text:
    In the Matter of the Judicial Settlement of the Accounts of Louis Cohen and Another, as Administrators, etc., of Margaret Mayer, Deceased. Louis Cohen and Another, as Administrators, etc., Appellants; Charles Mayer, an Infant, by Special Guardian, Respondent.

      Affidavit upon a motion for anew triulon the ground of newly-discovered evidence — by whom it must be made — what must be shown therein— contract between client and attorney.

    A motion for a new trial because of newly-discovered evidence must be founded on the affidavits of the newly-discovered witnesses, unless it be shown that their affidavits cannot be obtained, and such affidavits must disclose the facts to which the newly-discovered witnesses will testify, it not being sufficient to state that they would “ corroborate and substantiate the testimony ” given by a certain witness.
    A contract made by an attorney with an heir at law or next of kin of a decedent, by which he is to receive for his services a large-share of his clients interest in the estate, is always regarded with, suspicion, and if the attorney seeks to enforce it the burden is upon him to show that the contract is fair and just and that his client acted understandingly and with full knowledge of all the facts connected with the transaction.
    Appeal by Louis Cohen and another, as administrators, etc., of Margaret Mayer, deceased, and by Louis Cohen, individually, from an order of the Surrogate’s Court of the county of New York,, entered in the New York County Surrogate’s Court on the 16th day of June, 1894, denying the appellants’ motion for a new trial of the claim of the appellant Louis Cohen against the estate of Margaret Mayer, deceased.
    February 8," 1892, Bridget Neary died intestate, and June 16,. 1892, letters of administration were issued to Margaret Mayer and Louis Cohen on her estate, which amounted to $4,663 45. On the 16th of February, 1893, Louis Cohen, as surviving administrator,, had a judicial settlement of his accounts in the Surrogate’s Court,. and he was allowed for commissions................... $141 59 For moneys disbursed in settling the estate............. 393 49
    Total....................................... $534 99
    There was left for final distribution among the next of kin $3,840.45, one-third of which — $1,280.15 — was distributed to Louis Cohen and Charles Mayer, as administrators of Margaret. Mayer, $1,280.15 to Ellen Convannon, and $1,280.15 to Mary Ryan,, the next -of kin of the intestate.
    July 8, 1892, Margaret Mayer died intestate, leaving Charles Mayer, her husband, and Charles Mayer, Jr., their infant son, her only heirs and next of kin. September 30,1892, letters of administration were granted to Charles Mayer, Sr., and Louis Cohen on her estate, which amounted to $1,636.35. October 12, 1893, the-administrators of Margaret Mayer filed a petition for the judicial settlement of their accounts, and on the same day a citation was. issued, returnable October 31, 1893, which was duly served October-21, 1893, on Charles Mayer, Jr., an infant, of the age of eleven years. November 3, 1893, Luis James Phelps was duly appointed by the Surrogate’s Court the special guardian of said infant in said proceedings. On the final accounting Cohen presented the following account against the estate of Margaret Mayer:

      “New York, Februa/ry 11, 1893.
    “ Administrators of Estate of Margaret Mayer, Cec’d,
    “To Louis Cohen, Counsellor at Law, 176 Broadway:
    “To professional services rendered In the Matter of

      Bridget Ffea/ry, Deceased, as per Special Contract. ., $1,200 00 Or.

    “By costs, disbursements, commissions and disbursements in estate of Bridget Neary.................. 531 99
    “ Balance.................................. $665 01
    “ I hereby approve of the foregoing bill.
    “N. Y, Feb. 11th, 1893. CHARLES MAYER”
    This claim was duly verified and was admitted to be just by Charles Mayer, the co-administrator, but the validity was contested by the' special guardian, and, after a trial before the surrogate, it was disallowed. To support the claim Cohen called Charles Mayer, who testified:
    “ By Mr. Cohen.— I knew Margaret Mayer; she was related to me; she was my wife ; she died July 8th, 1892 ; she left no will; I knew Bridget Neary in her lifetime; she was related to my wife, her cousin; Bridget Neary died February 8th, 1892; she left no last will and testament; I recollect of my wife’s calling at Mr. Cohen’s residence and consulting with him concerning the affairs of the estate of Bridget Neary; it was on a Sunday, immediately after the death of Mrs. Neary and before she was buried; I recollect what that conversation was; it was an agreement of $1,200 that Mr. Cohen was to receive out of the estate of Bridget Neary for services he -was to render for that estate; there was something said in reference to the disbursements connected with the estate; Mr. Cohen was to attend to all claims; Mr. Cohen was to receive $1,200 for his sendees connected with that estate. My Avife did not pay the $1,200 during her lifetime. Q. Co you know what amount of money, if any, Avas paid on account of the agreement? A. None at all; there was something paid in the shape of costs and disbursements, 'over $500.”
    No other evidence was given tending to support the claim, and the Surrogate’s Court refused to find, as a matter of fact, that the claim was established. Afterwards the claimant moved for a rehearing to enable him to produce additional evidence in support of the claim. In the affidavit upon which the motion was founded he testified : “ I called the matter to the attention of Mr. Sigmund Feuchtwanger, an attorney and counsellor at law, and, in the course of said conversation had concerning the disposition made by the surrogate concerning said claim, he called my attention to the fact of his hav-.. ing heard the conversation between the above-named intestate and myself concerning the special contract which is the subject-matter of my said claim, and that he is ready and willing to corroborate and substantiate the' testimony given by the husband of the above-named intestate, which he has read, and the reason that his testimony has not been heretofore offered was, first, upon the ground heretofore stated, that I was misled by the form of the objection-' raised by the special guardian; and, second, that I did not recollect the occurrence of his being present at the time that the original contract entered into between the above-named intestate and myself was consummated.”
    The Surrogate’s Court refused to grant a rehearing, and from the order denying the application Cohen, individually, and the administrators appeal.

      Louis Cohen, claimant and attorney in person.

      Ltois James PheVps, special guardian for Charles Mayer, an infant, respondent.
   Follett, J.:

The order denying the motion for a rehearing is sustainable on four grounds: (1) It has long been the rule in this State that a motion for a new trial, because of newly-discovered evidence, must be founded on the affidavits of the newly-discovered witnesses, unless it is shown that they cannot be obtained. (Adams v. Bush, 1 Abb. Ct. App. Dec. 7; S. C., 2 Abb. Pr. [N. S.] 104; Denn v. Morrell, 1 Hall, 382; Roberts v. The Johnstown Bank, 38 N. Y. St. Repr. 563; S. C., 14 N. Y. Supp. 432; Matter of Collins, 6 Dem. 286 ; Gould v. Moore, 8 J. & S. 387; Garvey v. U. S. Horse & Cattle Show, 3 Misc. Rep. 352 ; Denny v. Blumenthal, 8 id. 544; Baylies’ N. T. & App. 528 ; 2 Rumsey’s Pr. 414.) The affidavit of Mr. Feuchtwanger was not produced, nor -was its absence explained. (2) Apart from this, had Feuchtwanger’s affidavit been presented stating that he would “corroborate and substantiate the testimony” given by Charles Mayer, it would have been insufficient. Such an affidavit must disclose the facts the witness will testify to. (3) A contract made by an attorney with an heir or next of kin, by which he is to receive for his services a large share of his client’s interest in an estate, is always regarded with suspicion, and, if the attorney seeks to enforce it, the burden is on him to show that the contract was fair and just, and that his client acted understandingly and with full knowledge of all the facts connected with the transaction. (Ford v. Harrington, 16 N. Y. 285; Evans v. Ellis, 5 Den. 640 ; Haight v. Moore, 5 J. & S. 161; Mason v. Ring, 3 Abb. Ct. App. Dec. 210.) It appears from the record that the share of Mrs. Mayer in the estate of Miss Neary exceeded but by a few dollars the amount which the claimant alleges she contracted to pay for his services in securing that interest. The claimant presented no evidence before the surrogate that his services in the settlement in the Neary estate were worth the sum of $1,200, or any sum beyond the allowance made to him by the surrogate on the settlement of that estate. (1) The evidence of Charles Mayer is insufficient to create a personal liability against Mrs. Mayer. Her agreement was that Mr. Cohen was to receive $1,200 out of the estate of Bridget Neary for the services he was to render for that estate.

The order should be affirmed, with costs against the appellants personally.

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

Order affirmed, with costs against the appellants personally.


source: Caselaw Access Project

author: Fitzgerald, S.:

license: Public Domain

text:
    In the Matter of the Probate of the Last Will and Testament of Julia O’Dea, Deceased. Julia Condon and Another, Appellants, v. Timothy F. Neville and Others, Respondents.

      Instrument executed by a feeble person as his will■ — the execution and preparation thereof will be carefully scrutinized —- eironeous belief of a testator.

