author: Yan Brunt, P. J. :

text:
    George Washington, Respondent, v. The Staten Island Rapid Transit Railroad Company, Appellant.

      Defective clock- — voluntary use of it with knowledge of its condition — contributory-negligence.

    A party cannot voluntarily make use of a dock or pier, knowing that it is unfit for the purpose for which he proposes to use it, and then claim compensation for damages sustained by reason of the imperfections of which he had knowledge.
    The act of the owner of a canal boat in voluntarily remaining at a dock to unload, after he has ascertained that his boat is liable to be injured by the condition of the bottom of the dock, constitutes contributory negligence, which prevents his recovering damages from the lessee of the dock for injuries thereafter sustained by the boat by reason of the condition of the bottom of the dock.
    Appeal by tbe defendant, the Staten Island Rapid Transit Railroad Company, from a judgment of tlie Supreme Court, entered in the office of the clerk of the city and county of New York on the-14th day of December, 1892, in favor of the plaintiff, upon a. verdict rendered at the New York Circuit on the 9th day of December, 1892, and from an order entered in said clerk’s office on the 13th day of December, 1892, denying the defendant’s motion for a new trial, made upon the 'minutes.

      A. JBoardman, for the appellant.

      Mr. Hyland, for the respondent.
   Yan Brunt, P. J. :

This action was brought by the owner of the canal boat M. H.. Washington to recover damages sustained by his vessel by reason of the bad condition of the bottom of a certain dock at Clifton, S.. I., of which the defendant was the lessee.

It appeared that the Staten Island Railroad Company in 1884 leased to the defendant for the term of ninety-nine years the premises in question, with others, and that the defendant agreed to-keep and maintain the demised premises for and during the term of' the lease in good condition and repair, and at the termination thereof to restore the same, etc. It was admitted upon the trial that the; dock was in the possession of one Lord, who paid rent to the defendant; but wbat tbe terms and conditions were under wbicli Lord was in possession of the dock nowhere appeared.

The evidence showed that the plaintiff came with his boat loaded with coal to be unloaded at this wharf; that he arrived at five o’clock in the morning when the tide was falling; that he sounded the bottom and laid his boat so that he could discharge by means of a derrick which was upon the dock. As the tide went out his boat rested upon the bottom. There were big lumps upon the bottom and she sprang a leak as soon as she got upon the bottom. When the tide rose again the leak stopped and the plaintiff commenced unloading his boat. During the time the plaintiff was there she rested on the bottom, eight times and leaked every time, and the plaintiff having shifted his boat for the puipose of getting the coal out of her, the boat was affected in different places by the unevenness of the bottom, and for that reason was more considerably injured than if she had not been moved.

In view of this evidence the court was asked to charge the jury that if they believed that these injuries or any part thereof were caused by the plaintiff remaining at the dock after he- knew the condition of the bottom, for these injuries he could not recover.

This the court refused to charge, and an exception was duly taken. We think this was error. After the plaintiff had ascertained the unevenness of the bottom, by which his boat was liable to be injured, his voluntary continuance at this dock certainly was negligence, which contributed to such portion of the injuries as were thereafter sustained.

It further appears from the evidence of the plaintiff himself, that for the purpose of unloading his boat he changed her position, so that she became injured in different and other places of her hull, which would not have been the case had she remained in the same position, and certainly would not' have been the case had she been removed when he discovered the difficulties which attended his lying there. But with full knowledge of the danger he was running, he allowed his boat to ground eight times, and thereby become injured in the serious manner claimed upon the trial.

A party cannot make use of a pier knowing that it is unfit for the purpose for which he proposes to use it, and then claim compensation for the damages sustained by the imperfections of which he had. knowledge. The plaintiff, therefore, upon ascertaining the fact that this dock was unfit for. his purposes, which it is apparent he knew before he commenced unloading his boat, was bound to remove in order to escape damage, not to lie there for four days apparently for the purpose of having his boat injured as much as possible by the inequalities of the bottom.

All the cases cited to support the plaintiff’s claim rest on the cardinal principle that the master of the boat had no knowledge of the obstruction which caused the injury ; and that it being one which was discoverable by reasonable care upon the part of the owner of the dock, the boat owner, being without fault, can recover. “ The master of a vessel has a right to presume that all parts of a dock are safe, and is not guilty of contributory negligence by taking his boat to a place which might, under circumstances not anticipated by him, • be less safe than' another,” is the rule laid down in 2 Shearman & Redf. on Negligence (4th ed), § 727. But no case can be found where after the master of the boat has learned of the defect, and he still persists in imperilling his boat by the use of the dock, he has a right to recover for the voluntary injury sustained after the discovery of the imperfection.

We think, therefore, the court erred in refusing to charge as requested, and that for this error the judgment must be reversed, and a new trial ordered, with costs to appellant to abide event.

O’Brien and Eollett, JJ., concurred.

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


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    In the Matter of the Application of The Manhattan Railway Company, Respondent, v. John L. Stroub, Appellant, Relative to Acquiring Title to Certain Real Property in the City and County of New York.

      Eminent domain — omission in a judgment to appoint commissioners — power to supply it — notice of appointment, and of first meeting.

    A failure to appoint commissioners, in a judgment rendered in proceedings for tlie condemnation of real property, as contemplated by section 3369 of tbe Code of Civil Procedure, may be supplied by the court, under the authority conferred by section 724 of that Code.
    The court has no power to shorten the eight days’ notice of the appointment of Commissioners and of the time and place of their first meeting, prescribed by said section 3369.
    Appeal by the defendant, John L. Stroub, from an order of the Supreme Court, made at the New York Special Term at Chambers and entered in the office of the clerk of the city and county of New York on the 25th day of February, 1893, appointing commissioners to ascertain the compensation to be made to the defendant in the above-entitled matter.

      Pdward Q. Perkins, for the appellant.
    • Alexander S. Lymcm, for the respondent.
   Van Brunt, P. J.:

Upon an examination of the sections of the Code under which this proceeding was taken, it will be noticed that the proceeding was before the court and not before a judge, and that by section 3369 it is provided what the judgment is to contain, which is to be entered pursuant to the direction of the court or referee before whom the issues have been tried. • This action provides that if the decision is in favor of the plaintiff, or if no answer has been interposed, and it appears from the petition that the plaintiff is entitled to the relief demanded, judgment shall be entered adjudging that the condemnation of the property described is necessary for the public uSe, and that the plaintiff is entitled to take and hold the property for the public use specified, upon.making compensation therefor, and that the court shall thereupon appoint three disinterested and competent freeholders, etc.

It is apparent from this language of the section that it was the intention of the Legislature that the court, by the judgment which was to be entered upon the decision of the court or referee, should appoint the commissioners, and also should by that judgment, fix the time and place for the first meeting of the commissioners. But if the court omitted, in the entering of the judgment, to do-any of these things in the judgment directed to be entered, the applicant is not without remedy, because, by section 3368 it is provided that the provisions of title 1 of chapter 8 of this act shall also apply to proceedings had under this title. Title 1 of chapter 8 relates to mistakes, omissions, defects and irregularities, and by-section /T2I of the Code, which is included in that title, the court may supply an omission to any proceeding, and where a proceeding-taken by a party fails to conform to a provision of this act the court may, in like manner and upon like terms, permit an amendment thereof to conform it to the provision.

Therefore, the court having failed to appoint the commissioners-by the judgment as contemplated by section 3369, such omission,, upon proper application and upon proper notice, may be supplied,, which is what was done in the case at bar.

The court also attempted to supply the other omission, viz., the fixing of the time and place for the first meeting of the commissioners. The order appointing the commissioners was dated February twenty-third, entered February twenty-fifth, and directs that the first meeting of the commissioners be held on February 28,, 1893 ; and by so doing did not give necessary time in order that the last clause of section 3369 could be applied, which provides that if a trial has been had, at least eight days’ notice of such appointment must be given to all defendants who have appeared • — ■ the appointment referred to being the appointment of the commissioners and of the time and place of the first hearing. The time fixed by this, 'clause of the section the court had no power to shorten.

We think, therefore, that the order appealed from should be-modified- by reversing that part of the order which fixed the time for the first meeting of the commissioners, with leave to apply at the Special Term for the supplying of the omission which the reversal ■of that portion of tbe order would leave, without costs to either party.

O’Brien and Follett, JJ., coneured.

Order modified as directed in opinion and as modified affirmed, without costs to either party.


author: Yan Brunt, P. J.:

text:
    Charles Banks, Plaintiff, v. The New York Club, Defendant.

      3toney loaned to a club — no time of repayment fixed — Statute of Limitations — evidence as to an agreement to give a bond.

    In an action brought against a club to recover money loaned to it, in which the Statute of. Limitations was interposed as a defense, it appeared that there was no agreement as to when the money was to be repaid, but evidence was given on the part of the. plaintiff that at a meeting of some persons interested in the club, but not shown to be authorized to bind the club in its corporate capacity, it was agreed that bonds should be issued for the amount of the loan, and it was stated that payment should not be asked for until the club was able to pay.
    Held, that the evidence did not establish an agreement by the lender postponing the time of demand .of payment, nor did it establish an agreement by the club that a bond should be delivered, and, hence, did not support the claim of the plaintiff that the debt arose upon a sealed instrument.
    Motion by the plaintiff, Charles Banks, for a new trial, upon ■exceptions directed to be heard, in the first instance, at General Term, by an order of the Supreme Court, made on the dismissal of the complaint at the New York Circuit, on the 14th day of December, 1892.

