text:
    New York Bank Note Company, Appellant and Respondent, v. The Hamilton Bank Note Engraving and Printing Company, Respondent and Appellant.

      Purchase of property with knowledge that the vendor has agreed, not to give an absolute ' title thereto —valid, contract restricting trade — restraining the use of personal property — defect of parties.

    If a person purchases from another a printing press, having knowledge of the existence of a contract between the vendor and a third person whereby the vendor has agreed not to sell such presses except under certain restrictions, such third person is entitled to enforce his contract as against the vendee, and in an action brought for that purpose is not bound to make any tender.
    Contracts prohibiting the use of personal property in a particular way are valid.
    When in an action there exists a question as to the right of a corporation, not a. party thereto, to confer title to its printing presses upon the defendant with, an absolute right to use the same for any purpose to which they are adapted,, and such right is assailed by the plaintiff, who applies for an injunction against, the vendee to restrain its use of the presses, such corporation is entitled to be heard, and the question of its right to deal with its property as it sees fit cannot, be adjudicated upon without its presence where an objection that there is a. defect of parties is taken in time.
    Cross-appeals by the plaintiff, the New York Bank Note Company, and by the defendant, The Hamilton Bank Note Engraving and Printing Company, from portions of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the lYth day of November, 1894, upon the decision of the court rendered at the New York Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, adjudging that there is not a defect of parties defendant in the action, and overruling the defendant’s demurrer made upon such ground.

      JSdward P. Lyon, for the plaintiff.

      W. L. Turner, for the defendant.
   Yan Brunt, P. J.:

This action was brought to restrain the defendant from using the press bought by it from the Kidder Press ’ Manufacturing Company so as to compete with the plaintiff in strip-ticket printing. The complaint alleged the organization of the defendant, and that the New York Bank Note Company, a corporation organized under ■and pursuant to the laws of New Jersey, on the 12th day of October, 1891, entered into a contract with the Kidder Press Manufacturing Company, whereby the Kidder Press Manufacturing Company, for •considerations in said contract expressed, agreed not to sell any presses on which strip tickets might be printed. This restriction, however, was not to deprive the Kidder Press Company from selling its presses to be used for other purposes; and the Kidder Press Company further agreed not to make alterations or additions to any existing presses that would enable such presses to print strip tickets without requiring the parties owning such presses to make the same terms and agreements regarding the same as though they were new machines. The complaint further alleged that prior to the time of said contract, and at the time and subsequent to the making of the same, one C. E. Gray was the secretary of said New York Bank Note Company, and sustained towards it the most close and confidential relations; that he was familiar with the- first press made by the Kidder Company for said. New York Bank Note Company, and with such attachments, etc., and also with the provisions of the contract above referred to; that soon after the making of the contract Gray severed his connection with the New York Bank Note Company and became associated with the defendant corporation and its vice-president and general manager; that the defendant by its officers conceiving the idea of duplicating said presses and of using said Gray, and the knowledge he had acquired in his confidential relationship with the New York Bank Note Company, respecting the said presses, their said attachments and the said strip-ticket printing business and contracts therefor, and well knowing the terms of the said contract between said Kidder Press Manufacturing Company and said New York Bank Note Company, and wrell knowing that said Kidder Press Manufacturing Company had no legal right to sell or furnish to the defendant or to any person a Kidder perfecting press, except in such manner as would prevent said press from ever being used with or without alterations for strip-ticket printing, procured said Kidder Press Manufacturing Company, in violation of the terms of its said contract with the* said New York BaAk Note Company, to sell, furnish and deliver to it, the defendant, a Kidder perfecting press of substantially the same pattern as the ones to which said Kidder Press Manufacturing Company had made said attachments for the New York Bank Note Company ; and that defendant procured attachments to be added to the press in such way as to enable the defendant to print strip tickets on equally favorable terms with and in substantially the same manner as was done by the said New York Bank Note Company; and thereafter, and in the year 1893, with full knowledge of the rights of the plaintiff under said contract, procured another press, etc.

The complaint further alleged that on or about the 1st day of January, 1893, the plaintiff: was organized under the laws of West Virginia, and succeeded to all the rights of the New York Bank Note Company by assignment, etc., and prayed an injunction restraining the defendant from using any of the presses which it acquired from the Kidder Company for the purpose of strip-ticket printing, etc.

The defendant demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that there was a defect of parties in that the Kidder Press Manufacturing Company had not been joined as a defendant in this action.

The court, upon hearing the demurrer, sustained the same upon the ground that it did not state facts sufficient to constitute a cause of action, in that tlie plaintiff liad, not paid, or offered to pay, the value of the press furnished to the defendant, or at any rate had failed to tender a compliance with the terms of the contract upon its part, and overruled the demurrer as to the defect of parties.

"Wo do not see upon what theory the plaintiff was bound to tender anything, 'i If the defendant purchased from the Kidder Company the press in question, having knowledge of the contract between that company and the plaintiff’s predecessors, whereby the Kidder ■Company agreed not to sell any presses except under restriction, it is difficult to see why the plaintiff is not entitled to enforce its contract. The result of the contract between the Kidder Company and the plaintiff’s predecessor enabled the Kidder Company to give only a qualified title in the presses which it might produce. That company had by its contract agreed that its productions should be used only in a certain way, and when parties took those productions with knowledge of the restriction which accompanied the Kidder Company’s title, the purchaser’s title must necessarily have been affected the same as the seller’s.