    The courts will scrutinize carefully the circumstances attending the preparation and execution of an instrument offered for probate as the last will and testament of a decedent who was feeble and advanced in years at the time of the execution thereof.
    An erroneous belief suggested as a reason for the disinheritance of an heir, in order to affect the validity of the will of a decedent, must be shown to be an insane delusion.
    Appeal by the contestants, Julia Condon and another, from a decree of the Surrogate’s Court of the county of New York, entered in the New York County Surrogate’s Court on the 17th day of May, 1894, admitting to probate a certain instrument as the last will and testament of Julia O’Dea, deceased.

      Henry B. B. Stapler, for the appellants.

      Francis L. Wellman, for the respondents.
    Decree affirmed, with costs, on the opinion of the surrogate.
    Present — Yan Brunt, P. J., Pollett and Parker, JJ.
   The opinion of the surrogate was as follows: ■

Fitzgerald, S.:

The paper offered for prohate is dated May 23, 1893 ; the issues raised will be decided mainly upon the testimony of the witnesses, who, to my mind, are unbiased, and who have no motive, either pecuniary or by reason of ties of kinship, to warp or influence their evidence. The first subject for consideration is the question of the execution of the paper. Mr. Neville and his son, who are the subscribing witnesses to the paper of May twenty-third, testify to its subscription, publication and attestation. They also express the opinion that testatrix was of sound mind at the time the will was executed. The paper bearing date September 3,1891, and prepared by the same draughtsman, if I recall the testimony correctly, is in some degree different from the one offered for probate. It was admitted in evidence as an expression of testatrix’s then state of mind as to her purpose with regard to her property, and in considering the case I shall refer to that document as well as the one under consideration. By the first paper, that of September third, she bequeathed a legacy to Father Flood of $300. She also made provision for her nieces, one of whom was Bridget Cronin, now deceased. Of her, as appears by the testimony, she was very fond. After the death of Bridget, Mrs. O’Dea went to the office of Mr. Neville, and asked that her will be reformed, withdrawing the bequest made to the nieces. In my judgment her feeling for her niece Bridget Cronin was the motive for including the others in that will. I reach this conclusion on the testimony of witnesses whom I regard as unbiased. Bridget having died, she executed the will of May 23, 1893, and in it increased the legacy to Father Flood from $300, to $1,000.

It is a sound rule that in the case of a feeble person, far advanced in years as was Mrs. O’Dea — I think she was nearly eighty-five — the court should scrutinize carefully the circumstances attending the preparation and the execution of the paper which is offered for pro bate. As I have suggested, the subscribing witnesses are emphatic in stating their belief that she had ample mental capacity.

In this connection I may refer to the testimony of Mr. McQueeney, called by the contestants, who, from what I could see of his demeanor on the stand, was an indifferent party, unprejudiced and unbiased. Either under the direct or the cross-examination, it was drawn from him that he made visits to Mrs. O’Dea, whom he had known since 1848. On visits made to her three months previous to June, 1893, which would be about the commencement of April, he had a conversation with her relating to matters of family history. He stated that he took no special interest in the subject of the conversation. He had another conversation with her in June, 1893, when, I think, she invited him to partake of her hospitality. He was then with her about two hours. He says that her conversations were sensible and rational. She was dissatisfied with the management of her house and with her servants, and said she was going to break up and go into one of the institutions which she has named as a beneficiary in her will. That is important in showing her mental capacity. It shows also that she had an appreciation of those institutions. She concluded the conversation by stating that Father Flood would take care of her, and that he had charge of all her matters.

"With reference to her alleged delusion, the rule of law I announced in the late case of Joseph F. Johnson, is, in substance, that an erroneous belief suggested as a reason for the disinheritance of an heir, to affect the validity of the will of a testator, must be shown to be an insane delusion.

The young girl Condon, respecting whose condition it is claimed that testatrix was laboring under a delusion, impressed me as being a person not of a robust constitution. ' She admitted on her examination by proponents’ counsel that she was not always strong, and that she had pulmonary trouble. Her voice showed it. This satisfactorily accounts for the not unreasonable supposition of the testatrix that the girl would not live to enjoy a legacy if one was provided for her. Mrs. Levy, the landlady of the testatrix, testified that Mrs. O’Dea came to her and paid her rent every’month; that she knew what she gave her, and if she ever gave her a dollar more than she ought, she insisted on the correct change. She did not tell Mrs. Levy at the time the will was made that she had been to a lawyer’s office. ~We know that when a person'makes a will ho does not proclaim it from the housetop, nor does he inform those whom he has ignored that there is a will in existence. It is not at all improbable that he would fail to inform those for whom he had provided. The making of a will is frequently an act known to those only who participate in its execution until after the testator’s death. The fact that Mrs. O’Dea did not inform her nieces or Mrs. Levy that she had made a will has, to my mind, no significance. If she had told everybody in the house who her beneficiaries were and whom she had not provided for, it would have been strange.

Another fact which goes to show Mrs. O’Dea’s mental condition is her attendance at the different banks.

On tlie 8th day of February, 1893, she personally attended at the Emigrants’ Savings Bank in this city and drew therefrom twenty-two dollars and fifty cents on a draft which she had signed. She also, on August 12, 1892, and on March 23, 1893, personally called at the Seamans’ Savings Bank in this city and drew therefrom on drafts signed by her the respective amounts of ninety-one dollars and twenty cents and sixty dollars.

The testimony of the. nieces is open to this criticism — it is that of interested parties. I think from a consideration of it and of the other evidence in the case it is my duty to decide the case, in the main, upon the testimony of witnesses who are disinterested and whose evidence I am convinced is unbiased and trustworthy. On the evidence I am satisfied that Mrs. O’Dea had testamentary capacity. .She knew of what her property consisted, knew her relatives, and it is proved by a number of the witnesses that she was a woman of considerable intelligence. On a review of the whole case I am satisfied that the will was properly executed in accordance with the requirements of the statute; that Mrs. O’Dea had capacity to execute it, and that she was not unduly influenced.

A decree may be presented admitting the will to probate.


author: O’Brien, J.: Yan Brunt, P. J.: Follett, J.

text:
    Johannes H. Johannessen, Master of the Norwegian Steamship “Raylton Dixon,” Plaintiff, v. John Munroe and Others, Defendants.

      Letter of credit — holder thereof for value — when the complaint must allege that the letter was made for a consideration — liability bas'ed upon an estoppel — motion to amend a complaint — when the granting or refusal thereof is disaretiona/ry.

    A letter of credit may be defined to be a letter of request, whereby one person requests another to advance money or give credit to a third, and promises that he will repay or guarantee the same to the person making- the advancement, or will accept bills drawn upon himself for the like amount. It is called a general letter of credit when it is addressed to all persons generally, and a special letter of credit when addressed to a particular person by name. (Per O’Brien, J.)
    Where it appears from the complaint in an action that the person sought to be charged, for a valuable consideration, issued a special letter of credit upon the faith of which the plaintiff gave value for the benefits derived thereunder, or that the plaintiff, relying upon the faith of representations or statements of the defendants that the letter was issued for a valuable consideration, parted with value, a cause of action is stated; a right to recover in the latter case is based upon an estoppel. (Follett, J., dissenting.)
    A person who accepts a special letter of credit in payment of a debt due is a holder thereof for value.
    As to instruments other than promissory notes, particularly instruments in writing, such as special letters of credit, which are neither negotiable nor assignable, in order to charge the maker or drawer with liability it is essential to prove that such instruments were made for a consideration, unless such liability can be supported by an estoppel.
    Alligations which are essential to be proved in order to maintain an action should be alleged in the complaint therein.
    In an action brought upon a special letter of credit, unless the complaint shows that the defendants agreed, for a valuable consideration, that the draft would be accepted, or expressly in writing agreed so to accept it, or unless the plaintiff, upon the faith of such agreement to accept, parted with something of value to the person from whom he received the letter of credit, no cause of action is stated. An allegation that the defendants duly issued and delivered to a person the letter of credit, and that the defendants informed the plaintiff, before he accepted the letter of credit from the person to whom it was delivered by the defendants, that the same had been duly issued and was available for the full amount thereof, is not equivalent to a statement that a consideration had been given for the letter of credit. (Follett, J., dissenting.)
    Such an allegation is, however, equivalent to alleging that the defendants stated to tlip plaintiff that the letter was valid, and that the obligation created by it would'he met according to its terms; the plaintiff would thereby be justified in acting upon the faith of such representations, and where he does so act, receiving the letter of credit and giving therefor a valuable consideration by taking it in payment of a debt, the defendants will he held liable irrespective of the question as to whether or not they received any consideration for the letter of credit from the person to whom it was originally given. (Follett, J., dissenting.)
    It is a matter within the discretion of the trial court to permit or to refuse to allow the amendment of a complaint upon the trial of an action.
    Where an action was brought against the drawer of a special letter of credit it will add no strength to the cause of action to allege that the firm upon whom the letter was drawn was the same identical firm as that which drew the letter of credit but resident in another place.
    Motion by tbe plaintiff, Joliannes H. Johannessen, master of tbe Norwegian steamship Daylton Dixon, for a new trial on a case containing exceptions, ordered to be beard at the General Term in the first instance, upon the decision of tlie court rendei’ed at the New York Circuit denying the plaintiff’s motion to amend tlie complaint, and granting the defendant’s motion to dismiss the complaint.