      J. O. Colemam,, for the plaintiff.

      Ira D. Warren, for the defendant.
   Yan Brunt, P. J.:

The court is unable to see any reason why the exceptions in this ■case were ordered to be heard in tile first instance at General Term, there being no difficult or doubtful questions involved in the ■complaint. ’

This action is brought for loans of money made between the 1st ■of February, 18J5, and "the 14th of December, 187J, and was commenced on the 12th of December, 1890. The plea, amongst others, of the Statute of Limitations, was interposed. The evidence of the plaintiff tended to show the loan of the money. There was no' agreement as to when it was to be paid, although there was evidence upon the part of the plaintiff that it was understood and agreed, at a meeting of some persons interested in the defendant, that bonds should be issued for the amount of the loan, and that the $4,500 involved in this action was loaned on that understanding. But. there is no evidence that any of these parties who entered into that agreement were authorized to bind the defendant in its corporate capacity, or that it was ever ratified by the defendant, even if such an agreement could possibly have prevented the statute from running.

It was claimed upon the part of the plaintiff that it was agreed that the club was not to pay until it was able to do so, and that it was not so able until within six years from the date of the trial; but an examination of that evidence shows that at this meeting of these persons interested in the club, whether officers of the club or not the record does not show (it certainly was not a meeting of the managers of the club), it was stated that the claim should not be asked for until the club was in such a condition. This clearly was no agreement at all. It seems to have been some loose talk among persons who were interested in the club. The idea which is advanced, that if a bond was agreed to be delivered, which is not established, therefore, the bond being a sealed instrument, the debt arose upon a sealed instrument, has no foundation whatever.

It is claimed that error was committed by the court in the exclusion and admission of evidence which may have either prejudiced or influenced the jury. But it is difficult to see how any testimony which was only intended for the jury can affect the final ruling of the court, when the ease was never submitted to the jury, and, therefore, there was no jury to be influenced.

The exceptions should be overruled and judgment ordered for the defendant, with costs.

O’Brien and Follett, JJ., concurred.

Exceptions overruled and judgment ordered for the defendant, with costs.


author: Per Curiam :

text:
    Evelyn M. Trost, Appellant, v. Charles J. Hinman, Respondent.

      Promissory note —presumption of ownership arising from, possession by the payee, notwithstanding an assignment by him of dll claims.

    The introduction in evidence, by the defendant upon the trial of an action brought upon a non negotiable promissory note by the payee against the maker, of an assignment to a third party, signed by the plaintiff, of all the plaintiff’s claims and demands against the defendant and another, but not mentioning the note in suit, without evidence of the delivery of the assignment or of the note to the person named as assignee in such assignment, is insufficient to overcome the presumption of ownership arising from the plaintiffs possession of the note at the trial.
    Appeal by tlie plaintiff, Evelyn M. Trost, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of the city and county of New York on tbe 25 tb day of January, 1893, upon a decision of tbe court at tbe New York Gn’cuit dismissing tbe complaint.

      Alexander Tham, for tbe appellant.

      Horace G-rrnes, for tbe respondent.
   Per Curiam :

This action was begun March 6, 1891, to recover on an instrument of which tbe following is a copy:

May 2, 1887.

On demand, I promise to pay Evelyn M. Trost tbe sum of three hundred dollars ($300).

“ J C. HINMAN.”

It is alleged in tbe complaint that tbe instrument at its date was made and delivered to tbe plaintiff, that payment thereof had been duly demanded, and that no part thereof bad been paid. These allegations are not denied in tbe answer, but it is averred therein, as a sole defense, that tbe note bad been sold and assigned to John Devlin, who when the action was begun, was tbe lawful owner thereof and tbe real party in interest.

To establish this defense, tbe defendant introduced in evidence a written instrument dated June 21,1890, and signed by tbe plaintiff, by which in terms she assigned to John Devlin all her “ right, title and interest in and to any and all claims and demands I have against Jabez O. Slote and diaries J. Hinman, or either or both of them, at the date of these presents.” No evidence tending to show a delivery of the instrument or of the note to John Devlin was given, nor was the note mentioned in the assignment.

The mere proof that the plaintiff signed this assignment, without evidence of its delivery, or the delivery of the note, to John Devlin, was insufficient to overcome the presumption of ownership arising from plaintiff’s possession of the note at the trial.

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

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

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

       Sic.


author:
Van Brunt, P. J.:
      O’Brien, J.:

text:
    The Mercantile National Bank of the City of New York, Respondent, v. The Corn Exchange Bank, Appellant.

      Extension of time to serve a complaint — Statute of Limitations.

    The courts have' no authority to enlarge the time for service of a complain., indefinitely, where the effect will he to extend the operation of the Statute of Limitations (O’Brien, J., dissenting).
    Appeal by the defendant, the Corn Exchange Bank, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 9th day of February, 1893, extending the nlaintiff’s time to serve a complaint.
    The order appealed from is as follows:

      “ Ordered, that the plaintiff’s time to serve a complaint in this action be, and the same hereby is, extended until twenty days after the entry of an order of the General Term of the Supreme Court upon the appeal taken by the plaintiff in the action in the Supreme Court, of John E. Phillips, as receiver of the National Bank of Sumter, against the Mercantile National Bank of the City of New York; and in case said decision of the General Term shall be an affirmance of the judgment appealed from, and an appeal shall be taken therefrom by the plaintiff therein, then the time for the plaintiff to serve a complaint shall be, and the same hereby is, further extended until the decision of the Court of Appeals upon such appeal, and until twenty days after the entry of a judgment in the Supreme Court upon the remittitur from the Court of Appeals to the Supreme Court.”

      J. M. Bowers, for the appellant.

      8. B. Brownell, for the respondent.
   Van Brunt, P. J.:

It seems to be conceded that the plaintiff at the present time has no cause of action whatever as against the defendant; and this action was brought in order that at some future time, in case it should be determined that a cause of action did exist, the Statute of Limitations should not have run against such cause of action.

We are not aware of any authority upon the part of the court to extend the operation of the Statute of Limitations.

It is true that, under the Code, the court or a judge may make an order enlarging the time within which a proceeding in an action,, after its commencement, must be commenced. But it is apparent, that this power was not given to, the court for the purpose of defeating the provisions of law in,respect to the limitations of actions.

In this case some action has been commenced, but nobody knows, what action, or upon what claim, or founded upon what facts. And the result of such indefinite extension would be to enable the plaintiff to avail itself of the cover of this summons served, to prevent, the statute from running against any claim for any canse which it might have against the defendant. By not serving the complaint,, such a result would he produced, and we think this is an abuse of’ the discretion which is confided in the court to extend the time within which a proceeding in an action may be taken.

The order should be reversed, with ten dollars costs and disbursements, and the plaintiff required to serve his complaint within a. reasonable time.

Pollbtt, J., concurred.

O’Brien, J.:

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

Order reversed, with ten dollars costs and disbursements, and the plaintiff required to serve his complaint within a reasonable time.


text:
    In the Matter of the Final Accounting of The State Trust Company, as Trustee of the Estate of Augustus M. Halsted and Avery D. Putnam, Respondent, v. S. F., F. H. and H. Cowdrey and L. L. Van Allen, Appellants.

      Vinal accounting by a trustee — costs out of the estate — interest on costs.

    On the final accounting of the trustee of an assigned estate, where the account was not contested, hut was allowed as presented, no costs were allowed; the attorney who appeared for the trustee appealed personally from so much of the order as refused costs on the accounting, hut the trustee did not appeal.

      Held, that as it seemed that the refusal of costs was proper, and, further, as the trustee had not appealed, no question could he raised at General Term on the refusal to allow the trustee costs.
    It appeared, on such final accounting, that a judgment which had been entered some twenty-four years before, in an action brought to remove an assignee of the estate, had directed that the costs of the attorneys for the parties to such action be paid out of the estate, but it did not state the amount of such costs, nor was the amount thereof ever inserted therein, although it was fixed by an order in the action.

      Held, that, technically, a judgment for costs had not been entered, and that, therefore, the statute which gives interest on judgments for costs did not apply; and that, as it appeared that interest on such costs, if allowed, would absorb the entire estate and leave nothing for creditors, and that the costs, without interest, afforded ample compensation to the attorneys, their claim lot interest on the costs was properly disallowed on the final accounting.
    Appeal by S. F., F. II. and H. Cowdrey and L. L. Yan Allen, in person, from so much of an order of the Supreme Court, made at the New York Special Term on the final accounting herein, and entered in the office of the clerk of the city and county of New York on the 18th day of January, 1893, as orders, adjudges and decrees that the referee’s report herein, in so far as it reports that interest on the costs of the attorneys in the action of Asa Stevens and others against Alfred C. Smith, Jr., and others, should be paid by the said trustee as therein specified, is disallowed; and by the said S. F., F. FI. and FL Cowdrey from so so much of said order as orders, adjudges and decrees that no costs in this proceeding be taxed, and also from so much of said order as orders, adjudges and decrees that the said trustee pay without interest to S. F., F. FL and FI. Cowdrey the amount of the costs and allowance awarded to the plaintiffs in said action thereinbefore mentioned; and by the said L. L. Yan Allen from so much of said order as orders, adjudges and decrees that the said trustee pay without interest to L. L. Yan Allen the amount of the costs and allowance awarded to the defendants in said action; and by each of them from so much of said order as orders, adjudges and decrees that, after making such payments, if any part of such moneys remain, the same be distributed to and among the creditors who have presented and proved their claims according to law in proportion to the several amounts thereof.
    The appellants are attorneys at law, and were the attorneys for the plaintiffs and defendant respectively, in an action which was brought in the year 1869, by Asa Stevens and others, to remove an assignee for the benefit of creditors of the estate, which is the subject of the present proceeding. Judgment in that action was filed April 26, 1869, and directed that out of the funds of the estate thereafter collected, there should be paid “tothe attorneys for-the parties in this action their costs in this action, and also such sum as may be awarded to them for an extra allowance.” Thereafter, and on December 20, 1869, an order was made in said action, which .directed the payment to the respective attorneys, “ in the manner provided for in the said judgment,” of certain specified sums for their costs and extra allowances. The appellants claimed interest on these sums, by force of section 1211 of the Code of Civil Procedure, which provides that a judgment for a sum of money, or which directs the payment, of money, shall bear interest from the time of its entry. The Messrs. Cowdrey conducted, on behalf of the trustee, the State Trust Company, the proceedings for a final accounting in which the order now appealed from was made.

