author: O’Brien, J.:

text:
    Lewis S. Samuel, Respondent, v. The Fidelity and Casualty Company of New York, Appellant.

      Judgment — when a hew to a subsequent action.

    There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be, and but one action for a single breach of contract.
    "Whether a judgment in a former action is or is not a bar to a subsequent action, depends upon whether the claims set up in the two actions constitute a single and indivisible demand, or two separate and independent causes of action.
    Appeal by tlie defendant, Tlie Fidelity and Casualty Company of New York, from a judgment of the Supremo Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1893, upon the verdict of a jury for $1,390, directed by the court on a trial at the New York Circuit.

      Thomas 8. Moore, for the appellant.

      Raphael J. Moses, for the respondent.
   O’Brien, J.:

The facts relating to this action are fully set forth in Samuels v. Fidelity & Casualty Co. (49 Hun, 122), which was a case between these same parties wherein the plaintiff recovered a judgment which is now pleaded as a bar in this action. That, as well as this action, was brought to recover damages for breach of a contract resulting from defendant’s wrongful withdrawal from a bond as surety for plaintiff. A recovery in the first action was had, and sustained at both the General Term and the Court of Appeals.

It appears that upon the former trial the plaintiff sought to recover $1,000 which he was contingently liable to pay to a surety substituted for the defendant, unless within the time fixed he had given him indemnity. For the reason that he could give the indemnity, and that tlie court held that the plaintiff could recover only the damages actually sustained, this $1,000 agreed to be paid to the surety was excluded from the consideration of the jury. And it is to recover this $1,000 that this second action is brought, and for which judgment against the defendant has been entered by direction of the court.

The ruling of the learned justice presiding at the first trial is not before us for review, the question here presented being whether, after a recovery in the first action and the payment of the $1,000 by plaintiff, the latter in this action could recover that amount. We think that this question is to be solved by a determination of whether the liability of the defendant .was extinguished by the recovery in the first action, or, differently expressed, whether the plaintiff had more than one cause of action for the damages sustained by reason of defendant’s breach of the contract.

The law as settled is thus expressed in Perry v. Dickerson (85 N. Y. 345): “ There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be, and but one action for a single breach of a contract.” That case also furnishes the test to be applied in determining whether the judgment in the former action is or is not a bar, by the statement that it depends upon the question whether the claims set up in the two actions “ constituted a single and indivisible demand within the authorities, or two separate and independent causes of action.”

If there exists in favor of a party but one cause of action, no matter how many may be the items of damage, but one recovery can be had. And we fail to find any reason upon which the argument can be based, that by reason of defendant’s breach more than a single cause of action accrued to plaintiff. There was but one bond, and a single breach, and by reason thereof the plaintiff was entitled to recover all the damages which he thereby sustained. If, with respect to one of the items of damage, the plaintiff saw fit to have this depend upon a contingency, and thus uncertain until the contingency happened, he was equally at liberty to wait until the amount was fixed and determined before beginning his action, or in the action that he brought he could have produced such evidence as would have permitted the jury to determine the extent of his damage. His failure, however, to do one or the other, or the ruling of the judge upon the former trial, for insufficiency of evidence, or other cause, having-excluded this contingent item, of damage from the jury’s consideration, gave no second cause of action.

We think, in reason and upon the authorities, that the plaintiff had but one cause of action, and that by the former judgment it was extinguished, and that he cannot now recover for additional items of damage sustained by the identical breach, whether he sets up the same items of damage as were set up in the previous action or not, or whether a recovery for such items was or was not then allowed. It is perfectly settled in this court that if a plaintiff bring an action for a part only of an entire, indivisible demand, the demand in that action is a conclusive bar to a subsequent suit for another part of the same demand. (Guernsey v. Carver, 8 Wend. 492. See, also, Secor v. Sturgis, 16 N. Y. 548.)

Our conclusion, therefore, is that the direction in this case was erroneous and that the judgment should be reversed, and as no advantage could be derived from permitting a new trial, and to enable the plaintiff, if he feels aggrieved, to take his appeal, the complaint should be dismissed, with costs.

Yan Brunt, P. J., and Eollett, J., concurred.

Judgment reversed and complaint dismissed, with costs.


source: Caselaw Access Project

author: O'Brien, J.:

license: Public Domain

text:
    Colorado State Bank, Appellant, v. Patrick H. Gallagher, Respondent.

      Jurisdiction of actions beticeen non-residents.

    Section 1780 of the Code of Civil Procedure specifies the only cases in which an action against a foreign corporation may be maintained by a non-resident in the courts of this State.
    Every rule of comity and of natural justice is satisfied by giving redress in our courts to non-resident litigants when the cause of action arose or the subject-matter of the litigation is situated within this State.
    'Where our courts have jui'isdiction in a given case of an action affecting a nonresident, they may, from motives of policy, refuse to exercise it.
    Appeal by the plaintiff, Colorado State Bank, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 5th day of January, 1894, overruling the plaintiff’s demurrer and dismissing the complaint, with notice of an intention to bring up for review on such appeal the order entered in said clerk’s office on the 3d day of January, 1894, overruling the plaintiff’s demurrer and dismissing the complaint.

      George IF. Van Slych, for the appellant.

      L. li. Beehley, for tlie respondent.
   O'Brien, J.:

This action was brought on a promissory note, and by the answer it is alleged that the plaintiff is a foreign corporation, that the defendant is a non-resident, and that the note sued upon was made at Durango in the State of Colorado. The answer then alleges that, by reason of these facts, the court was without jurisdiction of the subject-matter or of the person of the defendant. To this answer the plaintiff demurred on the ground that it was insufficient, and this demurrer ivas overruled, and from the order and interlocutory judgment overruling the demurrer this appeal is taken.

Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation may be maintained by a non-' resident only in the cases therein mentioned. Robinson v. Oceanic Steam Navigation Co. (112 N. Y. 315), which was an action against a foreign corporation, involved the application of section 1780. In the course of tlie opinion in that case it was said: “ Our courts should not be vexed with litigations between non-resident parties over causes of action which arose outside of our territorial limits. Every rule of comity and of natural justice and of convenience is satisfied by giving redress in our courts to non-resident litigants when the cause of action arose or the subject-matter of the litigation is situated within this State.” With respect to the specific questions therein presented, of jurisdiction over a foreign corporation, it ivas decided that it was controlled by section 1780. And the quotation above given from the ojfinion, apart from any provisions of law, is expressive of the policy of our courts in relation to actions in which non-residents are parties and which are not otherwise controlled by the Code.

It will thus be seen that in relying upon the cáse of Robinson v. Oceania Steam Navigation Co., as authority for the proposition that the court ivas without jurisdiction, the learned judge below fell into error. It is true that in cases coming within section 1780 of the Code, tlie court is without jurisdiction, but with respect to actions other than those therein specified affecting non-residents, the court, though having jurisdiction, may, in a given case, from motives of policy, refuse to exercise it. This distinction between the jurisdiction of the court and the discretion vested in it is clearly pointed out in the two cases of Winchester v. Browne (37 N. Y. St. Repr. 542) and Burdick v. Freeman (120 N. Y. 420).

In the case at bar, as the court had jurisdiction if it saw fit to exercise it, the answer was insufficient in law and was obnoxious to demurrer.

Our conclusion, therefore, is that the judgment should he reversed and that the defendant should he permitted to answer over, upon payment of costs.

Yan Brunt, P. L, and Follett, J., concurred.

Judgment reversed and the defendant permitted to answer over, upon payment of costs.


author: O’Brien, J. :

text:
    William J. Quinlan, Jr., Respondent, v. John E. Fairchild, Appellant.

      Promissory note — want of consideration as a defense — ■a motion for the direction of a verdict is a demurrer to the answer.

    In an action on a promissory note the complaint was in the usual form. The answer alleged that a person, dead at the time of the bringing of the action, had held cértain obligations of the defendant which came into the plaintiff’s possession ; that plaintiff made demand on the defendant for the payment of such obligations, and that the defendant, believing the plaintiff to be the administrator or executor of said deceased creditor, gave to him the note in suit. Then followed a denial that the plaintiff is such administrator or executor of such deceased creditor, or that the obligations belonging- to the latter have been transferred to the plaintiff. On motion of the plaintiff the trial court directed a verdict in his favor.

      Held, that such ruling was improper; that such a motion must be deemed a demurrer to the answer, and that all the allegations of the answer must be assumed as proved;
    That in an action between the original parties to a note, where (he defense is that there was no consideration passing between the parties, and no value given for the note, but that it was delivered under a misapprehension and mistake, such facts, if proved, would be a good defense;

      That if tlie answer had alleged that the obligations claimed to have belonged to the deceased creditor had been in fact surrendered, or if there had been an allegation of any consideration moving from the plaintiff to the defendant, the order directing the verdict would have been proper.
    Appeal by the defendant, John E. Fairchild, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of October, 1S98, upon the verdict of a jury for $688.36, after a trial at the New York Circuit.

      John G. Hobinson, for the appellant.

      S. Hanford, for the respondent.
   O’Brien, J. :

The action was on a promissory note given by the defendant to plaintiff. At the opening of the trial, before any evidence was taken, the plaintiff moved for the direction of a verdict in his favor on the pleadings, which motion was granted, and the defendant excepted.