      Wilhekrms Mynderse, for the plaintiff.

      George A. Strong, for the defendants.
   O’Brien, J.:

The complaint, in substance, alleges that on February 28, 1892, the defendants issued and delivered to one Boe a letter of credit as follows:

“No. 5687
“ Office of John Munroe & Co., \
“ Bankers, No. 32 Nassau Street,
“New York, February 2Qth, 1892.
“ Messrs. Munroe & Co., Paris :
Gentlemen — We hereby open a credit with you in favor of Captain J. A. Johannessen, ss. ‘Raylton Dixon,’ for fifteen thousand francs (fcs. 15,000), available in bills at ninety days’ date; on acceptance of any bill or bills drawn under this credit you are to draw on Carsten Boe, New York, at seventy-five days’ date, payable at the current rate of exchange for first-class bankers’ bills on Paris on day of maturity. Commission as arranged.
“Bills under this credit to be drawn at any time prior to May 1st, 1892.
“ Truly yours,
“JOHN MUNROE & CO.
“ The above may be availed of in sterling if desired; say six hundred pounds sterling (£600).
“J. M. & Oo.”

Boe, on March 10, 1892, being indebted to the plaintiff, gave and delivered- to him the letter of credit, which the plaintiff accepted as payment by the said Boe at the full face value thereof. Prior to acceptance, the plaintiff was assured by statements and representations of the defendants that it had been duly issued and was available for the full amount thereof in the manner provided by the terms thereof. The plaintiff having accepted the letter of credit from Boe tinder such circumstances, thereupon caused notice to be sent to the defendants and duly drew his bill of exchange or draft upon Munroe & Co. at ninety days for £600 British sterling. The draft was presented for acceptance, and upon acceptance being refused, was protested, and notice given Jo the defendants; and it is for the whole amount of £600, equivalent to $2,912.60, together with the cost of protest and interest, that the plaintiff demands judgment.

At the beginning of the trial defendants moved to dismiss the complaint upon the ground that it did not state any cause of action. After an intimation by the court that the complaint should be dismissed, the counsel for the plaintiff requested to be allowed to amend by adding an allegation which would show that the defendants were co-partners doing business “ under the firm name and style of Munroe & Company in Paris, Prance,” as well as under the firm name and style of John Munroe & Co. in New York. The court denied the motion to amend, and thereupon granted the motion to dismiss the complaint, to which rulings exceptions were taken, which were directed by the court to be heard in the first instance at General Term.

The two questions, therefore, presented are: (1) "Whether the complaint states a good cause of action; and (2) whether it was error in the court to refuse to permit the amendment as requested.

As stated in the American and English Encyclopaedia of Law (Vol. 13, p. 237), “ A letter of credit may be defined to be a letter of request, whereby one person requests .another to advance money or give credit to a third, and promises that he will repay or guarantee the same to the person making the advancement, or will accept bills drawn upon himself for the like amount. It is called a general letter of credit when it is addressed to all persons in general, and a special letter of credit when addressed to a particular person by name.” The letter of credit here sued upon being under all the definitions a special letter of credit, we shall confine ourselves to the rules relating to such an instrument. In the book already quoted, and under the sub-title of “Negotiability,” it is said (p. 213): “ There seems to be no doubt that a special letter of credit is not negotiable; especially is this true when it is more in the nature of a guaranty than when it relates to bills of exchange.” And again at page 240: “ In order to render the writer of a letter of credit liable, either upon an implied acceptance or agreement to accept drafts taken on the faith of such letter, the drafts must be taken for a valuable consideration.”

In the well-considered case of Evansville Nat. Bank v. Kaufman (93 N. Y. 277) we find certain principles and rules laid down for our guidance, which, though taken from their context, may, without introducing confusion, be grouped together. It is therein said: The true distinction between general and special guaranties as contained in letters of credit is, that upon the faith of a general guaranty any person is entitled to advance money or incur liability upon complying with its terms, and can recover thereon the same as though specially named therein. In the case of a special guaranty, however, the liberty of accepting its terms is confined to the persons tó whom it is addressed, and no cause of action can arise thereon except by their action in complying with its conditions. * * * The common-law rule applies to contracts of guaranty as well as to other contracts; that a consideration is necessary to render them valid, and that unless such consideration be acknowledged by the contract itself, it is still necessary to prove one in order to recover thereon. * * * In the case of a special guaranty, the consideration necessary to support the promise may be either one furnished by the principal to the guarantor or by the promisee to either the principal or some third person, according to the terms of 'the guaranty. A general letter of credit is addressed to and invites people generally to advance money, give credit, or sell property, in reliance upon it, and when this is done the contract is complete and the acceptor becomes a party to it and may enforce it for 1ns own benefit. * * * In all of the cases cited where guarantors have been held liable even to third persons upon such instruments, the letter embraces either an express or implied request to such persons to advance value upon the faith of the paper therein described, and it is because they have parted with value upon such request that the liability of the promisor to them is predicated.”

Where it appears that the person sought to be charged, for a valuable consideration, issued a letter of credit, and that upon the faith of it the plaintiff gave value for the benefits thereunder, a cause of action is stated, and, we think, in addition, that if the plaintiff, relying upon the faith of representations or statements of defendants that the letter was issued for a valuable consideration, parted with value, then a cause of action is stated. A right to recover in such case is based on an estoppel. The complaint does not allege that the letter of credit was issued for a valuable consideration, the theory upon which a right to recover is based being that, having inquired and been assured by defendants that the letter of credit was duly issued and available according to its terms, the plaintiff then accepted it in payment of an indebtedness. Under the decisions, this constituted the plaintiff a holder for value, the law being that one who accepts a letter of credit in payment of a debt due is a holder for value. This letter does not purport on its face to have been issued for value received; and the question, remains, notwithstanding the fact that the plaintiff is a holder for value, whether a good cause of action is stated without an allegation showing that it was issued by defendants for a consideration.

Were this a promissory nóte, or governed by similar rules, then it would not be necessaiy to allege that it was issued for a consideration, it having been held, in Underhill v. Phillips (10 Hun, 591), that in an action on a negotiable promissory note it was not necessary to allege or prove a consideration ; and in Carnright v. Gray (57 Hun, 518; affd., 127 N. Y. 92) it was held that it was not necessary to prove value in an action on a negotiable promissory note. These decisions are based upon the statute in this State, relating to promissory notes, and upon the privilege which promissory notes, like bills of exchange, enjoy (a privilege not conceded to other unsealed instruments), of being presumed to be founded upon a valuable consideration. (Story on Prom. Notes [7th ed.], 231, §181.)

With respect to letters of credit, Daniells on Negotiable Instruments (3d ed., § 1790), says: “ While not possessing all the characteristics of negotiability which pertain to bills and notes [they] partake of them to such an extent as to be necessarily classed as negotiable instruments.” We find, however, no authority in this State which goes to the extent of holding that a special letter of credit, such as is here in question, is negotiable.

As to instruments other than promissory notes, therefore, particularly instruments in writing, sucb as special letters of credit, which are neither negotiable nor assignable, in order to charge the maker or drawer with liability, it is essential to prove that such instruments were made for a consideration, unless such liability can be supported by an estoppel. Allegations which are essential to be proved should be alleged. Applying these principles to the case at bar, we think that unless the plaintiff states a good cause of action upon the theory that, as the result of the representations made by the defendants, he accepted the letter in payment of Boe’s indebtedness, thus becoming a holder for value and so entitled to avail himself of the terms of the letter of credit, then the dismissal of the complaint -was right. (See White's Bank v. Myles, 73 N. Y. 337; Birckhead v. Brown, 5 Hill, 634; Evansville Bank v. Kaufmann, 93 N. Y. 273 ; Leslie v. Bassett, 129 id. 525.)