      Thomas Allison, for the appellants.

      J. Warren Lawton, for the respondent.
   Per Curiam :

In the account presented by the trust company, it charges itself with $2,672.93, moneys collected, and credits itself with $374.85, paid out for legal services and expenses, and $131.39, for its commissions, leaving $2,121.69. The account so presented was not contested before the referee, or at Special Term, and it was allowed as made out. The trust company made no claim before the referee, or at Special Term, for the costs of the accounting, and we are unable to see how any could have been incurred, as its account was allowed as rendered, without contest. Besides the trust company has not appealed from the order of the Special Term, and no question can be raised in this com;t on the refusal to allow it costs on the final accounting.

By an order, but not by the judgment, entered December 20, 1869, in the action for the removal of the assignee, the attorneys for the plaintiffs were allowed $706.31 costs, and the attorneys for the defendants, $518 costs. The interest on the costs of the plaintiffs’ attorneys amounted to $1,022.45, and on the costs of the defendants’ attorneys to $749.86. The Special Term refused to allow interest on the costs of the attorneys, and they appeal from that part of the order.

Whether interest should be allowed is the only question before the court. If it is allowed, the claims of the attorneys will exceed by $874.93 the amount in the hands of the trust company; but if interest is not allowed, there will be left $897.38 for distribution among the creditors.

It is urged that the statute gives interest on a judgment for costs. But the answer to this is, that no judgment was entered in this case for a fixed sum for costs. The costs might have been included in the judgment when originally entered, or they might have been subsequently taxed and inserted therein. But neither course was taken, and so, technically, a judgment for costs was not entered.

Believing that the compensation awarded to the attorneys is ample for the services rendered, without the addition of interest, and that something should be left for the creditors, we think the order should be affirmed, with costs.

Present — Yah Brunt, P. L, O’Brien and Pollett, JJ.

Order affirmed, with costs.


author: O’Brien, J.:

text:
    Francis Higgins, as Receiver of the North River Bank, in the City of New York, Respondent, v. Neil O’Donnell and Another, Composing the Firm of N. & H. O’Donnell, Appellants, Impleaded with Another.

      Accommodation note — agreement of payee to pay it — sufficiency of answer alleging it — liability of the maker to the hank discounting it.

    Allegations in an answer, by tbe maker of a promissory note, that the note was an accommodation note given to the payee at the request of the bank by which it was discounted, and that the note was given on the distinct understanding that the payee should take it up and pay it at maturity, but not stating that such understanding was had with the bank, or that the bank engaged with the maker that he should not incur any liability on the note, do not constitute a defense to an action on the note brought by the bank against the maker. Gaofeld National Bank v. Colwell (57 Hun, 169), distinguished.
    Appeal by the defendants, Neil O’Donnell and Hugh O’Donnell, composing the firm of N. & H. O’Donnell, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New-York, on the 19th day of October, 1892, upon a verdict in favor of the plaintiff, rendered at the New York Circuit by direction of the court upon the pleadings.

      E. L. (Jollier, for the appellants.

      Durnim, <& Iiend/rick, for the respondent.
   O’Brien, J.:

The action was brought to recover upon promissory notes made by the defendants to the order of one Thomas Bracken, and by him indorsed and delivered to the bank. The answer admits the making of the notes, but for a defense alleges that “ said notes were made by request of the defendant, Thomas Bracken, the payee mentioned therein, without consideration and solely for his accommodation, at the request and suggestion of the North Biver Bank in the city of New York, and not otherwise, as the defendants are informed and verily believe. That the notes in question are not the original notes, bat notes given after many renewals, with the distinct understanding that the said Thomas Bracken, the payee therein named, should take up and pay the same at maturity, as the defendants are informed •and verily believe.”

It is insisted that the court erred in directing a verdict in plaintiff’s favor upon the pleadings, and reference is made to the case of Garfield Nat. Bank v. Colwell (57 Hun, 169) in support of this contention. That case is authority for the proposition that “ where, at the time that a note is discounted, there is a distinct understanding between the maker of the note and the payee, which is stated to the bank at which it is discounted, that the maker should incur no liability by the signing of the note, he will not be held liable thereon to the bank which has discounted it; ” that “ such paper is not mere accommodation paper; and is, under such circumstances, unenforceable against the maker thereof.”

The distinction between the defenses set out in that case and in this is marked. In the Garfield National Bank case, the defense .and proof were, that the note was discounted by the bank under an agreement that the makers should not incur any liability upon the note; whereas the allegation here is that the note was made for the accommodation of Bracken at the request of the North Biver Bank. It is true there is a further allegation that there was a distinct understanding that the payee should take up and pay the same at maturity, but by and between whom such understanding was arrived at or made is not alleged, and it cannot be assumed, in the absence of any allegation to that effect, to have been made with the bank. -

The construction of the answer is susceptible of the conclusion that, so far as these defendants are concerned, it was a pure accommodation note given to Bracken, under an understanding with the latter that he was to take it up. But this is very different from an allegation — which appeared in the Garfield Bank case — that there was a distinct agreement with the bank that the makers were to incur no liability whatever upon the notes. The fact that they were mere accommodation makers cannot relieve these defendants from liability, as shown by the very case relied upon of the Garñeld Bank, •which holds, that the mere fact that it was accommodation paper would in no way affect the right to recover, because the giving of the note as an accommodation, if no recovery could be had upon it by the holder of the note, would not be an accommodation to anybody, because nobody could use it.” It may well be that the bank knew that it was accommodation paper made by these defendants for the benefit of Bracken, but this in no way prevented their being liable thereon.

The allegation, therefore, that it was an accommodation note given to Bracken at the request of the North River Bank does not constitute a defense, nor the further allegation that the understanding was that Bracken should pay the same at maturity. Here there is an absence of an allegation • — which was the turning point in the G-curfield Bank case — that the bank would not look to the makers, or agree with such makers that they were not to incur any liability Upon the note. There is here not even an allegation that the bank had any knowledge of the understanding, set up by way of defense, that the notes were to be paid by Bracken at maturity.

We think the disposition made by the trial judge was right and-that the judgment appealed from should be affirmed, with costs and disbursements.

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

Judgment affirmed, with costs and disbursements.


text:
    Johanna Moskovitz and Another, as Administrators, etc., of Ernest Moskovitz, Deceased, Respondents, v. Charles Lighte and Another, Appellants.

      Negligence of the driver of horses — injury to a child on a crosswalk — prima facie case — amount of damages — age of the recipient of damages.

    On the trial of an action brought to recover damages for the death of a child four years old, a witness for the plaintiff testified that he saw the child walking across the street on the crosswalk and at the same time saw the defendants’ truck and horses, some thirty or forty ffeet from the child, coming towards him slowly, at an ordinary trot, with no vehicle or other obstruction intervening; that the feet of the horses caused the child to fall, with a scream, and that the driver then stopped his horses.

      .Held, that this evidence, while slight and unsatisfactory, was susceptible of the inference that if the driver had been sufficiently vigilant and careful he would have seen the child in time to avoid injuring him, and that it, therefore, made out a prima feme case for the jury upon the question of the defendants’ negligence.
    A judgment will not be reversed on the ground that the verdict is against the weight of evidence, merely because the General Term is of opinion that if it had to decide the question of fact it might take a different view and reach another conclusion; it is only where the verdict is without evidence or so decidedly against the weight of evidence as to indicate partiality, corruption or gross ignorance that the General Term will disturb it.
    A verdict for §2,000 damages for the death of a child four years old, through negligence, recovered by the mother, a widow with three other children, the oldest but thirteen years of age, is not excessive.
    The mother, the person for whose benefit the damages were sought to be recovered, was produced as a witness and fully examined and cross-examined, and her circumstances and condition in life were proved. -

      Held, that the jury were at liberty to infer her age from her appearance and from the fact that she had young children.
    Appeal by the defendants, Charles Lighte and "William Lighte, from a judgment of the Supreme Court, entered in the office of the ©lerk of the city and county of New York,- on the 31st day of October, 1892, in favor of the plaintiffs, upon a verdict rendered at the New York Circuit and from an order denying the defendants’motion, made upon the minutes, to set aside the verdict and for a new trial, entered in the said clerk’s office on the 15th day of November, 1892.

      J. Aspinwall Hodge, Jr., for the appellants.

      Edgcur G. Hathcm, for the respondents.
   O’Brien, J.:

This action was brought to recover damages for the negligence of the defendants’ servants in causing the death of plaintiffs’ intestate. At the time of his death the decedent was four years of age and lived with his mother, who was a widow. On the morning of the accident he was playing in his mother’s room, but during the latter’s absence to fetch water the child escaped and got into the street, where it met with the injuries resulting in its death. The age of the child and the circumstances under which it got upon the street, presented a question for the jury as to whether the negligence of the child itself or that of the mother, assuming upon the facts that it was imputable to the child, contributed to the death.