Independent of the acts in relation to the filing of chattel mortgages, if a party purchases personal property knowing that the same is mortgaged, can it be claimed that he would acquire a title relieved from the mortgage ? It seems hardly necessary to discuss such a proposition. So in the case at bar, the defendant in this action knowing that the Kidder Company had no right or authority to sell its presses except with a restriction, which restriction the plaintiff had purchased, can it be said that in purchasing from the Kidder Company it acquired an absolute title relieved from such restrictions? Clearly not. The party purchasing under such circumstances takes the property burdened with the contracts made by its owner in reference thereto and which he had the power to make. Contracts prohibiting the manufacture of goods in certain localities are held to be valid ; contracts restraining the carrying on of a trade or business within certain limits are held to be valid. Why not contracts prohibiting personal property from being used in a particular way ? Is place different in this respect from method ? It would not be argued for a moment that if the contract between the Kidder Company and the plaintiff had been that no Kidder presses should be used within the city of New York, such contract could not be enforced against tbe persons purchasing such presses with knowledge of this contract. What difference in principle is there because it is not an absolute prohibition from using, but only from a particular use ? J

It seems to be clear that the Kidder Company could place this restriction upon the use of its manufacture, and certainly, in respect to all persons buying with knowledge of this restriction, the plaintiff, for whose benefit it was made, would have a right to enforce the same.

The next question is in regard to the knowledge of the defendant of this restriction. It is alleged in this complaint as distinctly and as positively as any allegation therein contained. The allegation is that the defendant by its officers, “ * * * well knowing the terms of the said contract between said Kidder Press Manufacturing Company and said New York Bank Note Company, and well knowing that said Kidder Press Manufacturing Company had no legal right to sell or furnish to the defendant, or to any person a Kidder Perfecting Press except in such manner as should prevent said press from ever being used, with or without alterations, for strip-ticket printing, procured said Kidder Press Manufacturing Company, in violation,” etc. What more distinct allegation of knowledge could be made by the plaintiff than is therein contained? It is true the allegation is accompanied by allegations with regard to Gray’s instrumentality. But these are not qualifying words by any means. If true, they would show not only knowledge upon the part of the officers of the defendant, but a fraudulent design to evade the restrictions of which they had knowledge.

We think, therefore, that the complaint stated facts sufficient to constitute a cause of action ; and we know of no reason why the plaintiff should be required to pay anything to anybody because of the breach of its contract by the Kidder Company by the sale of these presses to the defendant, the defendant being fully aware of the existence of the contract.

The objection, however, in regard to the defect of parties seems to have a better foundation. The question involved, amongst others, is as to the right of the Kidder Company to confer a title upon the defendant of its presses with an absolute right to use the same for any purpose for which they were adapted. When this right is assailed, as it is by the plaintiff’s action in this proceeding for an injunction against a vendee of the Kidder Company, it seems to us that that company is entitled to be heard; and that the question of its right to deal with its property as it sees fit cannot be adjudicated upon without its presence, where the objection is taken in time as it is in the case at bar.

For these reasons we think that the demurrer should have been sustained upon the ground of defect of party.

The judgment, therefore, should be reversed so far as it holds the complaint defective as to facts, and also so far as it holds the complaint sufficient as to parties, without costs of this appeal to either party; the plaintiff to be allowed upon payment of the costs of the court below to amend by bringing in the Kidder Press Company as a party, and serving an amended complaint.

O’Brien and Parker, JJ., concurred.

So ordered.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    The People of the State of New York, Plaintiff, v. The Life Union, Defendant. Harriet A. Pindell and Another, Appellants; Thomas Ashworth and Others, Respondents.

      Distribution of the reserve fund of a life insurance company — when death claimants home no interest therein.

    It was apparent from the provisions of the constitution and by-laws of, and the certificates of membership issued by, a life insurance corporation, that the reserve fund thereof was created primarily for the benefit of the members of the association, and was to be used exclusively for their benefit, although such fund, except that portion of it represented by paid-up certificates, might be used to pay losses in excess of the mortality tables.

      Meld, that such fund was divisible among the living members of the association, * and that death claimants had no interest therein.
    Appeal by Harriet A. Pindell and another from portions of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, on the 16th day of October, 189i, confirming the report of a referee, except in so far as said report assumes to charge an officer of the defendant with misfeasance, overruling the appellants’ objections thereto, and directing the distribution of the reserve fund of a life insurance corporation, and also from an order, made at the New York Special Term and entered in said clerk’s office on the 17th day of October, 1894, denying the appellants’ application- to have the report of the referee and of the actuary re-committed severally to such referee and actuary, and also from an order, made at the New York Special Term and entered in said clerk’s office on the 14th day of November, 1894, denying the appellants’ motion for an order directing the receiver to commence an action against the directors of the defendant.

      B. J. Moses, for the appellants.

      JS. L. Mooney and M. P. O' CJownor, for the respondents.
   Van Brunt, P. J.:

What this action was brought for does not appear from the record herein, as the pleadings are not set forth. It seems, however, that on the 27th of February, 1894, an order of reference was made to examine the account of a receiver who seems to have been appointed in this action, and to hear the allegations and proofs of such persons as might appear before the referee with reference to the distribution of the fund in the hands of the receiver, known as the reserve fund, and to report to the court what disposition should be made of said reserve fund, in his opinion.