The complaint is the usual one upon a promissory note, setting forth a copy of the note which it is alleged the plaintiff received for value. The parties to the note are the parties to this action, and by the answer the defendant denies that it was given for value, asserting that he delivered it under a mistake and misapprehension arising from the following facts :

That one Washington Quinlan in his lifetime had certain obligations of the defendant which came into plaintiff’s possession ; that the plaintiff made demand on defendant for the payment of such obligations, and that defendant, “ believing the plaintiff to be the administrator or executor of the said Washington Quinlan, in order to liquidate the claim upon him of the estate of said Washington Quinlan ” upon the obligations mentioned, gave to plaintiff the note in suit.

Then follows a denial that the plaintiff is such executor or administrator or personal representative of Washington Quinlan, or that the obligations belonging to the latter had ever been indorsed or transferred to plaintiff, who, it is alleged, was in no way entitled to receive payment on account thereof.

Tlie plaintiff’s motion for a direction was, in effect, a demurrer to tlie answer, and in testing the correctness of the disposition made by the court of such motion, all the facts alleged must be taken as true.

We think that in an action between the original parties to the note, where the defense, as - here, is that there was no consideration passing between the parties, and no value given for the note, but that it was delivered under a misapprehension and mistake, such facts, if proven, would be a good defense. If the answer had alleged that the obligations claimed to have belonged to Washington Quinlan had been surrendered, or if there had been any allegation from which it would appear that there was a consideration moving from the plaintiff to the defendant, it would be otherwise. But, so far as appears, the defendant gave this note to discharge obligations which were due to the estate of Washington Quinlan, and it does not appear that these obligations were • surrendered or delivered to defendant.

Our conclusion is that it was error to direct a verdict on the pleadings, and that the judgment, therefore, should be reversed and a new trial ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., and Follett, J"., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.


author: Van Brunt, P. J.:

text:
    Edward S. Stokes, Respondent, v. William E. D. Stokes, Appellant.

      Interlocutory judgment — no appeal lies from an order directing its entry — what words constitute a libel.

    No appeal lies from an order or decision of tlie court directing' the entry of an interlocutory judgment. '
    An action for libel is maintainable upon proof of the publication of any words which have a tendency to hurt or are calculated to prejudice a man who seeks his livelihood by any trade or business, or of any publication which tends to diminish the respectability of the person to whom, they relate, and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, and no special damages are alleged or proved.

      Appeal by the defendant, "William E. D. Stokes, from an interlocutory judgment of the Supreme Oourt in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the loth day of December, 1893, overruling said defendant’s demurrer to so much of the complaint as is contained in the first cause of action therein, and also from the order or decision of the Supreme Court, entered in said clerk’s office on the .15th day of December, 1893, directing the entry of said interlocutory judgment and on which the same was made and entered.
    This was an action brought for libel against the defendant for maliciously causing to be published in "the New York Herald, the following article:

      “To the Editor of the Herald:

    “In the letter of E. S. Stokes (meaning the plaintiff) which appeared this morning, he (meaning the plaintiff) proposes an arbitration of our (meaning the plaintiff’s and defendant’s) controversy, and offers what is equivalent to a bet of $10,000 on the result. The meaning of this —■ escape from the argument comipg on in court to-day, and to stave off the judgment I will be entitled to enter against him for about $38,000 next week — was revealed by the remark of his counsel in open court, that he (meaning the plaintiff) was short of money and could not pay back what he (meaning the plaintiff) had borrowed from me (meaning the defendant), only if I first gave up not a part but the whole of the collateral he (meaning the plaintiff) had pledged for this and his other guarantees and obligations to me (meaning the defendant).
    “In all his career this 'is the biggest and silliest ‘bluff’ he ever attempted, although he is a prince in that line. What has become of the profits of the Hoffman House for the last two years — more-than $100,000 a year — no one knows, but by this confession (meaning that the said Hoffman House had earned as profits $100,000 for two years, and that the said plaintiff had confessedly appropriated the same to his own use in fraud of the rights of the defendant and others as stockholders in said Hoffman House), public charities and private ones may explain it. When his money is gone he must gain time (meaning that the said plaintiff had squandered the corporation’s money in a disreputable way, and that his object in proposing an arbitration of the matters in dispute between him and the defend.ant was to gain time to raise money and means to replace his misappropriations).
    “ As to his notion of an arbitration, he may as well throw aside this worn-out side play, together with some of • his worn-out sins. After choosing the arbitrament of the court, he now shrinks from it. He prefers a private arbitration because then he is not sworn, nor held to the rules of evidence (meaning that the plaintiff’s motive in proposing an arbitration of the disputes aforesaid was that his testimony, being without the sanction of an oath, he could testify falsely, and without risk of the consequence of perjury). He has admitted openly that he has no defense to my claim for the repayment of the money he borrowed, and as a last desperate resort found this the most plausible plea for delay, but there is nothing to arbitrate. I am reminded of the sentence from I)e Quincy: ‘ If once a man indulges in murder, very soon he becomes to think little ■of robbing; from robbing he comes next to drinking, and from that to ill manners and procrastination. Once enter the downward path, and you know not where you will stop.’ ”

      A. II. Holmes, for the appellant.

      M. II. JRegensburger, for the respondent.
   Van Brunt, P. J.:

So far as the appellant has appealed from the order or decision of •the court directing the entry of an interlocutory judgment, the appeal must be dismissed, with ten dollars costs.

It has been held by the Court of Appeals that such an order is not appealable, which rule has been followed by this court. It is true that different decisions have been made by the Superior Court of this city, but it is manifest from the decision of the Court of Appeals in Cambridge Valley Bank v. Lynch (76 N. Y. 514) that the only appeal is from the judgment. ( Wright v. Chapin, 26 N. Y. Supp. 825.)

The appellant claims that no sufficient cause of action is set out in the complaint upon the ground that the alleged libelous matters must be read without the innuendoes, and that without resort to such innuendoes no cause of action is set- out. In this we are of opinion that he is clearly mistaken. The rule is well settled that defamatory words, in common parlance, are such as impute, some moral delinquency Or some disreputable conduct to the person of whom they are spoken; and that even actions for slander may be founded .upon such imputations; and that such action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. It has been said that the first and larger class of actions are those brought for the vindication of reputation in its strict sense, against damaging and caluminous aspersions; and that the other class for the most part are those brought for the purpose of recovering damages for words which tend to injure one in his trade or occupation. (Moore v. Francis, 121 N. Y. 199.) And it has been further held that whatever words have a tendency to hurt, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable. And the rule seems to be well stated by the learned judge in the court below that publications which tend to diminish the respectability of the person to whom they relate, and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, are libelous and actionable,, although no special damages are alleged or proved.

In the case at bar the words of the publication in question clearly tend to affect the credit and standing of the plaintiff, and impute not only disreputable conduct but moral delinquency to him.

"We think, therefore, that a cause of action is set out in the complaint, and that the judgment appealed from should be affirmed,, with costs, with leave to the defendant to withdraw his demurrer and to answer over on payment of costs of appeal and of the court, below.

O’Brien and Follett, JJ._, concurred.

Judgment affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer over on payment of costs of: appeal and of the court below.


text:
    Anderson Price, Respondent, v. Mary Yost Wood, Appellant.

      A mortgage collateral to an agreement is controlled, by the terms thereof.

    In an action brought to foreclose a mortgage it was shown that the defendant being embarrassed for money, employed the plaintiff, an attorney and counselor at law, as her attorney, under an agreement which was entered into between them under date of October 22, 1892, by which, after reciting the execution by the defendant of her bond and mortgage, and the conveyance of some property as further collateral security, it was declared that the agreement ivas to declare the purpose for which the mortgage was executed, namely, that a certain corporation had become liable for the payment of certain debts mentioned in the schedule attached to the agreement for some of which the defendant had become liable, and that it was the intention of the defendant to secure the services of the plaintiff in the payment, reduction, settlement and adjustment of the debts. It further provided that the proper charges for the services of the plaintiff, in addition to all payments to be made by him in settlement of debts, etc., should be allowed as a part of the sum of $11,000 for which the mortgage was given; that all payments, expenses and services should draw interest from the time when the same were made, rendered and incurred.
    The agreement then, among other things, provided for the keeping of an account by the plaintiff of all payments, services and expenses incurred or rendered, which account was to be rendered to the defendant upon demand.
    Simultaneously with the execution of the agreement the defendant executed the bond and mortgage, which the action was brought to foreclose, to secure the payment of the sum of $11,000 on October 22, 1898, with interest payable semiannually, the mortgage containing a provision that if interest remained unpaid for thirty days, the whole principal sum should become dire and payable.
    No consideration was given for the mortgage, and it was given simply to secure advances and services to be made or rendered under the agreement. Before the execution of the mortgage the defendant objected to the interest clause on the ground that it did not comply with the agreement, and the plaintiff'assured the "defendant that the interest would accrue and be computed according to the agreement and that the interest clause of the mortgage was merely formal, and relying upon these representations the defendant executed the bond and mortgage.
    Certain services were thereafter rendered and disbursements were made by the plaintiff, from whom the defendant from time to time demanded an itemized account of advances and services, which he failed to give her until May 2,1893. The defendant did not tender any interest on the 22d day of April, 1893, and on the 23d day of May, 1893, this action to foreclose the mortgage was commenced. The plaintiff claimed the sum of $8,750 as due thereon, with interest from October 22, 1892. The referee in the action found in favor of the plaintiff for the sum of $7,575.30, as money advanced, with interest, and $1,500, as the value of his services, and judgment of foreclosure and sale was directed accordingly.