The more serious questions are, did the plaintiffs make out a prima facie case of negligence on the part of defendants’ servants, and, assuming they did, was not the weight of evidence upon the whole case with the defendants, upon the question of such negligence 2

All the testimony presented on the part of the plaintiffs being that of one witness, is so brief that we can give a complete summary of it. Blumenfelt, called on behalf of plaintiffs, and who was examined through an official interpreter, testified as follows: That on the 9th of May, 1892, when the accident occurred, “ I was standing at Avenue A, corner of First street, at the southwest corner; I saw that the wagon of Lighte Bros, came along from Houston street to Avenue A ; it came from Houston street, east side, to the west side of Avenue A; I first saw the truck when it came into Avenue A; the horses were only going ordinarily like, slowly, not very quickly; they were in a trot; the horses, when I first saw them, were .about fifty or sixty feet away from me. I did not see any wagon or other obstruction between me and this truck; I first saw this little boy when he was on the crosswalk between the butcher shop and music store; he was coming from the meat market to the music store; when I first saw the'boy on the crosswalk this truck was about thirty feet, perhaps thirty-five feet, away, and the boy was about thirty-five or forty feet from the truck. * * * He (the boy) did not go quickly; he was walking; I saw that the boy fell from the first, horse of the truck — fell in front of the horse; the feet of the horse made him fall. When he fell he was over the tracks near the corner of First street.” He further testified that there was no truck, carriage or other wagon in front of defendants’ truck before it struck the boy to prevent the witness seeing the accident. And further, that he heard a scream, and it was after he heard this scream that the driver stopped his horses.

While this evidence is very slight and unsatisfactory, we cannot, as a matter of law, in the face of the cases of Birkett v. Knickerbocker Ice Co. (110 N. Y. 506), Murphy v. Orr (96 id. 14), and Moebus v. Hermann (108 id. 349), hold that this testimony did not present & prima facie case for the jury upon the question of ■defendants’ negligence.

Murphy v. Orr was a case like this, of a child between three and four years of age, while on the crosswalk, and passing over, being knocked down by one of the horses of a team attached to the defendant’s truck, and the testimony in that case showing that the horses were moving at a walk, it was held that the trial judge committed no error in charging the jury to say whether, under all the circumstances surrounding the transaction, the driver was negligent in not discovering the child in time to prevent the injury; and in the course of the opinion, Danforth, J., says: “ Whoever drives horses along the streets of a city is bound to anticipate that travelers •on foot may be at the crossing, and miist take reasonable care not to injure them. He is negligent whenever he fails to look out for them, or when he sees and does not, so far as in his power, avoid them. There was evidence in this case fairly leading to either of these conclusions in regard to the driver’s conduct. The day was clear and bright, the street was unobstructed, the horses, quietly moving on a walk, were completely under his control, and, from his elevated seat, he could, as is conceded, see a block away ’ and ‘ all around in front and on both sides.’ ”

This view as to the duty devolving upon drivers of trucks upon the public streets was enforced in the case’ of Moebus v. Hermann (supra), which was a like action to recover damages for personal injuries received by a boy about seven years of age, who, when crossing a street in the city of Brooklyn, was struck, knocked down and injured by a horse belonging to defendant, attached to his truck, and driven by his servant. The additional fact appeared that the injury was received while the boy was attempting to cross the street, not at the crosswalk, but at another point. And it was therein held (head-note): “A person on foot, desiring to cross a city street, has a right to cross, not only at the crosswalk, but wherever he pleases; and one driving horses upon the street is bound to be watchful at all points, as well as at the crossings, so as not to injure persons crossing. If, therefore, through the omission of a servant engaged in the business of and driving the horse of his master, to perform this duty, he does not see a person crossing at a point where there is no crossWalk, or, if seeing him, he fails to stop the horse in time, when with proper care, he might have done so, and the latter is injured, without fault or negligence on his part, the master is liable for the-damage.”

The principle enunciated in these two cases was again enforced in Birkett v. Knickerbocker Ice Co. (supra), which was a case of a girl four years and a half old, being killed by horses attached to the-defendant’s ice wagon, which were driven against her at a street crossing in the city of Brooklyn. This upon many of the questions-here involved is an instructive case, and is to us a seeming authority upon the question of the sufficiency of plaintiffs’ testimony as to-making out a ¡prima facie case, and upon the rule to be applied in determining what degree of care is to be exacted of a child of tender years. In the opinion it is said: If the intestate had been an adult, we think the evidence would have justified the claim of the defendant that her own negligence contributed to the injury. But she was non suijtoris and personal negligence could not be imputed to her. It is, however, contended that she was so young that her parents were guilty of negligence in permitting her to go into the streets unattended. The intestate - resided with her parents in a thickly-populated neighborhood, and there was no inclosed space around the house for children to play, and plaintiff’s children were permitted to play upon the sidewalk near his house. * * * It cannot be said that it was, as a matter of law, under the circumstances proved, negligence for the parents to permit her to go on the sidewalk to play, and whether it was or not, was a question for the determination of the jury.”

And again, in the opinion, it is said — and this bears upon the question we are discussing, as to whether the plaintiffs here made out a prima facie case: “¥e are also of opinion that there was no error in submitting the question of the negligence of the defendant’s driver to the jury. His wagon was heavily loaded, and he was driving upon a descending grade. There was apparently nothing to distract his attention, and it was his duty to be vigilant to see pedestrians in the street, and particularly at street crossings, so as not to injure them. 'While we do not think this branch of the plaintiff’s case is free from doubt, we are unable to say that the jury could not properly find that if the driver had been sufficiently vigilant and careful he would have seen the child in time to avoid injuring her.”

So we say here, the plaintiffs’ testimony is unsatisfactory and by no means free from doubt, but it is susceptible of the inference that if the driver had been “ sufficiently vigilant and careful he would have seen the child in time to avoid injuring him.”

The evidence of the plaintiffs being, upon the authority of these cases, sufficient to make out a aprima facie case, the question still remains as to whether or not, upon the whole case, considering the number of witnesses produced by defendants, there was not a clear preponderance in defendants’ favor upon the question of negligence sufficient to justify a setting aside of the verdict. It must be remembered, however, that a judgment will not be reversed on the ground that the verdict is against the weight of evidence, merely because tins court is of opinion that if it had to decide the question of fact it might take a different view and reach another conclusion, but that it is only where the verdict is without evidence, or so decidedly against the weight of evidence, as to indicate partiality, corruption or gross ignorance, that this court will disturb the verdict.

Outside of the driver and his assistant, three disinterested witnesses were produced for defendants, who tended to support the version given by the driver, that the death was caused by the child’s running from the sidewalk across the street and into the defendants’ horses, and that the driver stopped as soon as under the circumstances it was possible. It is argued that these witnesses in no way contradicted the witness produced by the plaintiffs, but that they supplemented and reconciled his testimony to a version consistent with the absence of negligence upon the part of the defendants’ servants. While there is much force in this suggestion, and while the case upon all the facts is a close one as to whether or not the motion to dismiss the complaint should not have been granted, we think that, upon the authorities already cited, it was a question upon the entire testimony to be presented upon both branches to a jury; and a piece of evidence that is to some extent important, given by one of the disinterested witnesses for the defendants, might, if the jury gave it sufficient weight, have explained the failure of the defendants’ driver to observe the child in time to avoid the injury. The testimony of this witness, who was a woman, was that “ there were two men on the wagon, one with light hair and one with black, and they were driving ahead. They were talkvng together. They did not look at no one at all until after I hollered.”

Upon a fair and impartial charge, therefore, the questions having been presented to the jury, their verdict is conclusive.

The amount awarded by way of damages, namely, $2,000, is large, but not so excessive as to justify us in reversing the judgment upon this ground. As said in Lockwood v. N. Y., L. E. & W. R. R. Co. (98 N. Y. 523) : “ The courts have found it impossible to lay down any definite guide for the jury in estimating damages under the act in question. * * * In but few cases arising under this act is the plaintiff able to show direct, specific pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character, qualities, capacity and condition of the deceased, and in the age, sex, circumstances and condition of the next of kin. The proof may be unsatisfactory and the damages may be quite uncertain and contingent. Yet the jurors in each case must take the elements thus furnished and make the best estimate of damages they can.” Here the evidence showed the condition and circumstances of the mother, who was the sole next of kin; and she testified as to the facts connected with her own affairs, that she was a widow, the mother of four children, the eldest but thirteen, and the youngest, the decedent, but four years of age. And this testimony was presented for the consideration of the jury. It is insisted, however, that in addition to condition and circumstances, the age of the mother should have been given.

In Carpenter v. Buffalo, N. Y. & P. R. R. Co. (38 Hun, 120), the following appears in the opinion: “ One element in the sources from which loss to those, for whose benefit a recovery in such case is had, is to be ascertained, is their age, condition and circumstances. There is an entire absence of evidence in any of those respects of the father of the deceased. That he was living is the only fact which can be assumed in relation to his condition upon the evidence.” This case, it is contended by the appellant, is conclusive of the view that the failure to prove the age of the mother was fatal to any recovery b'eyond nominal damages. We think, however, that, taking the very language which we have quoted from the opinion in the case relied upon by him, he overstates the rule in his own favor. .That case does not go to the extent of holding that the mere failure to prove the age is fatal to any recovery. In that case there was no proof of age, condition or circumstances and, as therein stated, there was no evidence before the jury, except the single fact that the father, whose loss was to be determined and compensated in damages under the statute, was alive. Here, as shown, the circumstances and condition in life of the mother were proved. She was produced as a witness and examined before the jury, who, independently of the information derived from her testimony, were in a position to determine, without any great danger of being seriously misled, about her age. Had she not been produced, there would be much force in the argument of appellant; but being fully examined and cross-examined by counsel upon the trial, and proof being furnished that she had young children, this, together with her appearance, was evidence from which the jury were at liberty to infer her age. And even though she had been much further advanced in years than the jury would have been justified in concluding from the circumstance of her having young children, the award could not, under the rules for estimating damages, be deemed excessive, and the judgment on this account should not be disturbed.