This we regard as the sole theory upon which the complaint can be supported, as we do not think there is much force in the other grounds relied upon, one of which is that the refusal of Munroe & Co., of Paris, to accept the draft created some liability as against the defendants. The defendants could not be held liable for the refusal of Munroe & Co., of Paris, to accept, unless, for a consideration, they contracted that they would accej)t, or unless because of jdaintiff being a holder for value, to whom representations were made, the defendants as against him are estopped. Practically then the question narrows down to the construction to be given to the language of the complaint. If it therein appears that the defendants contracted with the plaintiff for a valuable consideration that Munroe & Co., of Paris, would accept plaintiff’s drafts, or if plaintiff parted with value upon the faith of the letter of credit in a way to create an estoppel, then the complaint is sufficient.

Upon the first branch plaintiff insists that the words in the letter of credit, “ commissions as arranged,” are a statement of a consideration to the defendants, while the defendants as strenuously insist that they have no such meaning, but are a more condensed method of saying to the Paris house, “ Arrange your commission with plaintiff if you act on this letter.” There is no statement in the complaint of a consideration having been paid to the defendants by any one, and the attempt to resort to these words as an equivalent to such an allegation is clearly an afterthought, and as an afterthought we tliink it without force, and we accept the construction contended for by the defendants.

It is further insisted, however, by the plaintiff that there is another aspect to the relation of the parties. The defendants constituted Boe their agent to deliver the letter of credit, and they are bound by his acts, and are chargeable in law with the receipt of the consideration paid to him by the plaintiff, and are liable to the plain-' tiff in this action for the amount or value of the letter of credit.” If there is any strength in this argument it arises, not from the different aspect in which we may regard thp relation of the parties, but from that portion which states that the defendants are chargeable in law with the receipt of the consideration paid to Boe by the plaintiff, which brings it back to the same position from which we have been considering it.

Our conclusion, therefore, is that unless the complaint shows that the defendants agreed for a valuable consideration that the draft would be accepted, or expressly in writing agreed so to accept it, or unless the plaintiff, upon the faith of such agreement to accept, parted with something of value to Boe from whom he received the letter of credit, then no cause of action is stated. In the latter alternative the complaint is sustainable upon the theory of an estoppel, which from its nature requires the support of a consideration. In other words, unless there is a parting with value it is difficult, if not impossible, in any given case, to create an estoppel. Here it is alleged that the defendants duly issued and delivered to Boe the letter of credit, and that the defendants informed the plaintiff before he accepted it that the same had, been duly issued and was available for the full amount thereof. This we do not regard as equivalent to a statement that a consideration had been given for the letter of credit. It was, however, equivalent to saying to the plaintiff that it was valid, and that the obligation created by it would be inet . according to its terms. This certainly would justify the plaintiff in acting upon the faith of such representations, and where, as here, he did so act and received the letter of credit, giving therefor a valuable consideration by taking it in payment of a debt (which, upon all the authorities, would make him a bona fide holder for value), we do not see why, upon such facts, the defendants should not be held liable. In other words, the defendants having, upon the application of Boe, extended to the latter a credit available in favor of the plaintiff, which the plaintiff received, but which, before taking, he inquired about from the defendants as to its availability-according to its terms, and, after assurances such as were here given, it having been then received by the plaintiff for value, we thinlc that, irrespective of the question whether or not the defendants received any consideration from Boe therefor, the plaintiff, as against the defendants, is entitled to recover.

With respect to the other question as to the amendment it was clearly a matter of discretion; nor by the refusal was the plaintiff injured. The action being against the drawer, it would add no' strength to the cause of action to allege that the firm upon whom the letter was drawn was the same identical firm but resident in another place. Its liability is predicated upon its refusal to secure to plaintiff the credit as provided in the letter, and whether, as proof of this, it is shown that the defendants themselves, or some house upon whom they drew the letter, refused to pay the draft, would not strengthen the plaintiff’s position. If, by reason of the issuance of such letter, the plaintiff secured rights as against the defendants,, he can maintain this action as against them, whether they drew the letter of credit upon themselves in Paris or upon some other firm.

. We think, therefore, that the exceptions are well taken, and that there should be a new trial, with costs to plaintiff to abide the event.

Yan Brunt, P. J.:

I concur in the conclusion arrived at by Mr. Justice O’Brien in the case at bar. But I do not concur in his definition of what is now understood in the commercial world as a letter of credit. In the disposition of the question involved in this case there seems to be no necessity for a discussion upon that point. It appears that the plaintiff took this letter of credit for value, accepting it as payment for a debt due by the person from whom he received it. Prior to its acceptance the plaintiff made inquiry of the defendants, and was assured by them that it had been duly issued and was available for the full amount thereof, in the manner provided by the terms thereof. The defendants having made this representation upon which the plaintiff accepted the letter of credit for value, are estopped from alleging that it was issued without value, or because of fraudulent representation. The plaintiff having taken it in good faith for value, after the representations made, has an undoubted right to enforce it.

It is suggested by Mr. Justice Follett that the representation was simply that the letter was genuine and available according to its terms. If the letter was genuine and available according to its terms it is difficult to see why the plaintiff has not a right to enforce it; and if it turned out not to be available according to its terms, why he has not a right to recover the damages sustained.

The exceptions should be sustained and a new trial ordered, with costs to the plaintiff to abide the event.

Follett, J.

(dissenting):

This action is to recover on a special letter of credit, issued February 26, 1892, by the defendants, bankers of New Y ork, to Carsten Boe, and addressed to Munroe & Co., bankers, of Paris, France, for £600 sterling. March 10,1892, this letter was delivered by Carsten Boe to the plaintiff in payment of a debt for £600 sterling, and, on the same day, the plaintiff drew his bill of exchange on Munroe & Co., of Paris, France, for £600, which that firm refused to honor, upon the ground, as it is alleged in the answer, that the letter was issued without consideration, and was obtained by fraud. Aside from certain excepted cases, a plaintiff who seeks to recover on a contract must allege and prove a consideration for the promise. The excepted cases are contracts under seal, contracts executed pursuant to a statute, promissory notes and inland bills of exchange. (1 R. S. 768; Carnright v. Gray, 127 N. Y. 92; Moak’s Van Santv. Pldgs. 164.) If the contract sued on recites a consideration, and is set forth in the complaint, it is a'sufficient allegation of a consideration. The case at bar does not fall within any of the exceptions. It is not alleged in the complaint that the defendants received a consideration for the letter of credit, or that they ever represented that they did, and a cause of action is not stated. It is urged that the defendants are estopped fi-om denying that they received a consideration for the letter. This argument is founded on the allegation that defendants represented to the plaintiff “ that said letter of credit had been duly issued by them, and was available for the full amount thereof in the manner provided by the terms of the said letter of credit or advice.” This was but a representation that the letter was genuine and available, according to its terms. By its terms no action could be maintained thereon by Oarsten Boe without alleging and proving a consideration therefor. It is not alleged that defendants knew when said representation was made that the plaintiff was about to take the letter from Carsten Boe in payment of a debt, or for any purpose or in any manner. There is no estoppel in the case, and the plaintiff stands in the shoes of Carsten Boe. The plaintiff’s exceptions should be overruled, his motion for a new trial denied, and a judgment ordered for the defendants, with costs.

Exceptions sustained and new trial ordered, with costs to plaintiff to abide event.


text:
    Albert B. Rice, Respondent, v. William Geohegan, Appellant.
   — Order affirmed, with ten ollars costs and disbursements. No opinion.


text:
    Anton Exkorn, Respondent, v. Pantina Exkorn, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Horatio N. Bain, Appellant, v. Charles B. Caldwell, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of Margaret H. de Forest, as Administratrix, etc.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Charles H. Southard v. Elizabeth J. Wellwood.
   —Order reversed, with ten dollars costs and disbursements. No opinion.


author: Van Brunt, P. J.:

text:
    Charles E. Hart, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   Judgment and order affirmed, with costs.—

Van Brunt, P. J.:

Although I adhere to the opinion which I have expressed upon the previous appeals in this case, that the evidence failed to disclose any negligence upon the part of the defendant justifying a recovery in this action, my associates having differed from me upon this question, this judgment must be affirmed. There does not seem to be any such difference in the presentation of the question of negligence upon this appeal as would call for a different ruling from that which obtained upon the previous appeals. The judgment and order appealed from must, therefore, be affirmed, with costs.