Subsequently the referee reported that as between the two classes of claimants to the reserve fund, the representatives of deceased certificate holders and the living members, including in the latter class the representatives of those who had died since the commencement of these proceedings, the living members or their representatives were, in his opinion, entitled to the fund proportionately to the gross amount of assessment paid by them respectively.

It is this conclusion of the referee which it is necessary for us to consider. Upon the coming in of the report, exceptions were duly filed, which were overruled so far as this question was concerned, and the report confirmed, and this appeal was taken from so much of said order. A motion was also made to send the report back to the referee, which was denied, and from that order an appeal was also taken. It is admitted upon the part of the appellants that, if the action of the court upon the appeal first above mentioned should be upheld, there would be no necessity for referring back the report of the referee. The referee based his decision upon the decision of the Court of Appeals in The Matter of the Equitable Reserve Fund Life Association (131 N. Y. 371). That association was somewhat similar in character to the one at balan d had a similar reserve fund; and the question involved was as to its disposition. It was there held that the rights of the parties were to be decided with reference to the constitution and by-laws of the association and the contents of the certificates of membership, all of which, taken together, formed the contract between the company and the certificate holders. *

The questions presented are substantially the same as those before the court in the case cited, with one exception, which will be noticed hereafter. It appears from the report of the referee that the certificate of incorporation of the Life Union was filed on the 11th of June, 1885, in the office of the clerk of the city and county of New York, under the law then in force (Chap. 175, Laws of 1.883), and the association commenced its business on the co-operative or assessment plan in this city shortly thereafter, the first policy having been issued on the 22d of August, 1885. The charter provided that all moneys collected for the' reserve fund should be deposited with a trust company, designated by the board of directors, as a trust fund, for the sole benefit of the members of the Life •Union. No moneys so deposited should be withdrawn, except upon the order of the president, treasurer and secretary, for such purposes as should be provided for in the by-laws and in conformity with the terms and conditions controlling the trust fund.

Upon the lltli of June, 1885, the association adopted the following by-laws: ' ■

Article XII. Reserve Fund.

Section 1. Fifteen (15) per cent of all net assessments for Mortuary and Benefit purposes, with accretions, shall be deposited with such trust company as may be designated by the directors, as a trust fund, for the exclusive use and benefit of the members of the Union.

“ Section 2. The reserve fund, except that portion represented by paid-up certificates, may be used to pay losses in excess of the American experience table of mortality.

“ Section 3. After five years from the thirty-first day of December, 1885, and each year thereafter, a dividend from that portion of the reserve fund created the first year of each series of five years shall be made to all members whose certificates have been in force continuously for that period, which amounts shall be credited to their account and used in payment of future dues and assessments.

Section 4. Such amounts as may be required to meet paid-up certificates, as provided in section 5 of article YIII, shall not be used for any other purpose.

“Section 5. Any portion of the reserve fund not otherwise required may be loaned to pay claims under section 2 of article YIII, as therein provided.”

Section 5 of article YIII is as follows: “ Any member of the Union whose cei’tificate has been in force for ten or more consecutive years shall have the option of surrendering the same and receiving therefor a paid-up certificate for such equitable proportion of the reserve fund as may appear to his credit on the books of the Union.”

The accumulation of the trust fund commenced in 1886, and an agreement was made on the twelfth of April of that year between the Life Union and the Knickerbocker Trust Company, by which the latter agreed to hold and invest the funds deposited with it, the material portions of which agreement read as follows : “Third. Upon receipt of a certified copy of a vote of the board of directors of said Union, authorizing the transfer of any portion of the reserve fund above mentioned to the death fund account, such transfer shall be made by said Trust Company. But in every case the resolution of the board of directors authorizing such transfer shall state that such transfer is authorized by sections II, III, IY and Y of article XII of the by-laws of the Union.

Sixth. In case of a dissolution of the party of the first part (the Life Union), the entire reserve fund shall be divided among the then members of the Union proportionately to the gross amount of assessments paid by said members respectively to said Union, in accordance with a statement which shall be furnished by the party of the first part and certified to by their board of directors, prior to-said dissolution, as correct, or shall be distributed ,in such other equitable manner as the courts shall direct.”

The certificates of membership which were in general use a;nd which are to be considered in the disposition of this appeal read as follows:

Within ninety days after the receipt of satisfactory proof to the Union of the death of the above-named member, while this certificate remains in force, upon the following conditions: There shall be payable to —-— of-, State of -, if living at the time of said death, otherwise to'the legal representatives of said member, less such amounts as may have been advanced in final sickness, the sum of --thousand dollars, from the mortuary and benefit fund of the Union, at the time of said death, or from any moneys that shall be realized to the said fund from the next assessment to be made as herevnafter set forth, it being understood and agreed that not more than one assessment shall be made for each death loss. "x' * *

“ 1. It is understood and agreed that whenever a loss occurs in the membership of the Union, either by death or permanent disability, and the amount in the mortuary and benefit fund is insufficient to meet the same, an assessment may be made upon all the-holders of certificates in force at the time of such loss according to • the age of each member at the timé of admission and the amount of his certificate, as per table indorsed hereon. Eighty-five per cent of the net amount realized from each assessment shall constitute the mortuary and benefit fund of the Union, hereinbefore' referred to, and shall be used only for the payment of approved losses, as above provided.