We are of opinion, therefore, that the judgment should be affirmed, with costs and disbursements.

Yan Bkunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs and disbursements.


author: Follett, J.:

text:
    Mary Reid, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, and The City of Brooklyn, Appellants.

      The New York and Brooklyn bridge — liability of the cities of New Ym'k and Brooklyn for claims aca'ued prior to the passage of the act, §7 of chapter 128 of 1891.
    Section 7 oí chapter 128 of the Laws of 1891, which provides that neither “ the city of New York nor the city of Brooklyn shall he liable hereafter for any matter or thing or claim or demand, growing out of the New York and Brooklyn bridge,” and that the trustees of the bridge “ shall succeed to all liabilities of the two cities growing out of the bridge,” is not retroactive, and does not relieve the cities from liability for a personal injury to a passenger on a bridge car, resulting from negligence, occurring prior to the passage of the act.
    Appeal by the defendants, tlie Mayor, Aldermen and Commonalty of the City of New York, and the City of Brooklyn, by separate “notices of appeal, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York, on the 16th day of May, 1892, in favor of the plaintiff, upon a verdict rendered at the New York Circuit, and from an order entered in said clerk’s office on the 19th day of May, 1892, denying the defendants’ motion for a new trial made on the minutes.
    The action was brought to recover damages for a personal injury received by the plaintiff when alighting, as a passenger, from a railroad car operated by the defendants upon the New York and Brooklyn bridge, and alleged to have been caused by the negligence of the defendants and their servants.

      Terence Farley and Theodore CormoVy, for the appellants.

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

On the 17th of February, 1890, the defendants undertook to carry the plaintiff in a car from New York to Brooklyn, via the New York and Brooklyn bridge. When the car reached Brooklyn, it was stopped for the purpose of discharging the passengers. As the plaintiff was stepping from the car to the platform of tho bridge, or immediately after she had stepped upon tho platform, she fell, breaking her left arm near the wrist. These facts were undisputed on the trial. The plaintiff alleged in her complaint and testified on the trial that as she was about stepping from the car,' it was suddenly started and she was- thrown on to the platform of the bridge, and thereby injured. She was corroborated to some- extent by an acquaintance who left the car immediately before her and who, from her position, was able to see part, but not all, that occurred. The plaintiff and her companion were the last or nearly the last persons who left the car, and both testified that the conductor told them to hurry off or he would start the car, and the plaintiff further testified that the car started just as she was in the act of stepping off from it to the platform. The conductor, who was sworn for the defendants, testified, “ I saw Miss Reid, this lady, get off, and as the train was in motion I called to her not to get off, and I jumped •over and caught her by the arm to prevent her from falling. I stepped off on the platform with her and saw that she did not fall, then got back on my train again. I was the only conductor that was •on that car at the time. I did not call out to Miss Reid to get off the train or I would start it, or .any words to that effect. * * * Miss Reid did not fall upon the platform as she alighted from the car.”

Other witnesses sworn in behalf of the defendants testified that the plaintiff’s fall was caused by her stumbling against a drunken man. The defendants’ witnesses denied that the conductor directed her to hurry off, and also denied that she fell in the act of alighting. They testified that she fell just as she stepped upon the platform, but that it was caused by contact with an intoxicated person. Whether her fall was caused by the motion of the car or by a collision with a drunken person, was a question of fact which was ■fairly submitted to the jury and they found for the plaintiff upon -evidence sufficient to sustain the verdict. Authorities are cited, that a jury is not bound to believe an interested witness; this is true, but they may, and they did in this case. The plaintiff’s testimony was, in some of its important features, corroborated by a disinterested witness. The evidence is that the injuries sustained were severe, their consequences permanent, and the verdict for $3,000 should not be set aside nor reduced as excessive. The evidence does not show that the motion of the car was so rapid that it was negligence on the ■part of the plaintiff to attempt to alight under the circumstances testified to by her and by her companion. The question of contributory negligence was for the jury.

The cases cited (of which Hunter v. C. & S. V. R. Co., 112 N. Y. 371; 126 id. 18, is a type) holding that it is negligences^ sefor a person to get on or off a moving car propelled by steam at given rates of speed, have po application to the facts of this case.

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

§7. “Neither the mayor, aldermen and commonalty of the city of New York, nor the city of Brooklyn, shall be liable hereafter for any matter or any thing, or claim, or demand growing out of the New York and Brooklyn bridge. The trustees of the New York and Brooklyn bridge shall succeed to all liabilities of the two cities growing out of the bridge. And all claims and demands growing out of the bridge upon contracts and for negligences, and for wrongs which heretobefore might be prosecuted against the two cities or either of them, shall be prosecuted against the trustees of the New York and Brooklyn bridge, and they shall be liable therefor in their corporate capacity, and they shall sue and defend all actions and proceedings in and by their corporate name, the trustees of the New York and Brooklyn bridge, and shall pay all damages and judgments out of the moneys they receive for tolls, fares and rents.”

§ 8. “ No action upon a contract, or for negligence or a wrong shall be prosecuted or maintained against the trustees, unless the claim or demand shall have been presented to the trustees in writing, at least, thirty days before the commencement of the action or special proceeding and within six months after the cause of the action accrued, nor unless these facts appear in the complaint. The residence or place of business of the claimant shall be stated in the= notice. * * * ”

§ 10. “ An action against the trustees to recover for a personal injury resulting from negligence or a wrong must be commeneed. within two years after the cause of action accrued.”

In tlie view; we take of this act, it is not necessary to consider* the constitutionality of a statute relieving a corporation from a. liability already accrued, and providing that it shall be discharged, by some other corporation or body. It is a well-settled rule of construction that a statute is not to be deemed retroactive in its effect; unless it clearly appears that it was the intention of the law-making; power that it should relate to past transactions. (People ex rel. Newcomb v. McCall, 94 N. Y. 581.)

Section 8 of chapter 128, Laws of 1891, above quoted, provides that notice of claims for damages must be presented to the trustees of the bridge within six months after the cause of action arose. This cause of action arose February 11, 1890, more than thirteen months before the chapter referred to was enacted, so that it was impossible for the plaintiff to give a notice in time to enable her to maintain an action against the trusteees. If the defendant’s construction of this act is correct, that it is retroactive, it would have the effect of relieving the cities from liability without providing any means of redress for injuries already sustained. We think it is clear from the terms of the statute that such was not its effect, and that no such result was intended by the Legislature. Had the. Legislature intended that the cities should be exempted from liabilities already accrued and those liabilities imposed on the trustees, a provision to that effect would have been inserted in the statute.. There is no provision of law by which the plaintiff in this action could have had the trustees of the bridge substituted in the place of' the cities as parties defendant, without the consent of the trustees,, which apparently lias not been given. At least neither the defendants nor the trustees have moved that the latter be substituted as defendants in the place of the cities.

The judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


author: Eollett, J.:

text:
    George Lewis Prentiss, as General Guardian of the Estate of Marie Carleton, an Infant, Respondent, v. John S. Weatherly and Another, as Executors, etc., of William H. Bowden, Deceased, Appellants, Impleaded with William T. Ward and James M. Baldwin.

      Surrogate’s decree directing payment by an administrator to a general guardian— tlie general guardian may maintain an action therefor on the administrator’s bond — appointment of a general guardian — record evidence — citation.