      Held, that the defendant could not he in default for non-payment of interest when the amount due had not been liquidated;
    That it was not the intention of the parties that any liability should arise from the interest clause until the amount payable under the agreement had been liquidated;
    That the rights of the parties rested upon the agreement, and the. bond and mortgage were intended as security for what should be due under the agreement;
    That it was not the intention of the parties that the interest clause should ever become operative; that there being no means of determining what amormt of interest should at any time be due and payable, the parties intended to be governed bjr the agreement, and that the bond and mortgage should only be enforced after it had become due, and in case other means were not provided.
    Appeal by tlie defendant, Mary Yost Wood, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 31st day of October, 1893, upon the report of a referee.
    The agreement referred to in the opinion in this action contained, in addition to the provisions set ont in the opinion, a provision to the effect that all “payments, expenses and services shall draw interest from the date when the same shall have heen rendered, made and incurred.”

      E. E. Baldwin, for the apjiellant.

      Anderson Brice, respondent, in person.
   Van Brunt, P. J.:

In October, 1892, the defendant, being embarrassed for money to meet certain obligations, employed the plaintiff, who was an attorney and counselor, as her attorney and agent, and an agreement was entered into between them hearing date October 22, 1892, which, after reciting the execution by the defendant of her bond and mortgage in the sum of $11,000, and the conveyances as further collateral security of certain lots in One Hundred and Twenty-ninth street, provided that the agreement was to declare the'intention and purpose for which said mortgage was executed, to wit: That the Cranston West Point Hotel Company had become liable for the payment of certain debts and incumbrances mentioned in a schedule attached to said agreement, and for some of which defendant liad become liable, etc., and that, it was the desire and intention of the defendant to secure the services of the plaintiff in the payment, reduction, settlement and adjustment of said debts, in which the plaintiff was to use his best judgment, and the defendant to and by further indorsements, etc. Dy the said agreement the defendant then agreed that the proper charges for the services of the plaintiff, in addition to all payments made by him in settlement, etc., of debts, should be allowed as part of the sum of $11,000, for which the said mortgage was given, and also all other expenses.

The agreement then provides that the plaintiff shall keep an account of all said services, payments and expenses, and which said account shall be rendered to the defendant on demand, and all payments and services and expenses shall draw interest from the date rendered, made and incurred, and shall constitute and be a part of the sum of $11,000, for the securing of which the said mortgage was given. The agreement then provides that plaintiff may refuse to make any further advances in case the condition of affairs of the company renders it imprudent, notice of which was to be given to defendant in writing, and that in case the defendant desires to secure other sums than the amount represented in said mortgage, other and additional security should be furnished by defendant. Annexed to said agreement was a schedule of liabilities. The defendant, pursuant to the provisions of said agreement, and simultaneously with its execution, executed to the plaintiff the bond and mortgage mentioned in the complaint, to secure $11,000 with semi-annual interest, bearing date October 22, 1892, and payable October 22, 1893, with an interest clause providing that incase semi-annual interest remains unpaid for thirty days, the whole principal sum should become due and payable. This bond and mortgage was executed. to secure future advances and services, no part of the consideration being-advanced by the plaintiff at or before the execution thereof. Before the execution of the bond and mortgage the defendant objected to the interest clause therein, because it did not comply with the agreement, and thereupon the plaintiff assured the defendant that interest would accrue and would be computed according to the agreement, and that the interest clause was merely formal, and that the terms of the agreement should control, and relying upon such representations the defendant executed said bond and mortgage. The plaintiff subsequently made advances and performed services under the agreement, and also in respect to matters outside of the agreement. Upon four separate occasions between February 1 and April 20, 1893, tlie defendant demanded of plaintiff an itemized account of Ms advances made and services rendered; and in the latter part of Marcli, 1893, tlie defendant requested the plaintiff to furnish her with an itemized account of his services, disbursements and interest; and again on May third, up to which time the plaintiff was acting as agent and attorney of the defendant, and the referee has failed to find that any such account was rendered, and the evidence shows that it was not. The plaintiff furnished statements of amounts paid, not simply payments made under the agreement, but including others, and no account whatever as to services rendered until May 2, 1893, when he rendered a bill for nearly $10,000. The defendant not having tendered any interest on the 22d day of April, 1893, on May twenty-third this action of foreclosure was commenced, the plaintiff claiming the sum of $8,150, with interest from October 22, 1892, the date of the mortgage to be due thereon.

The defendant answered, and a reference being had the referee reported in favor of the plaintiff for $7,575.30 advances, with interest to be added, and $1,500 as value of services, and gave judgment of foreclosure and sale, and from such judgment this appeal is taken.

It is to be borne in mind in the determination of the rights of the parties to this litigation, that the relation of attorney and client existed between the plaintiff and defendant at the time of the execution of these papers, and that, therefore, the transactions of the plaintiff with the defendant are to be scrutinized. It appears that the bond and mortgage in suit and the agreement were executed at one and the same time, and they must, therefore, be read together, and unless the plaintiff has performed all his obligations under the agreement, he cannot enforce the obligation of the bond and mortgage. It further appears that the defendant, before executing the bond and mortgage, objected to this interest clause and only executed it relying upon the representations of the plaintiff, her counsel, that the clause was merely formal and that the terms of the agreement must control. Under these circumstances how is it possible for the plaintiff to establish a forfeiture for the failure to comply with this merely formal provision ? There was nothing in the agreement about any forfeiture. There was nothing in the agreement by which the amount secured by the bond and mortgage could be augmented by interest, and it clearly shows that the $11,000 was a lump sum in which was to be included the interest upon advances, services, etc. There is nothing in the agreement to which the interest clause in. the bond and mortgage could possibly attach until the amounts .secured were liquidated. Furthermore, the plaintiff in the agreement, upon demand, agreed to render to the defendant an account of services, payments and expenses, and it appears that although frequently demanded, no such account was ever pretended to be rendered until May 2, 1893 ; and even then the account contained items not chargeable to the bond and mortgage, and a charge of nearly $10,000 for services, which services, as chargeable against this mortgage, the referee found to be worth $1,500 ; and this was also after the plaintiff claims that the defendant was in default for nonpayment of interest. It is difficult to see how the defendant could be in default for non-payment of interest when the amount due liad not been liquidated, and when a charge for services is made against her many times greater than their value.

The fact is that at the time of the execution of this bond and mortgage neither party supposed that any liability would or could arise from that interest clause until the amounts under the agreement had been liquidated, the rights of the parties rested upon the agreement, and that the bond and mortgage were held as security for what should be due under the agreement. There is no provision for any payment whatever by the agreement, and it probably was never expected that it would be necessary for the plaintiff to resort to the bond and mortgage for payment of the amounts due under the agreement. They were taken simply to insure the plaintiff from final loss in case other sources of payment should fail. It is undoubtedly true that the plaintiff advanced moneys far beyond what he was called upon to do by the agreement, but those friendly acts on his part cannot enlarge the plain intent and meaning of the .agreement and bond and mortgage now under consideration.

We are of opinion that it was not the intent of the parties that the interest clause in the bond and mortgage should ever become operative; that, there being no means of determining what amount of interest should be at any time due and payable, the parties intended to be governed by the agreement, and that the bond and mortgage should only bé enforced after its due date, and in case other means -of payment were not provided.

The judgment appealed from must, therefore, be reversed and a new trial had before a referee to be appointed in the order to be entered hereon, with costs to the appellants to abide the event.

O’BbieN and Follett, JJ., concurred

Judgment reversed and a new tidal had before a referee to be appointed in the order to be entered hereon, with costs to the appellants to abide the event.


text:
    In the Matter of the Application of The Holland Trust Company, as Guardian, etc., Respondent, to Compel Johk Aitken, an Attorney, Appellant, to Pay Certain Moneys to the Said Company as Guardian.

      •Oharges of ad/ministration are debts of the administrator to be allowed Mm on Ms accounting.