“2. Fifteen per cent of all net assessments, with the accretions-thereon, shall constitute a reserve fund, which shall be deposited with a trust company as a trust fund, for the exclusive use of the-members of the Union.

“ 1. At the expiration of five years from the 31st day of December next, and each year thereafter, all that portion of the reserve fund created the first year of the series of five, will be divided prorata to the amount contributed amongst those certificates which-have been in force five or more years, and placed to their credit, to be used in payment of dues and assessments as they occur.

“ 6. The reserve fund, not represented by dividends declared or amounts necessary to meet paid-up certificates, may be used to pay losses in excess of the American Experience Table of Mortality.”

The by-laws of 1887, as amended and adopted on June 21, 1887, provide as follows:

“Article YII. Benefits.

“ Section 1. Upon the death of a member, the Union shall, within three months after due notice and satisfactory proofs of such death, pay to the beneficiary named on the boohs of the Union, if such beneficiary be living at the time of such member’s death, otherwise to the heirs or legal representatives of such deceased member, the amount to which the same may appear entitled, according to the terms of the certificate of membership, out of the mortuary and benefit fund (hereafter defined) of the Union; or if the mortuary and benefit fund shall then be insufficient to pay the whole of any such claim, then out of the moneys to be realized from the next assessment to be made, as hereinafter described. And no death claim shall become otherwise due or payable except from the Reserve Fund, as hereinafter provided.

“Article XI. Mortuary and Benefit Fund.

“ Section 1. Eighty-five (85) per cent of all net assessments for mortuary purposes shall be deposited with such bank or trust company, as may be designated by the directors, to the credit of the mortuary and benefit fund of the Life Union, from which claims shall be paid.”

“Article XII. Reserve Fund.

“ Section 1. Fifteen (15) per cent of all net assessments for mortuary and benefit purposes, with accretions, shall be deposited with such trust company, as may be designated by the directors, as a trust fund for the exclusive use and benefit of the members of the Union.

“ Section 2. The reserve fund, except that portion represented by paid-up certificates, may be used to pay losses in excess of the American Experience Table of Mortality.

“ Section 3. After the reserve fund shall have reached the sum of $100,000, the accumulations over that amount shall be annually divided among the members of five or more years’ standing, and placed to their credit to meet future dues and assessments, or shall be applied to pay death claims, as may be determined by a vote of the members at that time.”

After the adoption of these by-laws the certificates of membership were amended, and in 1892 the by-laws were further amended.

In view of the decision in the case above referred to of The Matter of the Equitable Reserve Eund Life Association, it does not seem necessary to discuss the rights which were conferred by these by-laws, except so far as they may differ from those in the case cited. In The Equitable Reserve Eund Life Association action a section of one of the articles of the constitution permitted the board of trustees, m thew discretion, to use the securities in which the moneys forming the reserve fund had been invested, for the purpose of making any deposits required or allowed by law or usage of this or other States, or to meet the want or necessity of the association that might thereafter ai-ise by reason of unforeseen contingencies ; and the court held that this section, although somewhat obscure, evidently referred to a want or necessity which might arise by reason of unforeseen contingencies, and while the company is alive and in the hands of its board of trustees, because the question of the application of the securities was to be decided by such board. The provisions which are contained in the by-laws, etc., of the corporation now under consideration are, that the reserve fund may be used to pay losses in excess of the American Experience Table of Mortality, evidently reposing the discretion as to whether the fund shall be thus used or not in the corporation. "Where such discretion is reposed in the corporation, it must be exercised by its board of directors, and was evidently intended only to apply, as in the case cited, to a living corporation; the action to be taken while the corporation was in the exercise of its powers and duties, and not by a dead corporation.

Taking the provisions of the constitution, the by-laws and the certificates of membership together, it seems to be apparent that this reserve fund was created primarily for the benefit of the members of the association. The provisions of article 12 of the constitution, which provided for the institution of this fund, show that it was to be for the exclusive use and benefit of the members of the association, and that the reserve fund, except that portion represented by paid-up certificates, “may be used to pay losses in excess of the American Experience Table of Mortality.”

It seems to us, if the reasoning .of the Court of Appeals in-the case cited is correct, it is entirely applicable to the case at bar, and death claimants have no interest in this fund. Although this view of the object of the reserve fund was contrary to that which was held by this General Term, when the case of The Equitable Reserve Fund Life Association was before us, not being able to see any practicable distinction between the two cases, we are compelled to follow the adjudication of the court of last resort.

The orders appealed from should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Orders affirmed, with costs.


author: Parker, J.:

text:
    The People of the State of New York, Respondent, v. James Gorman, Appellant.

      Judgment of conviction — when reversed on appeal under Ch’iminal Oode, § 527 — erroneous charge not excepted to.

    Upon an appeal from a judgment of conviction it appeared that on the trial the court twice, in the charge to the jury, asserted the existence of a fact which, if true, must have had an important influence upon the minds of the jury when there was in fact no evidence to support such assertion, and also referred to the testimony of a witness, -who testified in favor of the defense, in such a way as to inform the jury that in the opinion of the court the testimony given by such witness was false, and asserted that such opinion as to its falsity was “in accordance with common sense, reason and the evidence.” No exception was taken to the judge’s charge.