    When a surrogate’s decree, made on the final settlement of an administrator’s account, directs the administrator to pay over the amount in his hands to a general guardian, upon the guardian’s giving the security required by section 2746 of the Code of Civil Procedure, the general guardian becomes, on executing the required bond, the proper person to maintain an action oh the administrator’s bond to enforce payment under the decree (§ 2607, Code of Civil Pro■cedure); and such action cannot he maintained by a guardian ad litem, nor is there any occasion for the appointment of a new administrator to bring such action, nor is the leave of the surrogate required to enable the general guardian to bring it.
    'The mere fact that a general guardian’s bond, as printed in the papers on appeal, does not show an approval by the surrogate, or an acknowledgment, does not prove that the bond was not approved or acknowledged ; the original bond, being a record, can he received in evidence on the appeal for the purpose of sustaining a judgment.
    When an administrator has been removed after the decedent’s estate has been fully administered, the surrogate may thereafter finally settle such administrator’s account, without appointing a new administrator.
    ’The mere fact that the issuing of a citation to the former general guardian on an application for the appointment of a new general guardian is not recited in the letters of the new guardian is not evidence that a citation was not issued and •served.
    .Appeal taken by the defendant, William H. Bowden, since ■¡deceased, and prosecuted by bis executors, John S. Weatherly and another, from a judgment of tbe Supreme Court, entered in the office of the clerk of tbe city and county of New York, on tbe 26th ■day of May, 1892, .on a verdict in favor of the plaintiff, rendered at tbe New York Circuit by direction of the court, and from an order •denying a motion for a new trial, made on tlie minutes, and •entered in said clerk’s office on tlie 24th day of May, 1892.
    August 18, 1885, William Carleton died intestate, leaving Marie Carleton, a daughter aged five years February 4, 1885, his sole heir and next of kin. June 8, 1886, letters of administration on his estate were duly granted by the Surrogate’s Court of the city and county of New York, to William T. Ward, who afterwards, with James M. Baldwin and William H. Bowden, executed and filed the usual administrators’ bond. On the same date, June 8, 1886, said Ward was duly appointed by said Surrogate’s Court the general guardian of the estate of said Marie Carleton. Ward entered upon the discharge of his duties as administrator and as guardian and continued until June 19, 1890, when he was removed from both positions by said court. On the 9th of March, 1891, George L., Prentiss, the plaintiff, was appointed by said court general guardian of the estate of said infant in the place and stead of Ward, removed, and on the same day executed the usual guardian’s bond. No administrator has been appointed in the place of Ward, removed, of the estate of William Carleton. December 31, 1890, Ward filed in said court an account as administrator, by which it appears that he then had on hand $3,413.81 in cash belonging to the estate. This account was never judicially settled. March 23,1891, Ward filed a final account as administrator in said court, showing that he had in his hands $3,503 in money belonging to the estate, which, on the 2d of July, 1891, was adjusted and settled by said court. Ward was allowed $212.10 for commissions and counsel fees and was directed to pay to a creditor $150 in satisfaction of a claim. These sums deducted from $3,503 left $3,140.30 in his hands, which he was directed to pay over to George L. Prentiss, general guardian of the infant. Thereupon a judgment was docketed for the amount, on which an execution was issued in December, 1891, which was returned wholly unsatisfied.
    This action was brought on the administration bond against William T. Ward, the principal (though not so described in the bond), and against James M. Baldwin and William H. Bowden, the sureties (though they were not described as such in the bond), to recover $3,140.30, which Ward, as administrator, was directed by the decree of the Surrogate’s Court to pay to the plaintiff. Bowden alone defended the action, which resulted in a judgment May 26, 1892. On July 8, 1892, Bowden died, and the action was subsequently continued against his executors by order of the court.

      Benjamin, Patterson, for the appellants.

      George F. Bentley, for the respondent.
   Eollett, J.:

The learned counsel for the defendants insists that the plaintiff cannot maintain this action for three reasons: (1) That it cannot be brought by a general guardian, but should have been by a guardian ad Utem • (2) that it should have been brought by a new administrator appointed in the place of Ward, removed; (3) that leave to bring it has not been granted by the Surrogate’s Court.

The answer to the first objection is, that section 2607 of the Code of Civil Procedure provides that an action may be maintained on an administrator’s bond by and in the name of the person in whose favor the decree was made. The decree of the Surrogate’s Court directed the administrator to pay over to George L. Prentiss, general guardian of the estate of Marie Carleton, $3,140.30, upon his giving the security required by section 2746 of the Code. This brings the case within the section which expressly authorizes a general guardian to -maintain the action. The decree was not in favor of a guardian ad litem, and the action could not have been maintained by one. November 27, 1891, the plaintiff executed a bond pursuant to section 2746, which recited the decree which perfected the plaintiff’s right to bring this action.

The body of the bond is contained in the case, but the record does not show that it was “ approved by the surrogate,” as required by the section last cited. The answer to this is, that no such question was raised on the trial of the action. The bond, as printed, does not appear to have been acknowledged, but its, admission in evidence was not objected to on this or any other ground. The fact that an acknowledgment and an approval are not printed as a part of the record does not prove their non-existence. The original bond being a record, can be received in evidence on this appeal for the purpose of sustaining the judgment. (Wines v. The Mayor, etc., 70 N. Y. 613.)

There is nothing in the position that a new administrator should have been appointed who should have brought the action. The decedent’s estate was finally settled, and there was no occasion for the appointment of a new administrator. By the decree, the liar bility of tbe administrator to this plaintiff was established and his right of action was perfect.

Section 2609 of the Code provides that an action brought thereunder shall be by leave of the surrogate. That section does not relate to actions like the one at bar, but to actions brought by “ any person aggrieved * * * in behalf of himself and all others interested.”

The defendants urged on the trial that the surrogate’s decree was procured through the fraud and collusion of Ward, the administrator, and this plaintiff, and for that reason was not binding on the administrator’s sureties. Upon an examination of the record we are of the opinion that there is not sufficient evidence of collusion to have justified the submission of the question to the jury. The administrator filed two accounts, the first, December 1, 1890, which showed an indebtedness to the estate of $3,413.87; the second account, upon which the decree was made, was filed in March, 1891, by which the administrator charged himself with $3,503. The difference, $89.13, is accounted for by the amount charged for counsel fee, which was stated in the first account as $500, and in the second account the item was stated and allowed at $410.87. There is no claim that the first account was not voluntary and made by the administrator in entire good faith. The point that the surrogate could not finally settle the accounts of the removed administrator without appointing a new one, is not well taken. Section 2693 was not intended to be mandatory, as is clearly shown by section 2609. When an estate has been fully administered, as in the case at bar, the Surrogate’s Court is not required to go through with the needless formality of appointing an administrator.

It is also urged that the appointment of the plaintiff as general guardian was illegal, because the letters do not show, on their face, that a citation was issued to the person (Ward) formerly appointed general guardian. The petition, by which the proceedings resulting in the appointment stated all the necessary facts, and prayed that a citation be issued to Ward, the late guardian, to show cause, etc. It was prepared in January, 1891, but the case does not show when it was filed. The plaintiff was appointed March 9, 1891, so that there was ample time for the service and return of the citation.

The mere fact that the issuing of a citation is not recited in the letters, is not proof that a citation was not issued and served. A further answer to this point is, that it was not taken on the trial below. If it had been it might have been obviated by producing the citation.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Bollett, J. :

text:
    The People of the State of New York ex rel. Thomas C. O’Sullivan, Respondent, v. The New York Law School and George Chase, as Dean of The New York Law School, Appellants.

      Law school — refusal by the faculty to recommend a student for a degree — their discretion not interfered with by the courts.

    The faculty of a law school, having the right to recommend to the Regents of the University of the State of New York students deemed to he worthy of a. degree, is vested with a broad discretion as to the persons who shall be so recommended, and when the conduct of a student has been such, intermediate his final examination and the time of conferring degrees, that there is a fair occasion for the exercise of discretion on the part of the faculty; the exercise: of such discretion should not be reversed by the courts, and the case must be an extraordinary one to justify judicial interference.
    Notwithstanding the right of a law school, in the proper exercise of its discretion, to refuse to recommend, as worthy of a degree, a student who has attended the school and passed a satisfactory final examination, the student is entitled, under such circumstances, to a certificate of attendance and of having passed a satisfactory examination.
    Appeal by the defendants, the New York Law School and George Olíase, as Dean of the New York Law School, from an order of the Supreme Court, made at the New York .Special Term at Chambers, and entered in the office of ■ the clerk of the city and county of New York on the 1st day of September, 1892, directing the issuance of a peremptory writ of mandamus.
    On the 11th of June, 1891, the New York Law School was. incorporated by the University of the State of New York, by charter No. 658, which contained the following provision: “This charter shall have no power to grant degrees, but the Regents will confex the degree of Bachelor of Laws on. the graduates who have been certified by the New York Law School as having completed its full course, and as being duly qualified, in all other respects, and who have passed all examinations and met all other requirements prescribed by law or by the university ordinances.”
    By chapter 378 of the Laws of 1892, individuals, associations- and corporations not authorized by some statute of the State, or hy the Regents, are prohibited from conferring degrees. By the rules and practice of the Regents, the degree of Bachelor of Laws is conferred only on candidates who meet the following requirements: (1) Those who have passed the required law student examination as-to preliminary general education at a standing of not less than, seventy-five per cent; (2) Those who have passed the Regents’ examinations in law at a standing of not less than’ seventy-five per1 cent; (3) Those who have been certified in writing by the Dean,, or an officer legally authorized to grant such certificate on behalf o£ the school, as having completed to the satisfaction of the faculty the. full course of the said law school; (4) Those who have a similar-certificate from the law school that the candidate is duly qualified in all other respects to receive said degree.
    Whether the candidate possesses the first and second requirements-is decided hy the Regents through their own examination, but whether he possesses the third and fourth is determined hy the faculty of the Lav school, the Regents accepting then certificate as. final. In 1892 the Board of Regents appointed a person to examine the graduating class of the law school, and in May of that year the relator was examined hy him and was found to have a sufficient, general education and knowledge of the law to entitle him to the degree, which was reported hy the examiner to the Regents and to the Dean of the law school. It is the practice of the Regents to-make out diplomas for all students who have passed their examinations and forward them before the day fixed for graduation to the-Dean of the school, who by countersigning them, certifies that the candidates possess the third and fourth qualifications. On the day appointed for the graduation of the candidates, one of the Regents, confers the degrees and delivers the diplomas. On the day fixed, for the graduation of the senior class of 1891 and 1892, the degree, of Bachelor of Laws was not confered upon the relator, nor was a. ■diploma delivered to him, because the Dean of the school refused to certify that he was qualified in all other respects to secure the 'degree.

      -Albert B. Bowrdmcm, for the defendants, appellants.