    Tiie charges of an administrator of an estate are primarily the personal debts of the administrator, and, if incurred properly for the benefit of the trust fund, they will be allowed to the administrator upon the settlement of his accounts.
    Appeal by John Aitken from an order made at the New York Special Term, and entered in the office of the clerk of the county ■of New York on the '29th day of November, 1893, directing John Aitken to pay to the Holland Trust Company as guardian the sum ■of $150 and costs.
    The petition in this matter alleged, among other things:
    II. That on the 30th day of March, 1892, by an order of the Surrogate’s Court of the county of New York, bearing date on said day, the said company (the petitioner) was, pursuant to the decree hereinafter mentioned, duly appointed the guardian of the estate of Lisette Georgi, an infant, and still continues to be such guardian.
    III. That heretofore, on or about the 30th day of March, 1892, in u proceeding in the said Surrogate’s Court entitled “ In the Matter of the Judicial Settlement of the Accounts of Otto II. Georgi, as Guardian of the estate of Lisette Georgi, an infant under the age of fourteen years, on application for tlie revocation of the letters of guardianship and appointment of a guardian of the estate of said infant to succeed the said Otto II. Georgi,” etc., a decree was made by the said Surrogate’s Court bearing date on said day, and filed and entered in the office of the surrogate of the said county on the said day, wherein and whereby the account of the said Otto II. Georgi, as guardian as aforesaid, was judicially settled and allowed as filed and adjusted, and the letters of guardianship of the person and estate of the said Lisette Georgi, infant, dated March 13, 1889, issued out of the said Surrogate’s Court to the said Otto II. Georgi were revoked, and the said Holland Trust Company was appointed guardian of the estate of the said Lisette Georgi to succeed the said Otto II. Georgi in said guardianship. That the said decree contains the following, among other provisions:
    “ Ordered, adjudged and decreed as follows, viz.:
    “ That the said Otto H. Georgi pay the residue of the said baiancc so remaining in his hands, being the sum of five hundred and eighty-seven dollars and eighteen cents, into the court within ten days from date of entry of this decree by depositing the same in the custody of the Holland Trust Company of the city of New York.”
    IY. That of the said sum of $587.18 there has been paid to the company, as guardian as aforesaid, the sum of $418.23, and no more.
    Y. That John Aitken, Esq., of the said city of New York, who, during the pendency of the said proceeding was, and now is,, an attorney and counselor of the Supreme Court of the State of New York, having his office in the city of New York, was retained by and appeared for the said Otto H. Georgi, as his attorney and counsel therein.
    YI. That the said John Aitken, while acting as such attorney, received $150 belonging to the estate of the said infant, which he claims .he is entitled to retain for services alleged by him to have been performed for the said infant or for her estate; that said last-mentioned sum constituted part of the said sum of $587.18 which the said Otto H. Georgi was so as aforesaid ordered to pay to the' said Holland Trust Company as guardian of the said Lisette Georgi.

      Anson B. Stewart, for the appellant.

      Edward Bussell, for the respondent.
   Van Brunt, P. J.:

It is difficult to imagine upon what theory this motion is founded. There is no claim hut that the attorney rendered the services charged for, and is entitled to be paid therefor; but it is said his client has charged the same to his account as guardian when he should have paid for them himself. Even if this were so, it is difficult to see how the court can summarily take this money out of the attorney’s pocket. All charges of administration are primarily the pei’sonal debts of the administrator, but if incurred properly for the benefit of the trust fund they will be allowed to the administrator upon the settlement of his accounts. So in the case at bar the guardian was liable for the services of his attorney. If they were improperly charged to his ward, the only way to settle this matter was to have the accounts of the guardian passed and to have him charged with whatever was due.

The order appealed from should be reversed, with ten dollars costs and disbursements to be paid by the petitioner, and the motion denied.

O’Brien and Eollett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to be paid by the petitioner, and the motion denied.


author: Per Curiam :

text:
    Theodore B. Osborne and Francis M. Underhill, as Executors, etc., of Daniel Underhill, Respondents, v. James W. Ketcham, Impleaded with John G. Norris, Appellant, et al.

      Mortgage foreclosure — tender of costs and interest insufficient.

    Where in an action to foreclose a mortgage upon premises, the title to which has passed to a person other than the mortgagor, the plaintiffs have not been guilty of fraud or oppression in seeking to enforce the mortgage, their right to enforce (he covenant providing that they may elect to consider the whole amount of the mortgage due, after a default in the payment of interest for upwards of thirty days, is absolute, and, having made the election, and begun an action for the foreclosure oí the mortgage, such action cannot be defeated by a tender of the costs and interest due.

      Appeal by the defendant, John Gr. Norris, from a judgment of foreclosure and sale of the Supreme Court in favor of the plaintiffs, entered in the-office of the clerk of the county of New York on the 4th day of May, 1893, directing that the mortgaged premises described in the complaint in this action, or so much thereof as may be sufficient to raise the amount due to the plaintiffs for principal, interest and costs, be sold at public auction in the city of New York under the direction of a referee appointed for that purpose.

      A. , . Sire, for the appellant.

      Edward, M. Scudder, for the respondents.
   Per Curiam :

On the 6th day of August, 1891, James ~W. Ketcham mortgaged the premises No. 587 Seventh avenue to the plaintiffs’ testator, to secure the payment on April 15, 1896, of $28,000, with semi-annual interest at five per cent per annum payable on the fifteenth days of October and April in every year. The mortgage was given to secure the payment of part of the purchase price of the mortgaged premises, which were on the day of the date of the mortgage conveyed by the mortgagee to the mortgagor.

The mortgage contains the following covenants:

'■'•First. That he, the said James W. Ketcham, the party of the first part, will pay the indebtedness as hereinbefore provided. •

“ And if default be made in the payment of any part thereof, the party of the second part shall have power to sell the premises herein described, according to law.

Third. And it is hereby expressly agreed that the whole qf said principal sum shall become due at the option of the said party of the second part after default in the payment of interest for thirty days, or after default in the payment of any tax or assessment for sixty days after notice and demand.”

By the statement which precedes the case it appears tiiat John GL Norris, the appellant, was the owner of the premises when this action was begun in June, 1892, and that he was the only party who appeared and answered. The sole defense interposed by the answer is that the mortgage ought not to be foreclosed for the principal sum, the defendant having tendered the amount due for interest.

The interest which fell due on the loth of October, 1891, was paid, but that which fell due on the 15th of April, 1892, has not been paid.

On April 21, 1892, the plaintiffs’ attorney wrote the attorney for the owner of the fee that the interest was past due, and that a cheek therefor might be sent to the writer, or to Mr. Osborne, one of the plaintiffs, as per a mein, left with you.” On the 11th of May, 1892, four days before the lapse of the thirty days mentioned in the mortgage, the plaintiffs, through their attorney, notified the attorney of the appellant that unless the interest due on the mortgage was paid May fourteenth, by twelve o’clock noon, the holders of the mortgage would elect that the principal sum be then due, and that they would immediately thereafter foreclose unless the whole amount was paid. The interest not being paid, this action was begun on the 27th of June, 1892, for the foreclosure of the mortgage.

The court found that the appellant did not before the commencement of this action tender to the plaintiffs the interest due on the mortgage, and that they were at all times ready and willing to receive the interest due April 15, 1892, during the next succeeding thirty days, but that no offer was made to pay -it. The court also found that no offer was made until January 24, 1893, after this action was at issue, when the appellant tendered the sum due for interest and costs, and asked leave to have it paid into court, which was denied.

Under such circumstances the appellant is in no position to ask to be relieved from the express terms of the contract by which he was bound. The plaintiffs have not been guilty of fraud or oppression in seeking to enforce this mortgage. They gave the-owner of the fee ample notice before the thirty days had run that-unless the interest was paid they should elect to regard the whole amount secured by the mortgage as due and payable and should commence foreclosure at once. No attention was paid to this, and after the lapse of six weeks this action was commenced, and not until the January following did the appellant offer to pay the amount which he concedes to be due.

The right of the plaintiffs to enforce the covenant under such circumstances has been settled by a long line of adjudications in this State. (Hale v. Gouverneur, 4 Edw. Ch. 207 ; Ferris v. Ferris, 28 Barb. 29; Dwight v. Webster, 32 id. 47; Bennett v. Stevenson, 53 N. Y. 508; Noyes v. Anderson, 124 id. 180.)

Tlie judgment should be affirmed, with costs.

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

■Judgment affirmed, with costs.


text:
    In the Matter of the Appraisal under the Transfer Tax Act of the Property of Alexander Milne, Deceased.

      Inheritance torn — construction of the statutes relating thereto — penalty for non-payment of the tax.

    The act to tax gifts, legacies and collateral inheritances, known as chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, provides that when taxes are not paid within eighteen months after the death of the ■decedent, interest shall be charged at the rate of ten per cent per annum; provided, however, that where, by reason of necessary litigation, or other unavoidable cause of delay, an estate cannot be settled at the end of such eighteen months, the penalty of ten per cent shall not be charged, but, in such case, only six per cent per annum shall be charged upon the tax from the expiration of said eighteen months until the cause of delay is removed.
    A testator died April 10, 1891, and the tax upon his estate was not paid within eighteen months. In May, 1893, chapter 399 of the Laws of 1893 took effect, which repealed the Laws of 1885 and 1887, but contained a saving clause with respect to rights accrued prior to May 1, 1893.
    By this act of 1893 it was provided that interest on overdue taxes, where the penalty was remitted, should be at the rate of six per cent from the time of the ■decedent’s death, instead of, as provided in the act of 1887, from the expiration of eighteen months after such death.

      Held, that persons subject to the tax were entitled to any immunity or privileges in respect to the time of payment wrhich were provided by the law as it stood when the right to the tax accrued;
    That unless the intention is clear a statute would not be given retroactive effect.
    Appeal by the petitioner, John F. Alexander, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of the Surrogate’s Court of New York county on the l‘5th day of January, 1894, adjudging that interest upon the tax imposed herein shall be charged at the rate of six per centum per annum on the amount of the tax so fixed from April 10, 1891, tlie date of the death of said testator, to October 24, 1893, the date •of payment of said tax, and also from so much of said order as denies petitioner's motion for an order charging interest at the rate •of six per centum per annum upon the amount of the tax so fixed as aforesaid from October 10,1892, to October 24, 1893.