Follettand O’Brien, JJ., concurred.


text:
    The C. & C. Electric Co., Appellant, v. William F. Wendt and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Catherine Rowe, as Administratrix, etc., Appellant v. The Central Railroad Company of New Jersey, Respondent.
   Order reversed, with ten dollars costs and disbursements. No opinion.


text:
    Martha McNulty v. Edward J. Woolsey and Others.
   Motion granted, with ten dollars costs.


text:
    Newman Cowen and Others v. Samuel Rinaldo and Others.
   Motion for extra allowance

granted as follows: To Goldfogle & Cohn, attorneys for defendant Samuel Rinaldo, $250; to Strong & Oadwalader, attorneys for defendants Hyman Rinaldo and others, $875; to Wilson & Wallis, attorneys for defendant David Rinaldo, $875.


text:
    Robert J. Dean and Others, Respondents, v. August M. Collignon, Appellant.
   Judgment with costs. No opinion.


text:
    Matilde E Goodwin, Individually etc., Plaintiff, v Emily M. Coddington, Impleaded etc., Defendant.
   Motion for new trial denied, with costs to plaintiff and to guardian ad htem payable out of the estate.—

Motion by defendant, Emily M. Coddington, for a new trial on exceptions, pursuant to section 1001 of the Code of Civil Procedure. March 11,1869, Matilda E.Coddington executed her last will and testament which, among other provisions, contains the following: First. * * * I give, devise and bequeath to my children, Jefferson, Gilbert S., Clifford, Matilda E. and Louisa, each an undivided fifth part of all my interest in the building and lot known as Number 17 (Seventeen) Wall Street, in the City of New York, being an undivided three-fourths thereof, for the term of his or her natural life, and after his or her death, I give the same to his or her children, the issue of any deceased child, if any, to take its parent’s share. Should either of my said sons die leaving no issue him surviving I give, devise and bequeath his one-fifth of said premises to such of his above-mentioned brothers and sisters, if any, as may be then living, and the issue of any deceased brother or sister above mentioned, if any, such issue to take the share its parent would have taken if living. If either of my said daughters should die without leaving issue her surviving, I give her one-fifth of said premises to my granddaughter Mary Matilda Moore for her life and after her death to her issue, if any. If none, to such of my said sons and daughters, if any, as may then be living, and the issue, if any, of any deceased son or daughter above mentioned, such issue to take its parent’s share. * * * I hereby order and direct my said Executors and Executrix, the survivors or survivor of them, to hold the proceeds of said premises Number (17) Seventeen Wall Street in five separate portions, and to hold each of said portions until the termination of any life interest hereby created therein for the benefit of the party interested therein.” The will contains a residuary clause devising and bequeathing the remainder of her estate. July 16, 1876, Jefferson Coddington, mentioned in the above-quoted provision, died intestate, leaving Andrew C. Coddington, son, and Emily M. Coddington, daughter, only heirs and next of kin. August 7, 1876, Matilda E. Coddington executed a third codicil to her said last will and testament which, among other pro visions, contains the following: “¡Second. That the one-fifth part of my interest in the promises No. 17 Wall St., which in and by said will I devise to my saidson Jefferson, his issue, etc., shall be divided into four equal parts, one of which I give and bequeath to each of my now surviving children for and during the natural life of such child and after his or her death to the same person or persons who under and by virtue of said will shall be entitled to the remainder of the one-fifth therein devised for life to such child.” February 14, 1882, Matilda E. Coddington died, leaving said last will and testament and codicil unrevoked, which were duly admitted to probate March 6,1882, as a last will, testament and codicil of real and personal property. Letters testamentary thereon were issued to Clifford Coddington, Louisa Coddington and Matilda E. Goodwin (née Coddington), three of the four persons nominated in the will as executors thereof. The fourth nominee, Gilbert S. Coddington, did not receive letters. February 28, 1892, Clifford Coddington died, leaving a last will and testament, which ivas admitted to probate April 12,1892. He left four children who are defendants in this action. March 5, 1892, Louisa Coddington died, leaving a last will and testament, which was admitted to probate March 25,1892. She died unmarried and without issue. April 11,1892, this action was begun by the sole surviving executor of Matilda E. Coddington for an accounting and for a determination of the rights of the parties under the clauses in the will and codicil above quoted. By the prayer for judgment the court is asked to determine the rights and interests of the parties to this action and of all persons now having or who may have any j estate or interest under the last will and tes-1 tament of Matilda E. Coddington. When judgment was entered herein two of the testrix’s children mentioned in the clause of the will and in the second clause of the third codicil were living, to wit, Matilda E. Goodwin, who had two children, and Gilbert S. Coddington. who had no descendants. There were also living four grandchildren, the children of Clifford Coddington, and two grandchildren, the children of Jefferson Coddington, deceased, and Mary M. Moore. Emily M. Coddington alone answered, and she asked the court to decide (1) that under the clause of the will and codicil quoted she and her brother had a vested remainder in fee in one-fifth of No. 17 Wall street; (2) that in case of the death of any of the sons or daughters of the testatrix, without issue, Emily M. Coddington and her brother would take the share that their mother would have taken, if living. These requests were refused and exceptions taken. The court held that Emily M. Coddington and Andrew C. Coddington were not then entitled, by reason of the deaths of said Louisa Coddington and Clifford Codding-ton, to any present share or interest in possession in No. 17 Wall street and “ that the rights and interests in remainder of said Andrew C. Coddington and said Emily M. Coddington are as stated in said will and codicil.” To this decision the defendant excepted.— Follett, J.: By the clause in’the will above quoted the testatrix devised to every one of her five children an estate for life in one-fifth part of No. 17 Wall street, and after the death of any one leaving children, to his or her children. In case one of the three sons should die without issue his one-fifth went in fee to his surviving brothers and sisters, and to the issue of any deceased brother or sister, such issue to take the parent’s share. In case a daughter died without leaving issue her fifth of said premises went to the testatrix’s granddaughter, Mary M. Moore, for life, and after her death to her issue, if any, but if she left no issue, to the testatrix’s sons and daughters then living and to the issue of any deceased son or daughter, the issue to take the arent’s share. After the death of her son efferson, leaving two children, Emily M. and Andrew 0. Coddington, the testatrix executed a third codicil containing the provision above quoted. The question presented is, what change did the testatrix intend to make in the disposition which she made by her will of No. 17 Wall street? She reaffirms her division of the property into fifths and directs that the fifth devised in her will to Jefferson shall be divided into four equal parts, one of which parts she devised for life to each of her four children then surviving, Gilbert S., Clifford, Matilda E. and Louisa, “ and after his or her death to the same person or persons who under and by virtue of said will shall be entitled to the remainder of the one-fifth therein devised for life to such child.” Upon the death of Louisa Coddington, without issue, the remainder of the fifth “ therein (in the will) devised for life to such child Louisa,” went, not to any son of the testatrix, or to the children or issue of any deceased son of the testatrix, but to Mary M. Moore for life, and remainder to her issue, if any. The remainder of the one-fourth of the fifth devised in the will to Jefferson for life, but by the codicil devised to Louisa for life, goes under the codicil to the “same person or persons” to whom the remainder of the original fifth devised to her for life goes under the will, ?. to Mary M. Moore for life, and remainder to her issue. Upon the death of Clifford Coddington leaving four children, the remainder of the fifth devised to him for life went, not j | to the children of Jefferson, but to his own children in fee, and the remainder of the fourth of the fifth originally devised to Jefferson, but by the codicil to Clifford, goes to the “same persons” — his children The term “such child ” is twice used in the clause of the codicil under consideration, and on the first occasion it refers beyond question to one of the four children of the testator then living, and we think it was last used in the same sense, and the term “same person or persons” includes the issue of the four children who take a life estate under the will as modified by the codicil, but does not include the children of her deceased son Jefferson. What interest Emily M. and Andrew C. Coddington may acquire, if any, by the death of Matilda E. Goodwin, Gilbert S. Coddington and Mary M. Moore, or of any one of them, can be determined only after those events. It may be that all of them will leave children, and it may be that neither Emily M. nor Andrew C. Coddington will survive any one of those events. The motion for a new trial should be denied, with costs to the plaintiff and to the guardian ad litem payable out of the estate.