      Pra/nklvn Ba/rtlett, for the relator, respondent.
   Bollett, J. :

A peremptory writ of mandamus can only be granted in the first instance, in case the applicant’s right thereto depends only upon questions of law. (Code Civ. Pro. § 2070.) Upon a motion for a peremptory mandamus, if opposing affidavits are read which conflict with the moving affidavits, the right to the writ must be determined upon the assumption that the averments of the opposing affidavits 'are true. If the relator desires to controvert or avoid the statements 'made in the opposing affidavits he should take an alternative writ so .that the questions of fact can be tried. (People ex rel. P. C. Savings Bank v. Cromwell, 102 N. Y. 477; People ex rel. Martin v. Brown, 55 id. 180.) Under this rule the statements of the answering affidavits, in so far as they conflict with those 'served in behalf of the relator, must be regarded as true. Preceding the commencement exercises of June, 1892, a committee was appointed, upon the suggestion of the Dean of the school, by -the members of the graduating class to make arrangements for the commencement, secure a hall and engage a speaker. A question •arose in the committee as to whether religious exercises should be had at the commencement. The committee, by a majority vote, after much contention, decided to invite a clergyman of one denomination to offer the opening prayer and a clergyman of another sect to pronounce the benediction. On the second of June the Dean stated to the committee that their action w?'5 unwise, and that it would make an unfortunate precedent where so many religious faiths were represented, would tend to breed discussion in the future, and that he would advise, in view of the situation, that they have no religious exercises, which suggestion was adopted by a vote of the committee. On the morning of June third, the Dean was advised by a telegram that the degrees would be conferred by Bishop Doane, one of the Begents. Because a church dignitary was to confer the degrees the faculty of the school determined that he should be asked to conduct appropriate religious exercises, which determination was immediately communicated to the class committee. On the same day the relator and eight or ten others remonstrated against the action of the faculty, and Mr. O’Sullivan charged the Dean with underhanded conduct, and the students then present threatened not to attend the commencQment exercises unless the action of the faculty was reversed. On the morning of June fourth, Mr. O’Sullivan had an interview with the Dean which is described by him in his answering affidavits, but need not here be repeated, for it is sufficient to say that it discloses conduct on the part of the relator justifying the refusal of the faculty to recommend him as a student upon whom a degree should be conferred.

The relator, by taking a peremptory writ, has admitted the truth of the answering allegations, an.d the sole question is, whether the conduct described, justified the Dean in refusing his certificate to the relator. Assuming that the relator’s conduct is correctly stated by the Dean, as we must, it was, to say the least, contumacious, and calculated to breed discord and trouble in the school. That there should be some power vested in the faculties of schools and colleges to repress and punish such conduct, will be conceded by all. It cannot be that a student, having passed all examinations necessary for a degree, can, before his graduation, excite disturbance, and threaten injury to the school or college, without being amenable to some punishment. No course would seem open except to forthwith expel him or refuse his degree. In this case the latter course was taken.

The faculties of educational institutions having power to confer degrees, and the teachers of schools having the right to recommend to the Begents of the University students deemed to be worthy of degrees, are necessarily vested with a broad discretion as to the persons who shall receive those honors, or be recommended for such distinctions; and when the conduct of a student has been such, between his final examination and the time of conferring degrees, that there is a fair occasion for the exercise of discretion on the part of the faculty, as there clearly was in this case, it should not be reversed by this court, and the case must be an extraordinary one to justify judicial interference. Any other rule would be subversive of all discipline in the schools and of the educational interests of the State.

To hold that dissatisfied students in the colleges and schools of this State can review the discretion of faculties in cases when the facts justify the exercise of discretion, would be most unwise. We see no reason why the right to discipline a student is not as great between the final examination and the graduation as before, and if we can control the action of the faculty in this case, why may we not be called upon to supervise it in the case of expulsion or suspension of students during their college course ?

Notwithstanding the right of the school to refuse to recommend the relator as worthy of a degree, he is entitled to a certificate of attendance, and that he passed a satisfactory examination.

The order of the Special Term is reversed, and the peremptory writ of mandamus is dismissed, with twenty dollars costs and disbursements against the relator.

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

Order of -Special Term reversed, and the peremptory writ of mandamus dismissed, with twenty dollars costs and disbursements against the relator.


author: Yan Brunt, P. J:;

text:
    Louis Lindheim and Others, Respondents, v. The Manhattan Railway Company and The Metropolitan Elevated Railway Company, Appellants, and John L. Lindheim and Others, as Trustees, etc.

      Authority of an attoo'ney to bring an action — heirs not entitled to maintain an action for damages to realty, the title of which is in trustees.

    Ah action to recover past damages to realty belonging to a testator’s estate, tbe title to which is in testamentary trustees, cannot be maintained by the testator’s heirs, unless the trustees have refused to protect the rights of the heirs.
    The complaint in an action brought in the names of the heirs of a testator (the title to whose realty was by his will given to trustees), and by certain other parties who had no interest in the estate, to recover, from elevated railroad companies in New York city, past damages to realty belonging to the testator’s estate, was verified by one of the plaintiffs who had no interest in the action and as to whom it was dismissed on the trial, and not by any of the heirs; the attorney who brought the action claimed to have a retainer from the heirs, but did not produce it, and although he claimed to have had a conversation with one of the heirs in respect to bringing the action, could give none of the’ particulars.

      Held, that no authority in the attorney to bring the action for the heirs was. established.
    That an allegation in such complaint, that the trustees had “refused and declined to be made parties plaintiff in this action and they are made defendants for that purpose only,” and proof tending to show that the only action which the. trustees were requested to join in was represented to them to be in behalf of a party who had no interest in the estate, did not show that the trustees had refused to bring any action in the interest of the estate, and hence did not-entitle the heirs to maintain the action.
    Appeal by the defendants, the Manhattan Railway Company and the Metropolitan Elevated Railway Company, from a judgment of' the Supreme Court, entered in the office of the clerk of the city and county of New York on the 3d day of March, 1892, upon a verdict rendered at the New York Circuit in favor of the plaintiffs, Louis Lindheim and others, and of the defendants, John L. Lindheim and others, as executors and trustees under the last will and testament of Moses Lindheim, deceased, and from an order entered in said clerk’s office on the 1st day of April, 1892, denying a motion for a new trial, made upon the minutes.

      It. I. Maynard, for the appellants.

      JE. W. Tyler, for the respondents.
   Yan Brunt, P. J:;

This action was brought to recover damages for the operation of the defendants’ railroad in front of premises located on the southwest corner of Broome street and South Fifth avenue, from the 15tli of May, 1882, to the 22d of April, 1881.

It appeared that in 1867 the property was purchased by one Moses Lindheim and Bernard Stirn. Bernard Stirn subsequently, in May, 1882, conveyed to his brother, Samuel Stirn, half of his interest in the property. In 1871 Moses Lindheim died, leaving a will, whereby he devised all his estate, real and personal, to his executors in trust. Letters testamentary were issued to Bertha Lindheim, his widow, John L. Lindheim, his brother, and to Jacob Bookman on tbe 23d of March, 1871. Bertha Lindheim having ■died on the 26th of February, 1884, one Samuel Cohen, was appointed executor and trustee in accordance with the provisions of said will. The trustees were empowered to sell any real estate of which Moses Lindheim died seized and possessed ; and in March, 1884, the trustees under said will sold, and by deed executed by them, conveyed to Bernard Stirn their half interest in the premises in suit, in which deed the heirs of Moses Lindheim joined. From this date Bernard Stirn was the owner of three-fourths, and his brother Samuel of one-fourth of the premises. On the 25th of January, 1888, a suit was brought by the Stirn brothers against these defendants in which they recovered past damages upon the property for the amount of their interest in the same for the period between January 5, 1882, down to the time of trial in June, 1888. In May, 1888, this action was commenced by the service of a summons, in which the Lindheim heirs and the Stirn brothers were made plaintiffs, and the executors and trustees under the will of Moses Lindheim and the Manhattan Railway Company and the Metropolitan Elevated Railway Company were made defendants, to recover the damages sustained by that portion of the property owned by the Lindheim estate from the 15th of May, 1882, to the 22d of April, 1884, the day on which the Lindheim half interest was conveyed to the Stirns. The complaint was verified by Bernard Stirn,. who it1 is conceded had not the slightest interest in the controversy, and as to whom the complaint was dismissed upon motion of the defendants. The case was subsequently submitted to the jury, who rendered their verdict, and from the judgment thereupon entered, and from an order denying a motion for a new trial, this appeal is taken.

It is urged upon the part of the appellants that it was error tor deny the motion to dismiss the complaint, substantially upon two grounds : first, that no authority whatever to bring the action was established; and, second, that even if such authority had been established, the title to the propercy being in the trustees of Moses Lindheim, his heirs could not maintain1 the action.

It seems to us that the ease is absolutely devoid of any proof of authority on the part of the attorneys to maintain this action. The complaint was verified by, a party who had not the slightest interest in the action, and as to whom it was dismissed. And, although it was stated by tlie attorney claiming to be tbe counsel for tbe Lindheim heirs that he had a retainer from those heirs, he seems to have been unable to produce it; and, although he claimed to have had a conversation with one of the heirs in respect to bringing the action, it was impossible for him to name which one, or when, or where. In fact, so far as the ease shows, there does not seem to-have been a particle of authority conferred upon the attorneys to-bring the action.

But even if there had been Such authority conferred by the heirs* the title being in the trustees, the suit must be brought by them unless they had refused to protect the rights of the heirs, and of this there is neither allegation nor proof.

It is attempted to bolster up this action by a claim, which is an afterthought, of a refusal upon the part of the trustees to bring any action in the interest of the estate. We say this was an afterthought because no such allegation was contained in the complaint. If it is claimed that the last clause of the sixteenth paragraph of the complaint is such an allegation, a mere inspection of it will show that it is not. It is as follows: “ That said executors and trustees have refused and declined to be made parties plaintiff in this action, and they are made defendants for that reason only.”1 They had a right to refuse to allow these self-constituted attorneys, to bring an action in their name. They had a right to bring and control the action themselves, and could not be compelled to accept, these self-elected attorneys, because the attorneys appearing in the action do not even seem to have been selected by the heirs. That, this is all the request that ever was made upon these trustees is. apparent from the letter of the attorneys of the 21st of April, 1888. They say, writing to one of the trustees: “We are about to bring an action for the Stirns to recover damages,” etc.

What interest had these executors in any action to be commenced by the Stirns to recover damages ? They were not required to be mixed up with the Stirns in their case. There is no pretense that they were acting then on behalf of the heirs of Moses Lindheim, or that it was in the interest of that estate that the suit was to be begun. They then go on and say: “ As the people representing the Lindheim estate are necessary parties to the action we must make you parties either plaintiff or defendant, whichever you prefer. Please let us know whether we shall make you and the other executors coplaintiffs with us and recover for your half of the damages, or make yorr defendants? We should be glad to see you at your ■earliest convenience about this matter as the time is passing away for which we can recover, and the longer we wait the less recovery there can be.” Then, on the seventh of May, in another letter they say : “ Will you please call and see us to-morrow. We have heard from the Lindheims and they want us to bring suit.” This is the first that had been heard in regard to the Lindheims, and so far as this case shows, there is no legal proof that anything had ever been heard from the Lindheims.

It is true that the attorney testified that his recollection is very distinct that he made an application to be allowed to bring a suit; that there was no doubt in his mind about that whatever,; and that it was in the form of a letter addressed to them and signed as attorney for the Lindheims. But no such letter has been produced or proven, and it seems to us that this testimony is the witness’ construction of the letters which have been produced and are contained in-the case.

Now, actions cannot be maintained upon such a basis as this. 'There must be some foundation. It is evident that the origin of this action was to recover on behalf of the Stirns, and that these ■other people were brought in without notice to themselves and with■out right.

That the action was Stirns’ action is evidenced by the fact that he verified the complaint, and that all the recprest that was made upon the trustees was that they should be made plaintiffs, or otherwise be made made defendants in the Stirns’ action.

There is no intimation in any of the correspondence that they were appearing on behalf of the Lindheims, to commence an action to protect their rights. - And it is a significant circumstance that although one of the plaintiffs was examined as a witness there was no attempt made, after the original authority of the attorneys to ■appear for the Lindheim heirs had been questioned, to prove any such original authority.

We think, therefore, that there was no proof which entitled these ■parties to bring the action in question, and that the motion to dis1.miss should have been granted.

The judgment should be reversed and new trial ordered, with costs to appellants to abide the event.

O’Bkiex and Follett, JJ.,- concurred.

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


text:
    In the Matter of the Petition of James Blewitt, Appellant, That He be Adjudged Sane. Julia Blewitt, Respondent.

      Imnacy — application for a supersedeas and, the discharge of a committee, on the ground of recovery of sanity.

    On the application by an adjudged lunatic, alleging that he had recovered his sanity and praying for a supersedeas and for the determination of the question of his sanity at Circuit, it appeared that since the petitioner was adjudged insane, he had been given two opportunities to have the question of his sanity again passed upon by a sheriff’s jury, but had willfully neglected to avail himself thereof, and that he had escaped from the custody of his committee, and had left the State of New York, and refused to disclose his whereabouts, so that it was impossible to procure an examination, by a disinterested physician, as to his present mental condition.

      Held, that the application was properly denied.
    Appeal by the petitioner, James Blewitt, from an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 24th day of February, 1893, denying the petition and remanding the j>etitioner to the custody of his committee.
    The petitioner, James Blewitt, was adjudged insane, under a commission issued from the Supreme Court in June, 1890, on the application of Julia Blewitt, the present respondent, who was appointed and still is his committee. In the present petition the petitioner alleges that he has recovered his sanity, and prays for a supersedeas of the commission, and that the question of his sanity be determined by the court and jury at a Circuit of the Supreme Court. The petition was accompanied by the affidavit of the petitioner’s attorney, stating that he had had many conversations with the petitioner, and was satisfied that he was sane; and by the affidavits of two physicians, to the effect that they had examined the petitioner, and that in their opinion he was sane and capable of managing his estate; also, the affidavits of two laymen, stating that they had had business conversations with the petitioner, and that it was manifest therefrom that he was sane and capable of taking care of his property.
    The petition was opposed by an affidavit of Julia Blewitt, the committee, which disclosed the facts stated in the opinions herein, and that at various times since the adjudication in lunacy, the j>etitioner had been examined by physicians, experts on mental diseases, including four physicians, whose affidavits were a part of the records in this matter, declaring it to be their opinion, from careful personal examination, that the petitioner was permanently insane, with lucid intervals, and that he was not capable of caring for his person and managing his property.
    In denying the petition Mr» Justice Andrews delivered the following opinion at Special Term :
    “ Since the petitioner was adjudged insane, he has been given two opportunities to have the question of his sanity again passed upon by a sheriffs jury, but has willfully refused or neglected to avail himself of such opportunities. In view of that fact, of all the proceedings heretofore had, of the evidence submitted to the court in those proceedings and in this, I do not believe that the' petitioner has become competent to manage himself or his affairs, and I do not think his estate should be burdened with the expense of another proceeding, which, in my opinion, will be of no benefit to him. The application will be denied, without costs, and the stay of proceedings on the part of the committee, which was inadvertently granted by me, will be vacated.”

      Abram King, for the appellant.

      Lorenzo Serwple, for the respondent
   Per Curiam :

Nothing needs to be added to the opinion of the Special Term, upon which the order may well be affirmed, except that it appears from the record that the alleged lunatic has escaped from the custody of the committee, and has left the State of New York, and refuses to disclose his whereabouts, so that it is impossible to procure an examination, to be made by a disinterested physician as to his present mental condition.

We think the order should be affirmed, with costs.

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

Order affirmed, with costs.


text:
    Charles L. Brooke, as Receiver of the Property of William C. Rogers, a Judgment Debtor, Plaintiff, v. The Tradesmen’s National Bank, Defendant.

      Motion for a new trial on exceptions ordered to be Jiea/i'd at the General Term— case or bill of exceptions necessary.

    To entitle a motion for a new trial, upon exceptions ordered to be heard in the first instance at General Term, to be entertained by the General Term, the papers must contain a case or bill of exceptions, made or settled,, containing the proceedings upon the trial, and the absence of such case or bill of exceptions cannot be supplied by recitals contained in the order sending the case to the General Term.
    Motion by the plaintiff, Charles L. Brooke, as receiver of the property of William C. Rogers, a judgment debtor, for a new trial upon exceptions ordered to be heard in the first instance at the General Term, by an order made on the dismissal of the complaint at the New York Circuit, and entered in the office of the clerk of the city and county of New York on the 16th day of January, 1893.
    The papers before the General Term were entitled, “Bill of Exceptions,” and consisted of the statements required by Rule 41, the complaint, bill of particulars, answer, clerk’s certificate of the trial by the court and jury at Circuit, and the dismissal of the complaint, the order directing the exceptions to be heard in the first instance at the General Term, and notice of entry of the order, various stipulations and consents of the respective attorneys, and the following order:

      “ Upon reading and filing the annexed consent, and upon motion of Leavitt & Leavitt, plaintiff’s attorneys, it is hereby

      “ Ordered, that the foregoing bill of exceptions be, and the same is, hereby settled as the bill of exceptions ordered to be heard herein in the first instance, and that the said bill of exceptions be duly filed.
    “Dated New York, Jcmua/ry 21, 1893.
    “MILES BEACH,
    “ Ent. J. & OP

    The order directing the exceptions to be heard' at the General Term is as follows:
    “ This action having duly come on for trial in its regular order upon the calendar of this court at Circuit, Part II, before Hon. Miles Beach and a jury on January 5, 1893, and the defendant, at the commencement of the trial, having moved to dismiss the plaintiff’s complaint, and the said motion having been duly heard by said justice, and the said justice having thereupon dismissed said complaint, to which dismissal the plaintiff thereupon duly excepted, and thereupon duly made a motion for a new trial, which was denied by said justice, to the denial of which motion for a new trial the plaintiff likewise duly excepted, and the said justice having thereupon directed that an order be entered that the exceptions so taken be heard, in the first instance, at the General Term of this court, and that judgment meanwhile be suspended:
    “ Now, upon motion of Messrs. Leavitt & Leavitt, plaintiff’s attorneys, it is hereby
    “ Ordered, that the said exceptions be and the same are hereby directed to be heard, in the first instance, at the General Term of this court, and that meanwhile judgment be and the same is hereby suspended.”

      JE. M. Lemitt, lor the plaintiff.

      C. JE. BusJmbore, for the defendant.
   Per Curiam :

Upon an examination of the papers submitted upon this appeal, it is found that no case or bill of exceptions has been made or settled containing the proceedings upon the trial. All that the papers contain are the pleadings, a copy of the clerk’s minutes and an order directing the exceptions to be heard in the first instance at the General Term.

It is true that the order contains certain recitals; but the^ are not in the form of a case or bill of exceptions which it is necessary should be made in order to bring up the proceedings upon the trial upon this motion for a new trial.

There is no appeal from this order, but a motion for a new trial, because of exceptions taken upon the trial; and the proceedings upon the trial are not set out in a case or bill of exceptions as required by the Code.

The case should, therefore, be stricken from the calendar in order that the parties may have the proper papers prepared.

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

Case ordered stricken from calendar, so that the parties may have the papers prepared.