      William H. Arnoux, for the appellant.

      Edgar J. Levey, for the respondent.
   Per Curiam :

The testator died April 10, 1891, at Stamford, Connecticut, leaving property in the State of New York subject to the tax imposed by chapter 483, Laws of 1885, as amended by chapter 713, Laws •of 1887, entitled “ An act to tax gifts, legacies and collateral inheritances in certain cases.” By this act it was provided (§§ 4, 5) that when taxes are not paid within eighteen months after the death •of a decedent, interest shall be charged at tire rate of ten per cent per annum; provided, however, that where, by reason of necessary litigation or other unavoidable cause of delay, an estate cannot be settled at the end of such eighteen months, this penalty of ten peícent shall not be charged, and in such cases only six per cent per annum shall be charged upon the said tax from the expiration of •said eighteen months until the cause of such delay is removed.

On May 1, 1892 ■ — ■ one year and twenty days after testator’s •death- — chapter 399 of the Laws of 1892 took effect. This act repealed the said Laws of 1885 and 1887, but contained a saving clause with respect to rights- accruing prior to May 1,1892. By this act of 1892, it was provided that interest on overdue taxes, where the penalty was remitted, should be at the rate of six per cent from the time of the decedent’s death, instead of, as provided in the act •of 1887, from the expiration of eighteen months after such death.

The single question presented here, therefore, is whether the interest upon the amount of tax is to run from the date of the death of the testator, as provided by the act of 1892, or from and after eighteen months from such death, as provided by the act of 1887.

There can be no doubt that the tax accrued at the date of the death of the decedent, and that the persons subject to the tax were entitled to any immunity or privileges in respect to the time of payment which were provided by the law as it stood when the right to the tax accrued. It has been many times held that unless the intention is clear a statute shall not be given a retroactive effect. It is not claimed that there is any expression of legislative intent to give any such effect to the law of 1892, but the saving clause to which attention has been called, in terms provides that it shall not affect or impair any act done or right accruing under the prior acts relating to the taxation of legacies and successions.

Our conclusion is that the question in respect to penalties and interest was governed by the law of 1887, and not by the law of 1892.

"With regard to remitting the penalty and substituting in lieu thereof interest, a discretion is given to the surrogate whether it shall be one or the other, and in the case at bar it may be that he remitted the penalty because he supposed he had the right to charge interest upon the tax from the date of decedent’s death, which, as we have seen, we do not think he could do.

The order, therefore, should be reversed, and the matter remitted to the surrogate for such disposition as he may think proper, pursuant to the act of 1887, with ten dollars costs and disbursements to-appellant.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ\

Order reversed, and the matter remitted to the surrogate for such disposition as he may think proper, pursuant to the act of 1887, with ten dollars costs and disbursements to appellant.


text:
    The People of the State of New York, Respondent, v. Julia E. Barringer, Appellant.

      Criminal prosecution — written instrument —parol evidence in expla/nation of.

    In criminal prosecutions, the rule which prevents proof of conversations and agreements made prior to the execution of a written instrument to explain the object of the instrument, does not apply.
    The defendant in such a case cannot be precluded from showing that felonious, intent did not exist, simply by the production of a paper wherein she has written or signed something inconsistent with her claim of the non-existence of the felonious intent. She is not estopped by such writing.
    The jury have n right to consider the writing in determining the question of credibility of the witnesses, and there is no ground in such a case for the application of the rule that parol evidence cannot be offered to rebut the claim of felonious intent.
    Appeal by the defendant, Julia E. Barringer, from a judgment of the Court of Sessions of the city and county of New York, rendered against said defendant on the 14th day of August, 1893, convicting her of grand larceny in the first degree, and also from the order denying defendant’s motion for a new trial.

      W. T. Jerome, for the appellant.

      J. D. Lindsay, for the respondent.
   Van Brunt, P. J.:

The defendant was charged in the indictment with grand larceny, there being two counts. The first charges her with the felonious, appropriation of the sum of $2,000, the property of one Zacharias Y. Spinosa, in her possession, custody and control as bailee; and the second charges her with feloniously taking, stealing and carrying away the same sum belonging to said Spinosa. Evidence was given upon the part of the People and upon the part of the defendant, and the jury having rendered a verdict of guilty of grand larceny in the first degree, from the judgment thereupon entered this appeal is taken.

Upon the part of the People the complainant was examined as a witness. He testified that he was a teacher of languages, living at 75 East One Hundredth street in the city of New York in May,. 1891, and that at that time he saw an advertisement in a newspaper relative to some business opportunity. The complainant answered the advertisement in writing, and subsequently called upon the defendant, at No. 10 East Fourteenth street, and met there the defendant and her husband; a conversation was had to the effect that she wanted somebody to help her in her business as a bookkeeper; that she had been imposed upon by several other people and needed somebody in whom she could trust, and that she required at the same time a deposit of $2,000 or $3,000 as security. He told her he would consider it and went home. The second time the defendant sent for complainant and he went back three or four days afterwards. At this time she said that if he would remain there she would give him half the profits of the business carried on in the house, and that the money complainant advanced would be returned at the end of twelve months in a lump. The complainant replied that he had determined not to give the $8,000 as security, but he would not mind making an experiment for twelve months and would give her a security of $2,000. This was accepted and an agreement was drawn up by Mr. Smith, a brother of the defendant, who was present at the trial.

The agreement was as follows:

“Articles of Agreement betuoeen Julia JE. Barrvnger, of the City and Cownty of New Yorlc, of the first part, o/nd Zachm'ias Y. Spinosa, of the City and County of New Yorlc, of the second pa/rt.

The party of the first part, in consideration oi the sum of $2,000 to her paid in hand as hereinafter provided, covenants and agrees to take the party of the second part into her service at No. 10 East 14th for the term of one year, beginning from this date, and it is left to the pleasure of Mr. Spinosa to continue rendering his personal services, and it is further agreed that at the expiration of nine months from this day either party of this contract shall give notice to the other if the cancellation of this agreement is desired, and the party of the second part shall be entitled as pay for his said services one-lialf of the net proceeds arising from the commission business carried on at No. 10 East 14th street, city of New York, under the name of the party of the first part. The said amount of $2,000 to be returned to the second party in a lump at the expiration of the •contract

“ The party of the second part, in consideration of the interest given to him as herein provided, covenants and agrees to pay to the party of the first part $500.00 (five hundred dollars), on the signing and execution of this instrument and $1,500 (fifteen hundred dollars) more in three different payments at $500 each (until the sum of $2,000 is paid) at such times as may be required by the party of the first part during the term of the agreement as above ■specified.

“ In witness whereof, the parties hereunto have set their hands and seals the eighth day of June in the year one thousand eight hundred and ninety-one.

“JULIA E. BARRINGER,

“ ZACHARIAS Y. SPINOSA.”

This was signed and executed by the parties in the presence of Smith, who had drawn the same up. Pursuant to this agreement the-complainant paid the defendant $500, and four or five days after-wards made the next payment of $500, and three or four days after .that a payment of $1,000. After the agreement the complainant went to defendant’s in accordance therewith, to see what services he could render. The defendant asked him to copy certain chattel mortgages, which she drew with his name inserted as the mortgagee. The complainant said he did not like to have his name in those papers, and she- said he need not fear, that his name would not be made public, that she could not insert her own name because she was the broker, and if she inserted her own name it would be usury, but that she as a broker could charge any brokerage she liked. He made out seven or eight of these mortgages, which the defendant kept. The complainant did not keep any of them in his possession. This was all the bookkeeping he did. At the end of three weeks the complainant was introduced to a gentleman by the name of Armelia Castilo by the defendant, she saying “ Here is a friend of mine, Mr. Castilo ; he is a partner of mine.” The defendant told her afterwards that he would be entitled to half the profits she was making with him as a special partner; she said, “ No, I would not be entitled, because he would be a different partner from me.”

“By the Court: Q. He was a different partner? A. Yes, sir* I said no ; that I was nothing but her bookkeeper there; that I was entitled to half the proceeds of the business carried on in the house, according to the agreement, and that I could not be a partner, because I was nothing but a bookkeeper*, and she had my money as security. She said then that the contract was wrong, and that it would be altered. I said if the contract was wrong, and had to be altered, that the money had to be returned to me after that, and we could see what new arrangement we could make. She said no, she wouldn’t give me the money back, but she would make a verbal contract, allowing me $40 a week for the use of the $2,000. She asked me if I wouldn’t be contented with that. I said: £No, that would be usury; ’ I would stick to the contract to give me half the profits of the business carried on in the house.” After that the ■complainant went to see his lawyer, and subsequently went to see the defendant, and tried to get as much money as he could out of her by way of profits. After certain negotiations he got fifteen dollars a week on account of profits for two or three months from the latter part of August until the end of November, 1891. The complainant further testified to giving the notice under the contract, and that the $2,000 was never returned. On cross-examination it appeared that the complainant had brought an action in the Supreme Court to recover the amount claimed to be due. In his complaint he swore that he had given the defendant $2,000 and received back $642, leaving a balance of $1,358. It further .appeared that in June he had received certain other sums of money, •and the complainant further testified that the $2,000 was to be given ■as security. It further appeared that in addition to the mortgages testified to as being taken in the name of Spinosa, he received a number of notes which were held by him, and which were taken in the business carried on by the .defendant.