      Held, that if the question of the credibility of such witness was of vital importance to the defendant the judgment of conviction would be reversed under section 527 of the Code of Criminal Procedure, although no exception was taken.
    Appeal by the defendant, James Gorman, from a judgment of the Court of General Sessions held in and for the county of New York, rendered on the 25th day of September, 1894, upon the verdiet of a jury convicting the defendant of the crime of assault in the second degree, and also from an order denying the defendant’s motion for a new trial.

      Hugh J. Pentecost, for the appellant.

      John Ii. Fellows, District Attorney, and John D. Imdsay, for the respondent.
   Parker, J.:

The only exception taken by the defendant upon the trial was to a denial of his motion, made after the People had rested, to take the case from the jury on the ground that there was not “ enough evidence to go to them.” After a careful reading of the record, we are satisfied that this motion was properly denied by the court.

But, as section 527 of the Code of Criminal Procedure vests in the Supreme Court the power and duty to order a new trial “ if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below,” certain questions brought to our attention by the counsel for the appellant will be considered.

In August, 1894, Margaret Fitzgerald, a married woman, residing in Bristol, Connecticut, visited New York accompanied by her two children, the elder of whom was between four and five years old. During her stay she was a guest at her brother’s house, where the defendant, an old acquaintance of her husband’s, frequently visited her.

In the afternoon of August sixth, Mrs. Fitzgerald, accompanied by her two children and the defendant, boarded the steamer G. H. Wortham on her return journey home. A few hour’s later the captain of the steamboat hearing a disturbance in stateroom No. 89, which had been assigned to the defendant, hastened to it to learn the cause. ITe found the door of the stateroom bolted, but succeeded in getting it partly open, when he saw a woman’s hand dripping with blood. Summoning assistance the stateroom was entered and the woman found to be suffering from stab wounds on her neck and left hand, the defendant being similarly cut. The officer who arrested defendant within a few minutes after the stateroom had been opened, testified that the woman in his presence and that of defendant, and in response to an inquiry by the officer, said that “ he (meaning defendant) cut me.” When asked with what, she answered a razor, whereupon the officer produced a razor blade still wet with blood, and asked her if that was the razor, to which she replied yes.”

The officer further testified that the defendant, on the way to the Chambers Street Hospital, voluntarily said, “ I intended to do it,” and when asked why, said: It was a matter of jealousy. I didn’t cut her; she cut me. I did intend to do it.” Not until the fifteenth of August was the woman able to get about, and then was brought before a magistrate, and in the presence of the defendant made a formal complaint against him. Hpon the trial, however, she testified that her former statement was entirely false, and that the defendant was in no way answerable for the injury which she had received. Her account of the occurrence, then, was that after some general conversation in the stateroom the defendant accused her of being intimate with a cousin of hers, and threatened to tell her husband ; that she asked him whether he believed it, and when he said “ yes,” she first struck him with a glass, then picked up the razor blade, which she had noticed lying on the washstand when she entered the stateroom, and cut her own neck with it; that the defendant tried to take the razor away from her, and in the struggle she .cut her hand.

If her testimony upon the trial was true, the defendant was not guilty of the crime charged. If, on the other hand, her sworn statement before the magistrate was true, he was guilty. How the jury should find upon that question was, therefore, one of much moment to the defendant. That the woman had been guilty of perjury, upon either one occasion or the other, was beyond question, and she was justly entitled to the censure which the court meted out to her; indeed, she merited far greater punishment.

But however great her offense against the law, it w'as the defendant’s right to have her testimony weighed by the jury in connection with all the other facts proved, to the end that they should determine upon which of the two occasions she told the truth. The trial court was evidently of the opinion that the witness told the truth before the police magistrate and not upon the trial, and both by inquiry of tlie witness and comment on her answers he indicated very strongly to her, and to the jury as well, what his opinion was, as will appear from some quotations which we take from the record :

“By the Court. — Q. You lied either in the Police Court or you lied here, didn’t you ? A. Yes.
“ The Court. ■— Then we have got to find out when you lied. When people admit that they lie, sometimes it is pretty hard to tell when they tell the truth, especially when they swear to lies. * * *
“The Court. — You have just said that he cut you. You want to be careful, or you will be tripped up. If you don’t tell the truth I will lock you up ; you may be sure of that. The Court will not be trifled with. * * *
The Court. — Is she in the House of Detention ?
“Mr. Weeks. — No.
“ The Court.' — -Then do not let her leave the court room until the case is concluded.”

These inquiries and comments by the court are not referred to as furnishing sufficient ground for reversal, but rather because they show the impression which her testimony had made upon the mind of the court, and give emphasis to the portions of the charge to which reference will now be made.. The court, in its charge, said: “We find the situation of a person, having complained at'the time the person is presented to her, identifying him, going to the Police Court and making a complaint there; going before the grand jury and making a complaint there; going to the defendant this morning and appearing upon the stand in this court and making a different statement.” And again, “ certain it is that she was so coherent in that statement, and it was made in so satisfactory a manner, that a criminal complaint was founded upon it; and certain it is that subsequently she was in sufficient health and intelligence to go before the grand jury and repeat that statement. It resulted in an indictment which has brought this defendant to this bar.”

We are not able to find in this record any evidence that the woman even appeared before the grand jury.

Thus it appears that twice in the charge to the jury the court asserted the existence of a fact which, if true, could have none other than an important influence upon their minds when there was no evidence before the court to support such assertion. Again, the court, after charging the jury that if they believed she had made a misstatement under o'ath on one occasion or the other, they would be left in a situation not to believe her, but, at the same time, if you believe in accordance with common sense, reason and the evidence that the story that she now tells is a falsehood, and that the story that she admits having told in the Police Court is the true one, she should not be allowed to humbug you or the court, or trifle with its process, or make a bargain with the defendant, to the end that he may escape the consequences of crime if that be the situation.”

Note. — The rest of the cases of this term will he found in the next volume, 84 Hun.— [Rep.

If the jury up to this time had been left in doubt touching the view of the court as to how they should find upon this question of vital importance to the defendant, certainly they could doubt no longer, for not only was the opinion of the court thus communicated to them, but the opinion of the court was in effect asserted to be in accordance with common sense, reason and the evidence.

This, undoubtedly, had the effect of causing the jury to feel that they were in some measure at least relieved from the necessity of estimating for themselves the full value of the evidence bearing upon the probable truthfulness or untruthfulness of the evidence of the woman Fitzgerald as given upon the trial, and, therefore, was material error. (McKenna v. People, 81’ N. Y. 360.) We think the charge of the court, in the respects pointed out, presents such error as calls for a reversal of the judgment.

The judgment and order should be reversed and a new trial ordered.

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

Judgment and order reversed; new trial ordered.


text:
    Canadian Agricultural Coal, etc., Co., Respondent, v. Joseph L. Spofford, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Jacob Hirschfield, Appellant, v. Adolph Kalischer, Respondent.
   Motion granted.


author: Per Curiam:

text:
    La Societé Anonyme de L’Union des Papeteries, Respondent, v. Samuel M. Marks and Jules Meyer, Appellants.
   Per Curiam:

Judgment and order affirmed, with costs, on the opinion delivered on the former appeal and reported in 50 N. Y. St. Repr. 497 and 21 N. Y. Supp. 706.


text:
    Edith E. Tinker, Appellant, v. Metropolitan Elevated Railway Company, Respondent.
   Motion denied.


text:
    Caroline S. Wilkinson, Respondent, v. Henry E. Davis, Administrator, Appellant.
   Judgment affirmed, with costs.

Per Curiam:

This action was brought upon an agreement made with the plaintiff by the defendant to pay a certain sum for rooms and board with no deduction in case of absence, to recover the amount agreed to be paid, less the amount received. There is no dispute as to the facts. The plaintiff was entitled to recover what the defendant agreed to pay, and there was no question in the case as tp profits. The judgment should be affirmed, with costs.

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


text:
    New York and Brooklyn Ferry Company, Appellant, v. The Mayor, etc., Respondent.
   Judgment affirmed, with costs, on opinion upon previous appeal.


text:
    Elizin V. Foote, Respondent, v. Metropolitan Elevated Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Miles M. O’Brien and Another, Appellants, v. Hugh J. Grant, as Receiver, etc., Respondent.
   Judgment affirmed, with costs,* on opinion of court below.


text:
    Joseph B. Schram v. Henry Werner and Others.
   The case having been resettled a new argument may be had.


author: Follett, J.:

text:
    William T. Standen, Appellant, v. William L. Brown, Respondent.
   Judgment affirmed, with costs.—

Follett, J.:

The Special Term fofind as a fact that the transactions were not loans by the defendant to the plaintiff, but were sales by the plaintiff to the defendant, and that the securities mentioned in the assignments and the three bonds given by plaintiff to clef end-ant were for the purpose of guaranteeing the payment of the bonds and mortgages sold to defendant. The plaintiff filed exceptions to the facts found by the Special Term and to its conclusions of law. The only question involved on this appeal is whether tlie findings are contrary to the weight of evidence. The fact that ic was recited in all of the assignments that the bonds and mortgages wero assigned by the plaintiff to the defendant “ as collateral security’’for the payment of the bond of even elate, is strong evidence that the three transactions wero loans instead of purchases. Again, the fifteen bonds and mortgages assigned July 28, 1892, amount, without interest from their dates to July 28, 1892, to $10,216.57, while the bond given by plaintiff to defendant was for $10,000, and the check given by him to’ plaintiff was for $9,800, making a discount of $416.67, besides accrued interest on the securities. The nine bonds and mortgages assigned by the plaintiff to the defendant September 6, 1892, amount, without interest from their dates to September 8, 1892, to $3,376/67. The bond given by the plaintiff to the defendant on this transaction was for the same amount, and tlie plaintiff’s check was for $8,300, making a discount of $70.67, aside from accrued interest on the securities. The par value of the three shares of stock assigned by the plaintiff to the defendant October 18,1892, was $1,800. The plaintiff received from the defendant $1,590, and gave his bond for $1,623.33, making a discount of $33.33. It will be observed that the first bond is less by $216.67 and the accrued interest than the amount seemed by the first fifteen bonds and mortgages. If the transaction was a sale and guaranty of payment of the securities sold, it is difficult bo see why the purchaser did not execute a guaranty of the payment of the bonds and mortgages, principal and interest. The second transaction is not open to this criticism, though the bond taken is not equal to the principal and interest of the nine mortgages assigned. In respect to the third transaction, it does not appear that the value of the three shares of stock was agreed upon, or oven discussed between the parties, winch is usual when a sale is made. The plaintiff swore positively that the three transactions were loans, and that the three assignments were, as recited in them, intended as collateral security for the payment of the sums loaned. In this he was corroboratedby Charles M. Marvin, who was present at the first and second transactions. This witness testified that the agreement was that the plaintiff should pay the defendant a bonus of two per cent in addition to the legal rate of interest, and that the two transactions were loans. In opposition to this the defendant testified that the transactions were not loans, but were purchases of the securities assigned and that the bonds were taken as guaranties of the payment of the securities assigned. Exactly how the payment of the three shares of stock was or could be guaranteed is not explained. In a letter written bytheplain- . tiff September 12,1893, to the defendant’s attorneys, reference is made to a letter written by them to him September 11,1893. Unfortunately the letter of the eleventh was not put in evidence. In the plaintiff’s letter he says: “ When these transactions were made it was certainly understood that this was only an indirect way to the purchase by Colonel Brown of the numerous little mortgages which I held, and it was done in this way in order that tlie colonel might not be bothered with the collection of small amounts of interest. but might look to me for such payments in one sum.” This statement is a strong corroboration of the testimony of the defendant, and we regard it as of sufficient probative force to sustain the finding of the learned trial judge who had tlie witnesses before him and had an opportunity to observe their manner. The judgment should be affirmed, with costs,

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


text:
    Aaron M. Klaw, Plaintiff, v. Samuel W. Ehrich and Another, Defendants.
   Plaintiff’s exceptions sustained and new trial granted, with costs to plaintiff to abide event.—

Follett, J.:

No exceptions were taken to the admission or exclusion of evidence, and the only questions presented on this motion are those raised by the plaintiff’s exceptions to the dismissal of the complaint and the refusal of the court to submit to the jury the question whether the plaintiff was discharged by the defendants. The plaintiff testified, and in this he was not disputed, “ My duties (from January 1 to April 1, 1892) were to direct the interior working of the business, to see that the employees did their duties, and to take charge of the office and the office force of the employees in the office.” On the 1st of April, 1892, Samuel W. Ehrich, one of the defendants, wrote the plaintiff stating, in effect, that his services had not been profitable and “taking it altogether, as a uestion of self-interest, I feel as though it oes not pay us to have you fill your present position, and I feel entirely .too friendly toward you to have you sacrifice your time, with the knowledge that there is no future for you with us. So if we can bring our relations to a close in a manner thoroughly pleasant and agreeable to yourself, I should like to do so.” On the following day the plaintiff and Samuel W. Ehrich had an interview, in which he said to the plaintiff, “No, the expenses of the business are high. Mr. Leghorn is going to stay and be superintendent, and I am going to put Mr. Mansfield in the office, and I am willing to make some sacrifice, but I want you to have the best of feeling towards the house and think of me personally as a-of a good fellow.” Mr. Mansfield was the superintendent and Mr. Leghorn was the assistant superintendent of defendants’ business. Later in the day of April second, the defendants wrote the plaintiff as follows: u Agreeable to our conversation of this afternoon, will you kindly get your memorandum, papers and desk ready to turn over to Mr. Mansfield on Monday.” On Monday another conversation occurred in which the defendants said: “How will $500 strike you as a fair thing ? ” The plaintiff replied that he preferred to carry outliis contract, and on the same day he wrote the defendants to that effect. Later in the day Samuel W. Ehrich came to the plaintiff’s desk and the following occurred: “ I (Samuel W. Ehrich) want you to get your papers ready to give up your desk to Mr. Mansfield to-day. I (plaintiff) did not reply to that and he went away. In the afternoon of that day, about five o'clock, Mr. Sporburg, one of the employees of the house, comes in and said that Mr. Samuel W. Ehrich told him to tell me t>o give him the keys of my desk.” Later in the day the plaintiff delivered to Mr. Samuel •/. Ehrich the keys, who replied, “All right.” The next morning the plaintiff went to defendants’ store and found Mr. Mansfield occupying the desk which he had previously occupied. On this occasion both parties spoke of taking legal advice, each claiming to have a good case. On the fifth of April the plaintiff consulted counsel, who wrote the defendants, the letter being delivered by the plaintiff to Mr. Samuel W. Ehrich. On that occasion Mr. Ehrich said, “ You cannot occupy my office. ” The plaintiff asked, “ What have you got for me to do? ” The defendant replied, 111 have nothing for you to do. ’ ’ On the same day the plaintiff wrote the defendants referring to the fact that he had been told that defendants had nothing for him to do. About this time the defendants consulted counsel, and, on the seventh of* April wrote the plaintiff: “ I am willing to give you. the work that your contract calls for, and will give you until to-morrow to present yourself and return to work and do what you are told to do. If you do not by that time return to your duties I shall conclude that you have no wish to do so and prefer to earn your salary by means of a law suit rather than by work.” Other correspondence ensued between the seventh and eleventh which is not . very important, as it, on the part of the plaintiff, simply shows that he was insisting that he had been discharged and the defendants were insisting that he had not been. The litigants, under the advice of their respective counsel, were manoeuvring for advantageous legal positions. On the morning of the eleventh the plaintiff called on the defendants and the following conversation occurred : “ * I (Samuel W. Ehrich) have other and' different work for you to do.’ I said, ‘ I)o you wish to restore me to my original position?’ He said, ‘No, I have got other and different work for you to do and if you don’t want to do it, I think you want to make your money through Blumenstiel & Hirsch instead of working for it. I will give you until two o’clock to-day to consider.’” The plaintiff left the store aíid has not been there since. Considerable other evidence was introduced in behalf of the plaintiff, and taking it altogether it seems to us that it was sufficient to require the submission to the jury of the question whether he was discharged from the defendants’ service, and that the court erred in refusing this request and in dismissing the complaint. The plaintiff’s exceptions should be sustained and his motion for a new trial granted, with costs to him to abide event.

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


author: Yan Brunt, P. J.: Folleto?, J.

text:
    Charles Bloom, Respondent, v. The P. Cox Shoe Manufacturing Company, Appellant.
   Judgment and order affirmed, with costs.

Yan Brunt, P. J.:

This action was brought to recover damages for the breach of a contract of employment whereby the defendant employed the plaintiff as traveling salesman for the period of one year commencing January 1,1892, and expiring January 1,1893, at the agreed salary oi $1,800 per year and expenses. The defendant admitted the making of the contract, but denied that the plaintiff had complied with said contract, and denied that it had refused to carry out its part of the same, and also denied that it had discharged the plaintiff without cause. The real controversy between the parties was as to whether under his contract of employment as traveling salesman the plaintiff was required to sell goods in the city of New York, in which city the defendant already had its representatives. It is urged upon the part of the appellant that the uncontradicted testimony showed that under a contract similar to the one in question it was the custom for salesmen to sell goods at the place of tlieir residence and the place of business of the concern by which they were employed. In this, however, we think that the learned •counsel is mistaken as to the scope of the evidence. There was evidence offered upon the part of the plaintiff in respect to the custom that it was not the custom of the trade for persons who sold goods outside of the city of New York to sell goods in the city, particularly where the house has two representatives in the city. There was also evidence upon the part of the plaintiff tending to show that it was the understanding between the defendant and the plaintiff at the time of his employment that he was not to sell goods in the city of New York, but that he was to travel elsewhere and not to interfere with the business of the other agents of the defendant which they had in the city of New York. Under this state of the evidence the question as to the contract was fairly submitted to the jury and they were informed with clearness as to what the rights of the parties ■would, be thereunder, according as the jury found the contract to be. Various exceptions to the charge arc called to our attention, but none of them seem to be of sufficient importance to call for a reversal of this judgment. At the suggestion of the learned counsel for the appellant, when attention was called to the language of the charge, the jury were reinstructed upon the points taken and no exception was taken to such reinstruction. As to the exceptions to the admissibility of evidence, none of them seems to be of sufficient moment to merit special mention. Judgment and order should be affirmed, with costs. Parker, J., concurred.

Folleto?, J.

(dissenting): The plaintiff was employed for the year 1892 as a traveling salesman on a salary of $1,800 and expenses. He made two extended trips through the South and several short ones in this State, and he sold only $180 worth of goods, his traveling expenses being $350. About this there is no dispute. Afterwards ho was directed to sell in the city of New York and vicinity, which he did for a time, his aggregate sales being $2,120. The defendant desired that he should continue to sell to the trade in New York and Brooklyn, hut the ?laintiff refused, and he was discharged une 24, 18f2. His total sales for six months were $2,300, which cost the defendant in salary and expenses $1,250. The verdict that the plaintiff was a competent salesman and inerl'ormed his contract is contrary to the weight of evidence. In contracts for personal services the incompetency of the employee to perform the service which he has undertaken is a sufficient ground for his discharge. It seems to me that the evidence shows that this plaintiff was either incompetent or unfaithful, and that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.


text:
    Charles G. Stevens v. John L. Melcher.
   See memorandum on settlement of order.

Memorandum for s> ttlemeiit < f order.— First. A reference will not be ordered as to insurance premiums, as those only can be allowed which the record before us shows were paid; second, as to such amounts we understand Mr. Zabriskie’s statement to be correct; third, in respect to the $90,000, the order will be in accordance with the suggestions in Mr. Hoadley’s proposed order; fourth, adopting such course as to the $90,000, there would seem to be no occasion for striking out from the adjudication designated tenth “that the said $100,000 and interest thereon were paid on the 6th day of March, 1894,” but it should be modified by adjudging that said legacy was not fully paid on the 6th day of March, 1894.


text:
    William Robertson and Others, Respondents, v. Alfred Sully, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

No opinion.


author: Per. Curiam:

text:
    Sarah M. Mygatt and Others, Respondents, v. George S. Coe, Appellant.
   Judgment affirmed, with costs.—

Per. Curiam:

This action was brought to recover damages for breach of defendant’s covenants of quiet enjoyment and of warranty. The case has been three times tried, twice appealed to this court and twice to the Court of Appeals. (44 Hun, 31; 124 N. