets across the said station grounds, and that the said defendants above named, as and together forming the Board of Street Opening and Improvement of the City of New York,” etc.

      Ira A. Place, for the appellant.

      George L. Sterling, for the respondents.
   Per Curiam :

It is the plaintiff’s contention that the maps showing certain .streets through and over property belonging to it should not be filed by the defendants, because,

First. The plaintiff having acquired' and used the lands for depot and station purposes, the city lias no authority, without express .statutory permission, to, take such parcels for any other public use.

Second. The city is prohibited by section 957 of the Consolidation-Act (Chap. 410 of the Laws of 1882) from laying out streets “ through or upon the depot or station grounds of any railroad ■* * * unless with the consent of, the said railroad company.”

The claim of the plaintiff that the parcels of land in controversy constitute a part of the station óf the Grand Central Depot is controverted by the defendants; and, after an examination of the record, the conclusion is reached that this question ought not to be passed upon by the court upon affidavits; that there ought to be, in justice to both parties, a decision of the controverted question of fact based upon testimony resulting from a trial of the issues, and not upon ex joa/rte affidavits, and that such trial should be unembarrassed by any suggestions on this review which should appear to favor the contention of one or the other of the parties.

The affirmance of the order, without other comment, will accomplish this result, and at the same time work no injury to the plaintiff should its contention be sustained by the courts, for the filing of the maps will not harm the plaintiff if it shall finally be determined that the city has no right to open the streets described therein.

It has been held that the filing of such a map does not create such a cloud, upon title as will relieve a purchaser from completing his purchase. (Forster v. Scott, 136 N. Y. 577; Wagner v. Perry, 47 Hun, 516.)

And certainly it cannot harm the plaintiff, as pending the final disposition of the suit it will have no occasion to dispose of the property affected.

An injunction pendente lite should not, therefore, have been granted.

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

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

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    Union Square Bank of the City of New York, Respondent, v. Charles Hellerson, Appellant, Impleaded with Others.

      Bills and notes — accommodation indorser — diversion of the note■ — -an attorney acting for both sides ■ — his knowledge is not imputable to one for whom he was not acting at the timeJie acquired it.

    In an action brought upon a promissory note the defendant Charles Hellerson . interposed a defense to the effect that he indorsed the note for the accommodation of the maker, the defendant Hammersen, and solely for the purpose of having it deposited with Fromme Brothers, law3rers; that it was expressly agreed that the note should never be used as a legal obligation of Hellerson; and that the plaintiff, Fromme Brothers, and one Manning, the plaintiff’s assignor, each had notice of such facts, and that the transfer of the note by Manning to the plaintiff was without valuable consideration and with notice of its diversion from the purpose for which it was indorsed by Hellerson.
    Upon the trial of the action it appeared that Fromme Brothers were prosecuting a claim of the plaintiff against John B. Manning, and that at the same time Hammersen was purchasing a brewery of Manning, in which latter transaction Fromme Brothers were acting as attorneys for Hammersen. The note was transferred before maturity by Hammersen to Manning to pay for the brewery and by Manning to the plaintiff, which thereupon surrendered certain shares of stock which it held as collateral for its claim. Hammersen testified that he told Mr. Fromme that Hellerson was an accommodation indorser, but his testimony did not show that he told Mr. Fromme that the note was not to be used.

      Held, that, as in the transaction relative to the brewery Fromme was not acting for the plaintiff, but for Hammersen, whatever knowledge Fromms acquired in that transaction from Hammersen as to the nature of Hollerson’s indorsement could not be imputed to the plaintiff; and that the plaintiff was entitled to recover.
    Appeal by tlie defendant, Charles Hellerson, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of New York on the 2.9th day of March, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order bearing date the 29th day of March, 1895, entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Eugene K. Saokett, for the appellant.

      A. L. Fromme, for the respondent.
   Yan Brunt, P. J.:

This action is brought by the plaintiff as holder of a note made by the defendant Hammersen indorsed by the defendants Hellerson and Manning and transferred to the plaintiff before maturity and for value. The defendant Hellerson alone answered, and after some denials set up for a separate defense that he indorsed the note at the request of the defendant Hammersen for his accommodation, and solely for the purpose of depositing the same with Eromme Brothers, lawyers, of the city of New York, and that it was expressly agreed that said note should never be used as a legal obligation of the defendant Hellerfeon, and that said Hellerson should in no case be required to pay the same, and that the note was indorsed and delivered to Hammersen without any consideration and upon the conditions above mentioned. The answer further alleged that Eromme Brothers and the defendant Manning and the plaintiff had notice of these facts, and that the transfer of the note by Manning to the plaintiff was. without valuable consideration and with notice of the diversion of the same from the purpose for which it was indorsed by Hellerson.

The evidence in the action showed that Eromme Brothers were prosecuting a claim as attorneys of the plaintiff against John B. Manning ; that Hammersen and Manning had made a trade in respect to a brewery, and Hammersen was in arrears in his payments to Manning, arid that Fromine Brothers were the attorneys for Hammerseii in the transaction. It appears that Hammersen was desirous of getting a deed of the brewery property which' had not been delivered by Manning, and Hammersen testified that one of the Erommes said to him : “ If you have a good friend to indorse one or two notes of about $5,000, I have a claim against Manning from tbe Union Square Bank, and I can please the Union Square Bank and upon the other side please Manning,” and that he went to Hellerson and said: “ My lawyer said if I got the indorsement on this note he is willing to hold this note in his hands so I could get a clear deed and a quick business in dealing with Mr. Manning.” He further testified that Eromme said he would hold the note and that it would not be used upon any payment. He further testified that he did not give this note in part payment of the brewery, but that he did give a $2,000 note (indorsed by the same party), which was paid, and that this note of $2,000 was not any part of the price of the brewery. After the giving of these notes, however, Hammersen received a deed of the brewery. He further testified that at the time he gave the note to Eromme he told all about Hellerson’s indorsement.