Upon the part of the defense the husband was examined as a witness. He testified as to the negotiations between the complainant .and the defendant, and to certain conversations in regard to the form of the agreement, and that the complainant was to advance the money to put into the business, and that he stated how he wanted the money invested — that the mortgages were to bear six per cent interest and to be taken in his name, and that he was to have half of the brokerage. The defendant was also examined on her own behalf, to the effect that he had $2,000 to invest, and that the money was to be invested on chattel mortgages on furniture, and the notes .and mortgages were to bear six per cent interest, and he was to have that, and that she was to charge thirty per cent commission, ■.the half of which was to go to the complainant.

The defendant also offered as a witness William J. Smith, who 'drew the agreement, and he testified that at the time, or just before it was signed, he heard a conversation between the defendant and ■the complainant, and when asked to state what-it was at the time or ■'immediately before, the court asked whether it was for the purpose ■of modifying or changing anything. The defendant’s counsel stated that he proposed showing what the conversation was, and the court replied that he would not allow him to introduce any evidence to contradict the paper. The defendant’s counsel stated that he proposed to show that at the time, or immediately before it was signed, that defendant objected to the word “service” in the agreement, and that the complainant insisted upon its going in there, and the court refused to allow the evidence. The defendant’s counsel insisted upon the right to show what was the understanding and agreement, and what was said in connection with the contract and what led up to it. The court refused to allow the evidence. The defendant’s counsel then asked: “ Q. At the time this contract was signed was there anything suggested by Mr. Spinosa about avoiding the usury law? A. Yes, sir. Q. Now, what did he say in regard to avoiding the usury law ? A. He said that he put that word c service ’ there to evade the usury law, to get around it, something like that; that is what he said.

“ The Court.— And then it was signed with that understanding ? ' A. Yes, sir.

“ The Court. — And, therefore, the defendant in this case entered into an agreement to violate the statute by evading the usury law, so that one was about as bad as the other.”

The defendant’s counsel then asked : “ Did you hear any conversation immediately before the signing of this, or some time before between these two, as to what was to be done with this money ? ” This was excluded upon the ground that all conversations and all agreements are supposed in law to be merged in the written agreement, and an exception was taken.

It is urged upon the part of the defendant that this was error. The complainant had been allowed to testify as to the conversation which led up to the agreement, and the purpose for which the contract was entered into. It is true that no objection was taken to this. The defendant and her husband had also been examined on this point, and had testified. It further appeared from the testimony that Smith was present at the time of the execution of this agreement, and at the time it was drawn up. And notwithstanding this condition of the testimony the court refused to allow the witness Smith to testify upon the same subjects in respect to which the other witnesses had been examined. And the question submitted, to the jury was, whether this money was given to the defendant by the complainant as security, and the jury were instructed that if the defendant received it upon that understanding, and then with intent to deprive the complainant of its possession she used it for any other purpose than as security for his good conduct, and appropriated it to her own use, she was liable to be convicted, under the indictment, of grand larceny in the first degree. The jury were further charged that in determining to whom they would give credence they should take into consideration the written agreement,, and although any subsequent agreement in reference to the transaction might he made orally or by parol, no prior conversations or transactions were permitted to contradict or impeach the written contract. The court was further asked to charge the jury that if' they found upon the evidence that at the time the complainant, delivered the money to the defendant it was agreed that it should be invested in chattel mortgages and the profits divided, and it was so invested, then the defendant should be acquitted. The court replied : I have charged that substantially, and I refuse to charge other than I have charged.” The question thus submitted to the jury was as to the circumstances under which this money was paid, and, as already stated, evidence had been given both on the part, of the People and the defendant as to the circumstances which led up to this agreement. The agreement itself shows nothing in regard to the purposes for which the money was to be given. It is true that it says that the complainant was to be entitled to half the profits for his services, and that the amount of $2,000 was to be returned in a lump at the expiration of the contract. But the. agreement is not of that definite and explicit character as to deprive the defendant (even as between the parties) of the right to give testimony as to the purposes for which the money was to be used. And it is clear that in the case of a criminal prosecution the rule applied by the learned recorder cannot prevail. The question is as. to the felonious intent of this defendant; and she cannot be precluded from showing that such felonious intent did not exist simply by the production of a paper wherein she has written or signed something inconsistent with her claim of the non-existence of the felonious intent. She is not estopped by any such wilting. The jury have a right to consider the writing in determining the question as to the credibility of the witnesses, and the weight to be given to the testimony, but there is no ground in a case of that description for the application of the rule that parol evidence cannot be offered to rebut the claim of felonious intent.

The defendant, therefore, had a right to the testimony of Smith for the purpose of showing that it was the understanding of' the parties at the time this money was delivered that it was to be invested in chattel mortgages and not to be held merely as security.

Eor this error, we think, the judgment should be reversed and a new trial ordered.

O’Brien and Follett, JJ., concurred.

Judgment reversed and new trial ordered.


text:
    Charles G. Doremus, Plaintiff, v. Arieanna M. Doremus, Individually and as Executrix, etc., of Peter C. Doremus, Deceased, and Others, Defendants.

      Reference to take evidence and report — exceptions of no mail — rule 30 — objections to the confirmation of the report.

    Exceptions to a report, made pursuant to a reference to take evidence and report it to the court with the opinion of the referee thereon, are unavailing. The exceptions can be taken only to the determination of some court or officer having power to decide the question, the decision of which is challenged.
    Under a reference to take evidence it is the duty of the court to determine the facts and the law, and exceptions must be filed to its decision in order to bring anything up for review.
    The thirtieth rule of the court as to the necessity of filing exceptions to a referee’s report does not apply to a reference of this nature.
    Where a reference of this nature is made, the confirming of the report at Special Term may be resisted upon any grounds appearing in the report without exceptions being filed; when the questions of law and fact have been determined at Special Term exceptions must be filed to such determinations if they are sought to be reviewed.
    Appeal by George Bliss and William T. Schley, claimants, from an order made at the New York Special Term and entered in the office o± the clerk oí the county oí New York on the 7th day of December, 1893, resettling the order entered in this action on tlie 22d day of November, 1893, confirming the report of a referee, and directing distribution oi the moneys deposited with the chamberlain of the city of New York to the use of the piaintiff.

      jBUss c& Schley, claimants, in person appellants.

      Theodore II. SilJcman, for the respondents.
   Per Curiam :

The reference in this case was not to hear and determine, but to take the evidence and report it to the court with the opinion of the referee thereon. Exceptions to such a report are unavailing, as exceptions can be taken only to the determination of some court or officer having power to decide the question the decision of which is challenged. Under this reference it was the duty of the court to determine the facts and the law, and if the * determination was unsatisfactory to either party, exceptions should have been filed to its decision. None having been filed and served, the record presents no question for review.

It will be seen from this conclusion that we do not agree with the respondent in his contention that it was necessary to file exceptions to the report of the referee, and that the failure to so file them would after eight days result in the confirmation of the report. As correctly stated in The Matter of the Atty.-Gen. v. Continental Life Ins. Co. (64 How. Pr. 93): “ The 30th rule of the court as to the necessity of filing exceptions to a referee’s report has no application to a reference of this nature and character. It is only to a reference which empowers a referee to decide questions between parties that the rule is applicable, and it cannot foreclose the court from passing upon matters which such court only has power to determine.”

The motion to confirm the report could be resisted at Special Term upon any grounds appearing in the record, without exceptions having been filed to the report; but after the questions of fact and' of law had been finally determined by the Special Term, exceptions should have been filed in order to successfully challenge the decision.

Our conclusion is that the order should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Eollictt, Jd.

Order affirjned, with ten dollars costs and disbursements.


text:
    Daniel E. Donovan, Plaintiff, v. Margaret Clark, Defendant.

      Undertaking on appeal — when joint and several — plea in abatement.

    Wher-e in an undertaking- given on appeal to secure the payment of costs and damages it is provided that the principals “ do jointly and severally, pursuant to the statute in such case made and provided, undertake,” and the clause relating to the payment of the judgment provides “and do also undertake that, if the judgment so appealed from, or any part thereof, is affirmed,” etc., the liability under both clauses is joint and several.
    Form of plea in abatement.
    Motion by the defendant, Margaret Clark, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after the verdict of a jury for $124,848.66, réndered by direction of the court in favor of the plaintiff, at the New York Circuit, on the 8th day of December, 1893.

      John I). Her nan, for the plaintiff.

      L. Laflin Kellogg, for the defendant.
   Per Curiam :

This action was brought to recover upon an undertaking given on appeal pursuant to sections 1326, 132Y and 1334 of the Code of Civil Procedure. It is conceded that the undertaking to secure the costs was joint and several, but the question is whether that part of the undertaking given to secure the payment of the judgment was joint or joint and several.

In the part of the undertaking which relates to the payment of costs and damages it is provided that the principals “ do jointly and severally, pursuant to the statute in such case made and provided, undertake,” etc. And the clause relating to the payment of the judgment provides: “ And do also undertake that, if the judgment so appealed from, or any part thereof, is affirmed,” etc.