Van Brunt, P. J., and Parker, J., concurred.


text:
    In the Matter of Benjamin Lord.
   Motion denied.


text:
    Morris Tolk, Respondent, v. James Lynch, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Fredericka Rabenstein, Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    William Rabenstein, Respondent, v. The Manhattan Railway Company, Appellant
   —Judgment affirmed, with costs. No opinion.


text:
    Ichitaro Morimuro, Respondent, v. Mukuro Newa and Others, Appellants.
   Motion to open default granted upon payment of costs and disbursements, referee’s fees and allowances contained in the judgment and costs and disbursements of appeal, with a waiver of all costs or disbursements, which may have been incurred in the contempt proceedings and also upon appeal from order denying motion to punish for contempt. Upon these terms the defendant should be allowed to come in and defend in the action for an accounting. No opinion.


text:
    Ichitaro Morimuro and Others, Respondents, v. Mukuro Newa and Others, Appellants.
   Order denying motion to punish for contempt affirmed, without costs, No opinion.


author: Per. Curiam :

text:
    The Communipau Coal Company, Respondent, v. Albert Gray, Appellant.
   Judgment affirmed, with costs.—

Per. Curiam :

It was alleged in the complaint that prior to April, 1892, the plaintiff sold and delivered to the defendant coal of the value of $3.111.30; that shortly thereafter the defendant, being pressed for payment, represented to plaintiff that he was the owner of certain parcels of unincumbered real estate, and thereby induced the plaintiff to accept notes, aggregating $883.25, for coal delivered during the preceding months of September and October; that such representations were false, and knowledge of the fact coming to the plaintiff, it elected to return the notes and cancel the extension of credit which they were given to secure. The answer put in issue every allegation in the complaint and set up a counterclaim, to which the plaintiff interposed a reply. When the action came on for trial the defendant was permitted by the court to withdraw so much of his answer as alleged a counterclaim. Thereupon, the counsel for the plaintiff and Mr. Fromme, counsel for the defendant, caused to be entered upon the record in open court the following: “ Plaintiff's Counsel — How about the denial of the circumstance under which the credit was obtained? Mr. Fromme — Yes, that is the only issue, the denial of false representations. Plaintiff’s Counsel — There is no question about the amount of the sale? Mr. Froatsie — No; we will expedite the matter. There is no question about the coal having been received as far as that is concerned. Simply on the question of -fraud ; as to whether we were guilty of any fraud.” The effect of these stipulations was to leave open for further controversy the right of the plaintiff to recover in that action the amount represented by the notes. Upon that question the plaintiff presented such evidence of fraud as entitled it to go to the jury, and the trial court so decided, the result being a verdict for the plaintiff in the full amount claimed. During the progress of the trial testimony was elicited tending to show that at the time defendant made the representation as to 1ns responsibility it was understood thai he should have an extension of time within which to pay the entire sum due, but how much time was not stated. Thereupon, the defendant asked leave to amend his answer by inserting a clause to the effect that the action was brought before the debt became due, because the time of payment was extended. This was refused, and in view of the stipulation of counsel to which we have referred, and the facts then before the court, we think the discretion of the court was properly exercised. Nor did the court err in directing the jury to find for the plaintiff the amount claimed less that represented by the pote. The effect of the stipulations of counsel at the opening of the case, considered in connection with plaintiff’s formal proof, was such as to entitle the plaintiff to a direction in its favor except as to the notes. Touching the amount of the indebtedness for 'which notes were given and afterwards returned, no complaint is made'of the manner in which the questions involved were presented to the jury. The judgment should be affirmed, with costs.

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


text:
    Decisions handed down February 12, 1895.
    William J. Comley and Others, Respondents, v. George W. Archer, Appellant.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion. Herrick, J , not acting.


text:
    Town of Fort Covington, Respondent, v. The United States and Canada Railroad Company and The Grand Trunk Railroad Company, Appellants.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.


text:
    In the Matter of the Claim of Warren B. Agan, Respondent, v. Hiram File, as Executor, and Eliza M. Agan, as Executrix, etc., of Lyman B. Agan, Deceased, Appellants.
   Judgment affirmed, with costs. — Mem. by Herrick, J. Not published by direction of the court.


text:
    Jacob M. Mertens, Plaintiff, v. John B. Marzluff, Defendant.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.


text:
    William H. Thomas, Appellant, v. William B. Gage, Respondent.
   Judgment affirmed, with costs. No opinion. Putnam, J., not acting.


text:
    Frank Pardridge, Respondent, v. Julia Beillot, Appellant.
   Judgment affirmed, with costs. Mem. by Herrick, J. Not published by direction of the court.


text:
    Nettie M. Dayton, as Administratrix, etc., Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Henry L. York, Respondent, v. Ætna Live Stock Insurance Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    The Berry Harvester Company, Appellant, v. The Walter A. Wood Mowing and Reaping Machine Company, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Earl G. Watrous, Respondent, v. The Walter A. Wood Mowing and Reaping Machine Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Nellie O’Brien, Respondent, v. The National Life Association, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Stephen H. Niles, Respondent, v. Henry N. Johnson and Sarah A. Johnson, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    George W. Pike, Appellant, v. Willis T. Honsinger, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Alonzo McConihe, Respondent, v. Charles E. Thompson, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Decisions handed down February 26, 1895.
    Moses F. Goldstein, Respondent, v. Grace E. Strait and Others, Appellants.
   No opinion.


text:
    Albert Fletcher, Plaintiff, v. Myron C. Baker and Others, Defendants.
   Motion for reargument denied, with ten dollars costs. No opinion.


author: Mem. by the Court :

text:
    Effie B. Oliver, Plaintiff, v. Margaret B. French and Others, Defendants.
   Motion for reargument denied, with ten dollars costs.—

Mem. by the Court :

It is urged that a re-argument of this case should be had, for the reason that the opinion handed down by this court discusses the defective notice of motion and the case does not show that the objection that it was defective was taken before the Special Term. On the argument before this court, the objection was taken orally, and elaborately discussed by respondents’ counsel in his printed points, and no objection was made that that question was not raised in the court below, which is probably the reason of the discussion of the defective notice of motion in the opinion handed down by the court. But whatever led to that discussion in the opinion, the motion was also considez’ed upon its merits, and the conclusion of the Special Term was fully concurred in by this court. On this motion for a reargument the respondents show by affidavit, which is denied by affidavit on the part of the appellant, that the specific objection that the moving papers were defective was made at the Special Term before the argument upon the merits. But there seems to be another and almost insuperable objection to this court’s granting any relief on the appeal from the order in question. No specific error in the judgment being stated, either in the order to show cause, which was in this case, the notice of motion, or in the affidavit upon whicli it was granted, a reversal of the Special Term order by this court would furnish the moving party no relief, unless an order modifying the judgment was made by this court on appeal; and. m the absence of any specific designation in the moving papers of the particular irregularity complained of, it is difficult to sec how this court could, from an inspection of the voluminious record, satisfactorily correct the supposed irregularities which the appellant claims existed, without having the attention of the court directed specifically to them, either in the notice of motion, or the affidavits on which the motion was made. The motion for a reargument is denied, with ten dollars costs and printing disbursements.

Present — Mayliam, P. J., Putnam and Herrick, JJ.


text:
    Margaret A. Swift, Plaintiff, v. Charles H. Swift, Defendant.
   Motion to resettle order granted.— Resettled as proposed. No opinion.


author: Mem. by the Court:

text:
    Susie Sheldon, Plaintiff, v. Cornelia Mott and Others, Defendants.
   Motion to dismiss appeal denied, with ten dollars costs, without prejudice to renewal of motion.—

Mem. by the Court:

On the 9th day of April, 1894, an order was made in the above entitled action dismissing plaintiff’s complaint, and judgment entered thereon; the plaintiff thereafter appealed therefrom to this court. Pending such appeal, and on the 27th day of November, 1894, an order ivas made at a Special Term of this court whereby Alonzo P. Strong was substituted as the plaintiff’s attorney of record in this action in place of Frank H. Short, from which order Mr. Short appealed to this court. On the 21st day of December, 1894, Justice Martin granted an order staying all proceedings on behalf of the plaintiff herein, or by and on behalf of Alonzo P. Strong, as attorney or otherwise, on the order granted by a Special Term of this court (being the order of substitution referred to) * * * until the decision of the General Term upon the appeal taken from such order by the appellant, Frank H. Short.” Thereafter, on the 4th day of February, 1895, the said Frank IT. Short ivas served with affidavits and notice of a motion to be made at this term of the court to dismiss the appeal from the order herein granted on the 9th day of April, 1894, dismissing the plaintiff’s complaint Jn this action, “and for such other relief as may be just, with costs of motion against Frank H. Short personally.” The notice of motion was signed “Alonzo P. Strong, appearing as attorney for Susie Sheldon, plaintiff, for the purposes of this motion.” It is unnecessary to discuss the merits of the motion or allude to the contents of the affidavits upon which the motion is founded. The motion is made by Alonzo P. Strong, as attorney for the plaintiff. He has heretofore been substituted as attorney for the plaintiff, but an order has been granted by a justice of this court prohibiting liim from acting upon such order until the hearing and determination of the appeal therefrom. His claim is that he is not violating such stay, because the stay prohibits him from taking any proceedings on that order, and he professes that he is not appearing for the plaintiff pursuant to such order; thai his appearance is for the purposes of this motion only. This seems to us merely an evasion. The stay cannot be nullified by a special appearance. The order appointing an attorney for the plaintiff appoints him as attorney in this action. If he succeeds in this motion now before us the action will be finally ended and disposed of; everything that can be accomplished by an attorney of record will have been accomplished. He will have acted as attorney for the plaintiff in this action, and will have accomplished all that an attorney could do; he will have discharged those functions which the order of the Special Term substituting him as an attorney of record was intended to enable him to discharge, and that despite the order of Justice Marlin prohibiting him from so doing. IVe do not think that we should permit orders of justices of this court to be thus trifled with or evaded. The proper course to pursue is to endeavor to have the stay vacated or modified. The motion is, therefore, denied, with ten dollars costs, to be paid by Mr. Strong personally, without prejudice, however, to the renewal of the motion upon the vacation or modification of the stay of proceedings herein referred to.