In answer to the question: “What did you tell him?” he answered : “ I told him that Mr. Hellerson was a good friend of mine and he indorsed this note, and the way he told me. Q. Did you tell him whether or not Mr. Hellerson had any consideration for indorsing it? A. No. Q. Did you-tell him whether or not it was an accommodation indorsement for you ? A. I told him what I said before; it was only given to be in the hands of Mr. Eromme to make business quicker.' Q. Did you express to Mr. Fromme whether or not Mr. Hellerson was paid anything for indorsing it ? A. No, sir. Q. Did you tell Mr. Eromme in any way that Heller-son only indorsed this note out of friendship for you? A. Yes,sir; I did.”

It further appears in the evidence that both of these notes were brought by Manning to the plaintiff, to which he was indebted, and that the plaintiff, having inquired in regard to the responsibility of Hellerson, took the same in payment of a note of Manning for $5,000,, which they held, and surrendered 500 shares of the Standard Brewing Company of Baltimore which were held as collateral.

Upon this state of facts the court directed a verdict in favor of the plaintiff.

It is urged that Mr. Fromme was the attorney of the bank and that he was told that this note was indorsed by Hellerson for no purpose whatever except as an accommodation to Hammersen. The parties have refrained from explaining what accommodation the indorsement of .,a note, not to be used and upon which no liability was to be incurred, conld be to any party. It is entirely clear from the evidence in this case that Hammersen told nothing to Eromme, except the fact that Hellerson was an accommodation indorser. He did not say to Fromme .that the note was not-to be used and that 'no liability was ever to be incurred upon it. But, assuming that he did, Fromme was certainly, in this transaction, not acting for the bank, but for Hammersen, endeavoring to further Hammersen’s desire to get a deed of the brewery, which he did receive upon the giving of these notes. They were handed over to Manning and by Manning were taken to the bank and given to it in exchange for certain shares of stock pledged by Manning as collateral. It is clear that in this part of the transaction Fromme was acting not as the attorney for the bank but for Hammersen. He was attending to Hammersen’s business, and not that of the hank, and whatever knowledge he had in regard to the origin of the note could not be imputed to the hank because he was not acting for the bank. He did not receive the notes upon the part of the bank, but, on the contrary, received them for the purposes of the transaction with Manning, handed them over to Manning, and Manning took them to the hank which received them without any notice of this remarkable agreement, that these indorsements were made simply for child’s play.

We think that, under these circumstances, there was no foundation for the claim that Fromme’s knowledge, if he had any, as to this remarkable contract in regard to these indorsements, was to be imputed to the bank.

The judgment and order should be affirmed, with costs.

Follett and O’Brien, JJ., concurred.

Judgment and order affirmed, with costs.


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    Max Cohn, as Administrator, etc., of Solomon Cohn, Deceased, Respondent, v. Herman Jarecky, Appellant, Impleaded with Others.

      Misjoinder of causes of action — negligence of druggists and a physician.

    The complaint in an action brought to recover damages against three persons, two of whom were druggists and the other a physician, alleged that the defendant Jarecky was employed as a physician and that the defendants negligently prescribed and compounded and furnished a prescription by mixing with it a, deadly poison, and that it was administered to a child, the plaintiff’s intestate, and caused its death. The complaint did not specifically allege that the druggists had anything to do with the formulation of the prescription, and it was. not certain that the complaint intended to charge that Jarecky participated in the preparation and compounding of the prescription.
    Upon an appeal from an order denying a motion to require the plaintiff to make the complaint more definite and certain,
    Held, that the causes of action against the defendants were not identical, and that they were entitled to have the causes of action separated in such a manner as. would enable them to raise the questions of misjoinder or sufficiency by demurrer.
    Appeal by the defendant, Herman Jarecky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on tbe 16tli day of July, 1895, denying Ms motion to require the plaintiff to make the complaint more definite and certam.

      A. L. Frormne, for the appellant.

      Abraham Levy, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages against two of the defendants as druggists, and one of. the defendants as a physician. Tlie allegation of the complaint is, that the defendant Jarecky was employed as a physician, and that the defendants prescribed, prepared, compounded and furnished a certain medical preparation or medicine to be administered to the deceased, and which was by the direction of the defendants administered to the deceased ; and that the defendants so negligently prescribed, prepared and compounded such medicine as to mix therewith a certain deadly poison unknown to either deceased or his parents, and defendants, knowing that such medicine was to be administered to an infant of tender years,, did carelessly, negligently and wrongfully prepare a certain mixture containing a deadly poison, fatal to human life, and did negligently and wrongfully direct, order and prescribe that the same be administered to said deceased.

It is not alleged in the complaint that the defendant druggists had anything to do with the formulation of the prescription. Their sole dereliction, if any, was in the preparation and composition of the prescription. It is alleged apparently that the defendant physi- . cian participated in the preparation and compounding of the prescription, yet it is not certain that it was the intention of the pleader so to allege. It is clear, however, that no cause of action is alleged against the druggists for negligence in the formulation of the prescription ; and they have no concern with any liability which the defendant physician may be under because of such negligence if it. existed. Consequently, the causes of action against the defendants are not identical, and the defendants are entitled to have them separated in such manner as to enable them to raise the question of misjoinder or sufficiency by demurrer.

. The order should be reversed, with ten dollars costs and disbursements, and the motion granted to make the complaint more definite and certain, with ten dollars costs to the appellant.

O’Brien and Parker, JJ., concurred.

' Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to appellant.