We think that this undertaking is joint and several in both of its parts, and the words “ and do also undertake” undoubtedly refer to the character of the obligation entered into by the sureties. This construction is enforced, not only from the position of the words quoted in the undertaking itself, but also by the evident intent to give an undertaking pursuant to the statute, which required that such undertaking should be both joint and several, and the presumption must be indulged in that the parties intended to give such an undertaking as the statute requires.

Again, the plea in abatement is not sufficient in law. It is not averred that the co-obligor is living and within the jurisdiction of the court.

Exceptions overruled and judgment ordered on verdict, with costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.


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    Robert J. Wright, Appellant, v. The Haskin Wood Vulcanizing Company, Respondent.

      Appeal — when exceptions only a/re reviewed.

    Where there is no appeal taken from the order denying a motion for a new trial, an appeal from the judgment brings up for review only the exceptions taken on the trial.
    Appeal by the plaintiff, Robert J. Wright, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New -York on the 14th day of April, 1893, upon the verdict of a jury after a trial at the New York Circuit.

      Douglas A. Levien, for the apuellant.

      Charles J. Hardy, for the respondent.
   Per Curiam :

There is no appeal from the order denying the motion for a new trial, and under the settled practice this brings up for review only exceptions.

The exceptions relating to rulings upon evidence, which are three in number, upon examination, we do not regard as tenable or as in any way affecting the verdict.

The only exception, other than those upon questions of evidence, is to the denial of the motion for a new trial, which brings up no question before us for review.

The judgment appealed from, therefore, should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    Louise Meise, Respondent, v. Henry Newman, Appellant, Impleaded with John H. Doscher.

      Promissory note — notice of protest to an indorser — affidavit denying notice.

    It is absolutely necessary that a demand of payment of a promissory note should be made at the proper time and place, and notice thereof be given, in order to hold an indorser thereon.
    Section 923 of the Code of Civil Procedure makes the certificate of a notary public of the presentment by him for acceptance or payment, and of the protest for non-acceptance or non-payment, and of the service of notice thereof on the parties to a note or bill prima facie evidence of those facts, unless the indorser, with his answer to an action on the note, or within ten days thereafter, serves an original affidavit to the effect that he has not received notice of the nonacceptance or non-payment of the note. Such certificate is, however, only presumptive evidence and may be rebutted.
    Appeal by the defendant, Henry Newman, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of October, 1893, upon the verdict of a jury for $1,267.42, after a trial at tlie New York Circuit.

      J. II. Hull, for the appellant.

      J. J. Flammer, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover upon a promissory note, alleged to have been made by a firm doing business in the city of Brooklyn under the name of Doscher & Co., and indorsed by the defendant and appellant Newman. The complaint alleged presentation of tlie note when due, protest and notice to the appellant. The answer set up a general denial. Upon the trial the note was proved, and evidence was given as to protest and the circumstances of the indorsement, and the question as to whether the appellant had indorsed the note to give credit to the same was submitted to the jury, who found a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

Upon the termination of the plaintiff’s case the defendant’s counsel moved to dismiss on the ground, among others, that there was no proof of presentment. This was the only question reserved for consideration upon the argument of this appeal. We think this objection is fatal to the judgment.

It is undoubtedly true that a bill of exchange or promissory note, made and payable in this State, is not required to lie protested in •.order to hold the indorser. All that is necessary is that a demand should be made, and the indorser notified of the failure of the maker to pay. But it is absolutely necessary that such demand should be made and notice given in order that the indorser may be held.

It is also true that by section 923 of the Code it is provided that unless a defendant alleged to have been au indorser upon a promissory note, with his answer, or within ten days after the service of the same, serves an original affidavit to the effect that he has not. received notice of non-acceptance or of non-payment of the bill or note, the certificate of a notary public of the State, under his hand and seal of office, of the presentment by him for acceptance or payment, or of the protest for non-acceptance or non-payment, or of the service of notice thereof on a party to the note or bill, specifying the mode of giving the notice, and the reputed place of residence of the party to whom it was given, and the post office nearest thereto, is presumptive evidence of the facts certified. But such certificate is only presumptive evidence, and although the certificate of the notary was offered in evidence in regard to this note that it was duly presented for payment, which was duly demanded and refused, yet, upon an examination of the notary, it appeared that such presentment had not been made by him, and that he had no> personal knowledge of its having been presented. He was told that it had been presented, and then protested the note and mailed notices. This was clearly insufficient. It showed that he had no knowledge of thé verity of his certificate, and the presumption of its accuracy was rebutted.

Yfe think this difficulty is fatal to the judgment, and that it must be reversed and a new trial granted, with costs to appellant to abide the event.

Follett and O’Brien, JJ., concurred.

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


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    Charles F. Smith, Respondent, v. Claude L. Gouraud, Appellant.

      Default — order directing cm attm’ney to receive a complaint.

    Where the time to serve a complaint had expired, the plaintiff moved the court for an order to compel the defendant to accept the complaint, and for such other relief as the court might grant.

      Held, that while the motion should have been one to open the default, yet, as sufficient facts appeared to warrant the opening of the default, an order directing the defendant to accept the complaint should be sustained.
    Appeal by the defendant, Claude L. Gouraud, from an order made at the New Tork Special Term and entered in the office of the clerk of the county of New Tork on the 5th day of October, 1898, compelling the defendant’s attorney to accept service of the plaintiff’s complaint.

      Stejphen O. Baldwin, for the appellant.

      Edwin B. Lemitt, for the respondent.
   Per Curiam :

The complaint was served after the time for such service had expired, and the plaintiff, therefore, as a matter of right, could not have insisted upon the defendant accepting the same, and the form of his motion, instead of being to compel defendant to accept, should have been to open the default. ' In his notice of motion, however, he asked for such other relief as the court might grant, and sufficient facts appearing to warrant the opening of the default and the granting of the motion for leave to serve the complaint, it is to be assumed that this was the relief which the court intended to grant.

¥e think, therefore, that while the form of the notice of motion and the order entered upon granting the same may not be strictly correct, because requiring the defendant to accept the complaint, instead of opening the default and granting permission to serve the complaint, that the proper disposition to be made of the appeal would be to affirm the order, without costs.

Present — ■ Yan Brunt, P. J., O’Brien and Follett, JJ.

Order affirmed, without costs.


author: Follett, J.:

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    In the Matter of the Application of Elizabeth C. McKibbin, Respondent, v. William H. Nafis, an Attorney, etc., Appellant.

      Attorney’s compensation— lien therefor.

    An attorney lias a lien upon a bond and mortgage placed in liis hands by his client, and upon any sums collected upon them, for his compensation for services theretofore rendered.
    Appeal by William II. Nafis from an order of the Supreme Court, made at the New York Special Term, entered in the office of the clerk of the county of New York on the 12th day of January, 1894, directing the defendant to pay to Elizabeth O. McKibbin the sum of $1,500 with interest, and further to deliver to her a bond and mortgage, and all other papers and documents held by said Nafis as her attorney belonging to her.

      George Pwkiam Smith, for the appellant.

      Charles Blandy, for the respondent.
   Follett, J.:

The appellant is an attorney and counselor of this court, who was employed by the petitioner to collect upwards of $90,000 due from the estate of her deceased father, which sum was collected through the aid and assistance of tlie attorney. But a question has arisen as to the value of those services. At some time — the date notappearing — a bond and mortgage for $6,000, owned by the respondent, was placed in the hands of the appellant, with power to collect the installments falling due thereon. On the 24th day of July, 1893, the appellant collected $1,500 on this bond and mortgage, which he placed to the credit of the respondent; and subsequently he brought an action against the respondent to recover the amount claimed to be due him for services rendered after crediting this sum. In this action an issue has been joined. Afterwards the petitioner applied for an order requiring the appellant to pay over the $1,500 so collected and credited, and to deliver to her the bond and mortgage, which was resisted by the attorney on the ground that he had a lien on the sum and on the securities for the services he had rendered.

It is well settled that an attorney has a lien on the securities of his client which are in his hands for services which he has rendered. This lien is a legal one. (Matter of H, 87 N. Y. 525; Maxwell v. Cottle, 72 Hun, 529.)

The attorney having a legal lien upon this mortgage and upon this sum, it is difficult to see by what right or upon what principle the court could declare that he must surrender such lien. If it had been shown that the attorney’s claim was wholly groundless, then undoubtedly the court, upon a summary application, might require the securities to be surrendered; but where, as in this case, it is conceded that the attorney has performed some services, and the value of those services are in dispute, we think that the court should not have required him to relinquish his lien.

The order should be reversed, but without costs to either party.

Yan Brunt, P. J., and O’Brien, J., concurred.

Order reversed, without costs to either party.


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    The People of the State of New York ex rel. Frederick S. Heiser v. Edward Gilon et al.

      Assessment, of damages for the change in the grade of a street — oath of assessors, unnecessary — objection, when too late — adcice of corporation counsel to the board — construction of cluvpter 729 of 1872.
    A person who has submitted himself to the jurisdiction of the board of assessors of New York city in proceedings taken to assess the damages and improvements to property caused by the grading of a street under the provisions of chapter 729 of the Laws of 1872, cannot, upon the review of the proceedings of such board, for the first time, raise the objection that the members of such board were not sufficiently sworn.
    The board of assessors of the city of New York, in proceedings taken to regulate the grading and improvement of Eighth avenue, under chapter 729 of the Laws of 1872, are not required to take a separate oath of office therein.
    It is a familiar rule in the construction of statutes that the principle which is to control is the intention of the Legislature in passing the same, which is to be ascertained from the cause or necessity of the statute, as well as other circumstances.
    ■When the corporation counsel of a city is the legal adviser of its board of assessors and the city is not a party to proceedings taken by such board to assess the damages caused by the grading of a street therein, it is not improper for the corporation counsel to advise the board as to the manner in which it should execute its duties. «
    Chapter 729 of the Laws of 1872 is a special act, unusual in its provisions, and should not be enlarged against the evident intent of the Legislature. It provides for the reimbursement of the owners of buildings, and not the owners of land, for damages sustained by reason of the change in grade of a certain street from its existing, and not from its natural, grade.
    By the use of the word ‘‘statement,” in addition to the word “award,” in chapter 729 of the Laws of 1872, there was np intention shown to enlarge the duties of the assessors in determining the amount of an award or assessment by compelling them to file a bill of particulars, and a statement of the gross amount of damage sustained by certain property is sufficient thereunder.
    Certiorari issued out of the Supreme Court and attested the 21st day of July, 1892, directed to Edward Gilon, Patrick M. Ilaverty, Charles E. Wendt and Edward Cahill, constituting the board of assessors of the city of New York, and to Theodore W. Myers, comptroller and head of the finance department of the city of New York, commanding them to certify their proceedings in relation to the assessment of the damages resulting to certain premises by the change of the grade of Eighth avenue in the'city of New York.

      H. M. Whitehead, for the relator.

      J. M. Wa^d, for the respondents.
   Van Brunt, P. J.:

The relator is the executor of Christina E. Smith who, from the-year 1857 until the time of her death in 1874, was the owner of certain premises bounded by the westerly side of Eighth avenue, the northerly side, of Ninety-first street and the southerly side of Ninety-second street in the city of New York. This property consisted of a plot of twenty-one lots upon which a dwelling house and out-buildings stood. There were from time to time, up to 1875,. changes of the grade of Eighth avenue authorized, the last of which was by chapter 593 of the Laws of 1870, the grade under the provisions of this act being considerably lowered.

In May, 1872, an act was passed entitled: “ An act in relation to the improvement of the Eighth avenue in the city of New York,” being chapter 729 of the Laws of 1872. That act is as follows:

“ Section 1. The board of assessors of the' city of New York are hereby authorized and directed to assess upon the property intended to be benefited by the regulating, grading and improving the Eighth avenue between Eifty-ninth street and One Hundred and Twenty-second street, the amount of damage or injury which each owner of a building or buildings erected on land fronting on said avenue or street, has or will sustain or suffer by reason of such changes of grades and plan of improvement of said avenue heretofore authorized or directed to be made by the Legislature, or any officer or board in the city of New York, and shall make and file-in the finance department of said city a just and equitable statement and award of the amount of such damage, loss or injury to-the owner or owners of such building or buildings on lands fronting on such street or avenue, and opposite thereto, and affected by such change of grade, and the amount of such award shall be. included in the expense of regulating, grading and improving said avenue, and with such expense for regulating, grading and improving said avenue shall be assessed, as provided in and by the one hundred and seventy-fifth section of the act of April ninth, one thousand eight hundred and thirteen, entitled ‘An act to-reduce the several laws relating to the city of New York into one act.’

“§ 2. The comptroller of the city of New York is hereby authorized and directed to issue assessment bonds of said city, to pay the amount of such loss or damage so assessed by said board of assessors, together with such an amount as may be needfesary to pay the expenses or costs that have been, or may hereafter be, necessary for the regulating, grading and improving said avenue'.”

In June, 1891, the present claim of the plaintiff was presented to the board of assessors, and certain proceedings were thereupon had; and on the 6th of May, 1892, the assessors-filed in the office of the comptroller the assessment made by them of the amount of damage or injury sustained by the relator, resulting from the change of grade or plan of improvement of said avenue theretofore authorized .and directed to be made by the Legislature, or any officer or board in the city of New York. The relator feeling- himself aggrieved by said assessment has brought this certiorari to review the proceedings of the board of assessors.

Various objections are made to the regularity of the proceedings of the board of assessors, and also to the neglect of said board to take into consideration proofs offered by the relator upon the question of the damage sustained by him.

It is first urged that the return fails to show that the board was sworn to act as a judicial body, and that, therefore, it had no jurisdiction, and that, as the duties and powers under this act were not those jDrescribed by the Consolidation Act of 1882 (Chap. 410), their general oath of office was not sufficient to comply with the law. But no such objection was taken to the proceedings before the board of assessors; and the relator, after having submitted himself to the jurisdiction of the board, cannot now be heard to raise the objection that they were not sufficiently sworn. But we are of opinion that this board, acting as a board of assessors, were not required to take a separate oath of office in this particular proceeding.

It is further urged that the board have not complied with the law, and filed the statement therein required. It is admitted that -the paper filed is good as an award. But it is claimed that it is in no sense a statement. It is a familiar rule in the construction of •statutes (and one which is invoked by the relator upon this appeal) that the principle which is to control is the intention of the Legislature in passing the same, which is to be ascertained from the cause or necessity of the statute as well as other circumstances.

“ A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of the statute which are to be regarded in its interpretation, and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provision of the statute.” (People ex rel. Wood v. Lacombe, 99 N. Y. 49.)

Now, upon an examination of the statute in question, it will be seen that by the use of the word statement ” in addition to the word “award” there was no intention to enlarge the ordinary duties of the assessors in determining the amount of an award or assessment by compelling them to file a bill of particulars. The term used is “a just and equitable statement and award of the amount of such damage, loss or injury,” etc. It is evident that it was not the intention that particulars should be given, but a statement of the gross amount of the damage, and that such amount was to be awarded. Therefore, the award which wras filed by the board of assessors with the comptroller seems to liaAre been a compliance Avith the statute.

It is further urged that it Avas error upon the part of the assessors to call upon the corporation counsel for advice in respect to the manner in which they should conduct their duties, and because me of his assistants appeared before them and advised them. And it is urged that this was improper because the city was one of the parties to the proceeding. The corporation counsel is the legal adviser of the board of assessors ; and the city Avas not a party to this proceeding. It is true that the comptroller was authorized to issue assessment bonds for the amount of the award. But the amount was to be assessed upon the adjacent property, and it was supposed that the money would be realized again by the city, so that in reality the city was only advancing the amount of the award against assessments to be subsequently collected which had been levied upon the adjacent property, in order that the same might be reimbursed. "We do not think that there was any ground to complain of the action of the board in applying to the corporation counsel for his assistance in tlie conduct of the special duty which was imposed upon them by this act of the Legislature.

It is further urged that the board did not estimate and award all the damages to which the relator was entitled under the proof. And here, we think, the relator is entirely mistaken in reference to the scope of the act under which this assessment and award were being made. As already intimated, in the construction of the act the intention of'tlie Legislature must govern. The act in question was a special one, not in the ordinary course of legislation; and seems to have been passed in order that the relator might be reimbursed for some special damage which he had suffered by reason of the change of grade which had occurred in front of the property owned by him. It is claimed upon the part of the relator that the -expenses . in relation to the lands owned by him, caused by the change of grade, were to be included in-the assessment. "We do not think that this is the intention of the act. It is not the landowner who is to be reimbursed, but the owner of buildings erected-upon the land; and it was the intention of the Legislature to reimburse for the damage to the buildings, not the damage to the land. It was certainly not their intention that, because the owner of a block of land had a house of small value erected thereon, he should be reimbursed for all that it cost him to bring his lots down to the grade, whereas, upon the next block, because there was no building thereon, the expenses might be much greater and yet no reimbursement could be made. The Legislature never intended any such inequality in reference to compensation. It is apparent that all that they did intend was that the damage to the building should be provided for. This is the provision of the act. It was as tlie owner of the building that he was to be compensated, and notas the owner of the land. And this seems to have been the error in the extravagant claim which the relator presented to the board of assessors — one •of the items of which is the expense of taking the dirt away from his lots, and the next the building of a retaining wall to keep it there.

It is further urged upon the part of the relator that all the damages which might be sustained by reason of the change of the natural grade were to be included. We do not think that the act bears this construction, but rather that the damages caused by the changes of the grade and plan of improvement, i. e., change from the first plan of improvement, were to be considered, and that the word “ change ” qualified both grade and plan of improvement, and that, therefore, it did not mean that all the changes from the original grade should be compensated for. This act, as already stated, is a special one, unusual in its provisions, and should not be enlarged against the evident intent of the Legislature.

These suggestions seem to us to dispose of • most of the objections to the amount of the award. It may be that we are wrong in this construction, and that the relator has been inadequately compensated for the result of the change of grade. But we cannot see how any other construction can be placed upon the act without giving preferences, which it is never to be assumed the Legislature intended.

We think that the proceedings should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Proceedings affirmed, with eosts.