Present— Mayham, P. J., Putnam and Herrick,


text:
    Gervis G. Decore, Plaintiff, v. Samuel L. Wheeler, Defendant.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.


text:
    In the Matter of the Estate of Henry G. Lapham.
   Order of the surrogate reversal, and the case remitted to the surrogate, witTt direction to grant motion, with ten dollars costs and printing and other disbursements. No opinion.


text:
    Henry Bahr v. Edison General Electric Company.
   Order reversed, motion to open de- . fault and vacate judgment granted, with ten dollars costs of this appeal and printing and other disbursements. No opinion.


author: Mem. by Herrick, J.:

text:
    In the Matter of the Application of Caroline J. Dewey, etc.
   Order modified as per memorandum, with costs.—

Mem. by Herrick, J.:

An order has been entered in this matter stating that the decree of the surrogate “is reversed upon the law and facts.” It is contended that that was proper in view of the twelfth finding of the surrogate in his findings of fact, “ that the balance unpaid #is $137.29;” and that it follows as a necessity from the conclusions of the opinion that such finding is reversed. In truth the decision of the surrogate was reversed upon a question of law. If the finding of the surrogate, “ that the balance unpaid is $137.29,” is a conclusion of fact, which I very much doubt, that conclusion of fact was reached by him by reason of the same error of law which was discussed in the opinion, and, therefore, while it may be said that the surrogate’s conclusions of fact are reversed, they are so reversed because of the error of law committed by him. The order entered herein should, therefore, be modified so as to read: Ordered, that the decree of the surrogate of Clinton county be. and the same hereby is reversed upon questions of law, and that the costs and disbursements of said appeal be paid by said executors to the appellant from the estate of Silas II. Dewey. And it is further ordered, that the said proceedings be and the same are hereby remitted to the surrogate of Clinton county for a rehearing herein.

Mayham, P. J., and Putnam, J., concurred.


author: Dykman, J.:

text:
    Prospect Park and Coney Island Railroad Company, Respondent, v. The Atlantic Avenue Railroad Company and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

This is an appeal from an order restraining the defendants iiitliis action from carrying passengers between the Union Depot in Brooklyn and Coney Island upon the Brooklyn, Bath and West End railroad for less than fifteen cents for a single trip or twenty-five cents for a round trip for an adult, or for less than half those rates for children between the ages of five and twelve years. The action is based upon a contract between the plaintiff and the Brooklyn, Bath and West End Railroad Company which secures the right to the plaintiff which is sought in this action, and the violation of which is restrained by the order of the Special Term from which this appeal is taken. This action is denominated suit No. á between these same parties. Suit No. 1 lias been tried and decided in favor of the plaintiff. It was an action for the specific performance of the same contract, and the judgment in that case is an adjudication of the validity of the contract and decisive of this appeal. We have affirmed the judgment in that case uf)on the opinion of Judge Cullen, and it follows that this order should be affirmed, with ten dollars costs and disbursements.

Brown, P. j., and Pratt, J., concurred.


text:
    Charles T. Dunwell, Appellant, v. The Berkshire Life Insurance Company, Respondent.
   Judgment and order affirmed, with costs. No opinion.


text:
    Elizabeth Birch and Others, Appellants, v. Rosalie M. Loyd, Respondent.
   Judgment and order denying motion for a new trial on the minutes affirmed, with costs, and order denying motion for a new trial on newly-discovered evidence affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

There are three appeals in this case, one from the judgment entered upon the verdict in favor of the defendant after a trial at the Circuit, one from the order denying a motion for a new trial upon- the minutes of the court, and one from an order denying a motion for a new trial on the ground of newly-discovered evidence, and the appeals are all entirely destitute of merit. Justice has been done, and the judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs, and the order denying the motion for a new trial upon newly-discovered evidence should be affirmed, with ten dollars costs and disbursements, without an opinion.

Brown, P. J., and Pratt, J., concurred.


author: DykmáN, J.:

text:
    James J. Dawson, Appellant, v. Henry Harrison, Respondent.
   Judgment modified so as to allow interest on the loan of $3,000, and upon the usurious payments at six per cent, with half yearly rests, and, as modified, affirmed, with costs.—

DykmáN, J.:

This is an action to procure the dissolution of a eo-partnersliip. The cause was tried before a referee to hear and determine, and the plaintiff has appealed from che judgment entered uppn his report. The determination of the case depended upon peculiar facts, and we think substantial justice has been wrought out in this exception. The judgment should be modified so as to allow interest on the loan of $3,000, and upon the usurious payments at six per cent, with half yearly rests, and, as so modified, affirmed, without costs.

Brown, P. J., and Pratt, J., concurred.


text:
    Thomas McCann, Respondent, v. Jacob May, Appellant, Impleaded, etc.
   Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs. All concur. No opinion.


author: Per Curiam :

text:
    The Atlantic Avenue Railroad Company of Brooklyn, Appellant, v. The Long Island Railroad Company and Others, Respondents.
   Judgment affirmed, with costs —

Per Curiam :

The opinion of the judge -who tried this eause discloses sufficient grounds to justify the judgment which was rendered. Affirmed.

Present— Brown, P. J.,and Dykman, j.


text:
    John Muldoon, Respondent, v. Charles A. Canavello, Appellant.
   Judgment affirmed, with costs.—

Dykman, J.:

This action was brought to foreclose a mechanic’s lien. There has been a trial before a justice of this eourc without a jury, and the plain!,iff has obtained a judgment from which the defendant has appealed. The lien was for labor performed in the excavation of a cellar. The sendees and their value were undisputed, and the question upon which the decision of the case depended was whether the work was done for the defendant or not. The testimony made it plain that the arrangement made by the defendant with the plaintiff was an original undertaking, and rendered him liable for the work done. The findings of the trial judge are well supported, ancl the judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.


author: Brown, P. J.:

text:
    The People of the State of New York v. Daniel Kerrigan.
   Judgment reversed, and new trial granted.—

Brown, P. J.:

The appellant was convicted of the crime of manslaughter in the second degree, in having killed one William Horton. After a careful examination of the case, we are of the opinion that the evidence does not establish the appellant’s guilt, and is of too weak a character to support the' verdict. It appeal's that about four o’clock on the morning of November 7, 1893, the appellant and deceased were in Gaffney’s saloon on Flushing street in Long Island City in company with William Gemp, Patrick McDermott, Daniel Stine and‘William Gaffney. Horton was drunk and Kerrigan bad been drinking. They quarreled, but no blows were struck, and at the direction of the bartender, Gaffney, they went out of tbesaloon. McDermott was told to go outside and separate them. He testified that he went out and found them struggling together; that their arms were around each other as if they were wrestling, but he saw no blows struck, and separated them, and all then returned to the saloon. W hen inside, Horton was found to have a cut about an inch and a half long over his right eye, and he said, referring to Kerrigan, that “he must have used a knife on me.” The .blood was washed from his face, and on his complaining that he ivas cut in another part of his body, he was examined, but no wound was found. There was no proof that Kerrigan had a knife about him at any time during “the night. Soon after all parties left, except Horton and Gaffney, and later Horton left the saloon alone. He was then drunk, but able to walk. No one saw him alive after that, and no account is given in the testimony of his whereabouts between 'his leaving the saloon and his death. Neither is it shown where or how he died, or who found his body, or under what circumstances it was found. Dr. John Clayland was sworn as a witness for the prosecution, and testified that on November ninth, between four and five o’clock in the afternoon, he made anautopsyupon Horton’s body, and that, in his opinion, he had then been dead from twelve to twenty-four hours. He found abrasion on the limbs; the eyes were black; there was a wound over the right eye, discoloration extending down to the cheeks; bruises on the side of the head. He stated the cause of death to have been inflammation of the meninges of the brain, and gave it, as his opinion, that the cause of that inflammation was the blow which inflicted the wound over the eye. The deceased was shown to liave been a drunkard for a long time. He had been in the hospital in October prior to his death, suffering severely from alcoholism, and his lungs, heart and kidneys were found in the autopsy to be in a very advanced state of disease. The physicians called on the trial differed as to the cause of Horton’s death. All agreed that the inflammation, ■which was the immediate cause of death, might have resulted from other causes than the blow over the eye. Dr. Clayland thought the blow the proximate cause of death, while the other physicians appeared to be of the opinion that it was just as probable that death was the result of alcoholism. Dr. Burnett, who was called by the prosecution, testified that he could not say whether the primary cause of death was the blow or other cause; that the blow might have caused the inflammation, but he was unwilling to swear that it did. The primary cause of Horton’s death was plainly pure speculation. It was, in the first place, an inference solely that Kerrigan struck him over the eye. Ño one saw the blow struck, and Horton did not directly assert that Kerrigan had struck him. His remark that Kerrigan must have used a knife on him was rather an inference drawn from the wound and the presence of the blood on his face. Such a statement from a drunken man has, we think, very little probative force. Beyond the slight loss of blood, Horton appeared not to have suffered any ill effects from the blow, however received, and when he left the saloon was in about as good physical condition as he was when he entered it. (Jiving to all this evidence the full effect claimed for it, and which,the jury appear to have given it, it does not permit the conclusion beyond a reasonable doubt that Horton died from the effects of Kerrigan’s blow. The absence of any evidence as to the subsequent movements 01 Horton throws great doubt on the cause of his death. Kerrigan was sworn as a witness in liis own behalf and denied striking the blow. His version of the matter was, that when Horton came toward him he fell and cut himself; that he lifted him to his feet, and was struggling with him when McDermott separated them. He denied having a knife or inflicting the wound, and his testimony appears to be as worthy of credit as that of any of the other witnesses who were in the saloon. We think the evidence is of too weak a character to sustain the verdict, and the judgment should be reversed and a new trial granted.

Pratt and Dykman, JJ., concurred.


author: Pratt, J.:

text:
    In the Matter of the Estate of Harriet M. Foster, Deceased.
   Decree of the surrogate affirmed, with costs.—

Pratt, J.:

In the above matter the surrogate from whose decision the appeal was taken has filed an opinion which fully states the ground upon which the decree was entered. I recommend an affirmance without ! any further opinion, with costs.

Dykman and | Cullen, JJ., concurred.


text:
    The People of the State of New York ex rel. The New York and Eastern Telegraph and Telephone Company, Respondent, v. George W. Plympton and Others, Constituting Board of Commissioners of Electrical Subways of the City of Brooklyn, Appellants.
   Order affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

This is an appeal from an order which awarded to the relators a peremptory writ of mandamus, requiring the board of commissioners of electrical subways of the city of Brooklyn to approve a plan and grant a permit to the New York and Eastern Telegraph and Telephone Company to erect and suspend telegraph and telephone wires from and along the Kings County Elevated railway and to place electrical conductors in subways to be constructed along certain streets in the city. Our examination satisfies us that the proper disposition was made of the case by the Special Term, and the reasons therefor are satisfactory. The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred; Cullen, J., not sitting.


author: Dykman, J. :

text:
    Matilda Clark, Respondent, v. The City of Newburgh, Appellant.
   Judgment and order denying motion for new trial affirmed, with costs.—

Dykman, J. :

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying the motion of the defendant for a new trial upon the minutes of the court. The action was for the ecovery of damages resulting from an injury sustained by the'plaintiff from a collision with a wagon. It appeared upon the trial that the plaintiff was thrown down and injured at a crosswalk in one of the public streets of the city of Newburgh, by a wagon drawn by two horses which were driven by a person in the employ of the defendant. In respect to the question of the negligence of the driver of the defendant, and the contributory negligence of the plaintiff, the testimony was such as to make the case a proper one for the jury. The motion for a nonsuit was, therefore, properly denied. There was no exception to the charge of the trial judge, and there was no error committed upon the trial. The judgment and order denying the motion for a new trial is affirmed, with costs.

Pratt, J., concurred; Cullen, J., not sitting. .


text:
    Hanna Johanson, Respondent, v. Olaf A. Sjostrom, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Grant B. Taylor, as Receiver, etc., Respondent, v. The Port Jefferson Milling Company, Appellant.
   Judgment affirmed, with costs.—

Pratt, J.:

This is an appeal from a judgment entered upon a trial by a judge without a jury. There is no substantial dispute about the facts and the result of the trial seems to be entirely just and proper. At first blush it seems strange that a judgment should have been ordered for the full amount of the note, but it is provided by statute (Laws of 1853, chap. 400, § 13) what shall be the form of the judgment, and no injustice follows because the executors can issue for no more than is actually due, and such course was carried out in this case. At the settlement of the first suit the premium note was not given up and the defendant remained liable upon it for all assessments that had 6r should accrue prior to the cancellation of the policy, which accrued on the 10th of September, 1890. The contention of the defendant, that the settlement of the first suit was an accord and satisfaction between the plaintiff and defendant or a release of the defendant from further liability, is not sustained by the evidence; in-if such had been the intention of the parties, it would have been void as against ox'sting creditors of the plaintiff's corporaThe statute under which the' directors this insurance company acted limited them giving up the note only after the mak er had his proportion of all losses that had accrued during the term of insurance. (See statute before referred to; Hyatt. Receiver. v. Walt & Simmons, 37 Barb. 29.) The assessment sued for was made in July, 1890, and surrender of the policy was in September, and there seems to have been no provision made for the losses accrued between dates. From this it is a fair inference the officers not only did not give up the but never intended to release the defendfrom liability thereon until he had fully complied with his duty under the statute by paying his proportion of the losses and expenses. A just result was reached by the judge and no error is pointed out sufficient to warrant us in disturbing the judgment. The defendant insists that an error committed, because in this suit part of assessment upon which a prior sui t brought included in this action. The answer to contention is that part of the assessment allowed to the defendant and the judgment as if it had not been included, so that, as against this defendant, no injustice was done, and the Judgment is the same as if it had not been included in the last assessment. A mistake in including a previous assessment may corrected upon the trial as well as any other mistake of figures in so far as it does not prejudice a party. It is only invalid as against a party prejudiced thereby. N either does the fact that the receiver demanded too much render the demand void. The court found in its ninth finding of law, u That the agreement of 17th of September, 1890, subsequently consummated, was a complete settlement and adjustment of all liabilities of the defendant upon its said note.” The use sought to be made of this finding of law is inconsistent with the facts proved and with the judgment finally rendered. Notwithstanding all the technical objections raised, the judgment is entirely proper and just and must be affirmed.

Dykman and Cullen, JJ., concurred.


text:
    In the Matter of the Probate of the Last Will and Testament of Myra Clark Gaines, Deceased.
   Appeal dismissed, without costs.


text:
    The People of the State of New York ex rel. Charles W. Klebisch, Respondent, v. Charles Gearing, Jr., as Trustee, etc., Appellant.
   Judgment affirmed, with costs ana disbursements. No opinion.


text:
    Owen Briardy, Appellant, v. The County of Kings and the County of Queens, Respondents.
   Judgment affirmed, with costs. Opinion by Cullen, J., decided with Albrecht v. County of Queens, see ante., page 399.


text:
    James H. Ryan and Another, Respondents, v. Francesco Pistone, Appellant.
   Reargument ordered.


text:
    Decisions handed down February 20, 1895.
    The People of the State of New York ex rel. Granville W. Harman, as Register, etc., v. Henry H. Adams, as County Treasurer of the County of Kings.
   Order affirmed, without costs. No opinion.


text:
    Catherine L. Tonjes, Respondent, v. John H. Tonjes, Appellant.
   Judgment modified by reducing the alimony to the sum of $700 per year, and, so modified, affirmed, without costs. No opinion.


text:
    Dimont M. Caldwell, Respondent, v. Mutual Reserve Fund Life Association, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. No opinion.


text:
    Samuel Corn and Another, Respondents, v. Isaac Stern and Others, Appellants.
   Order reversed, with ten dollars costs and disbursements. No opinion.


text:
    John E. Blackman, Plaintiff, v. Charles Riley, Respondent; Jane A. Dorland, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew upon new papers on payment of costs. No opinion.


text:
    Marie M. La Favre, Appellant, v. Clifford A. Hand, as Executor, etc., Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    David Belasco v. N. K. Fairbank and Others.
   Motion denied, with ten dollars costs.


text:
    Louis Greve v. Ætna Live Stock Insurance Company.
   Motion granted.


text:
    John McNamara, Appellant, v. The Mayor, etc., Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Susie M. Sturges and Another, Respondents, v. A. Beekman Cox and Another, Executors, etc., Appellants.
   Order affirmed, with ten dollars costs. No opinion.


text:
    Thomas J. McKee and Another, Executors, etc., Respondents, v. The New York Elevated Railroad Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Eliza Oliphant, Respondent, v. Metropolitan Elevated Railroad Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Cortlandt S. Van Rensselaer, as Trustee, etc., v. Lorenzo Goodwin and Others.
   Order affirmed, with ten dollars costs and disbursements. No opinion.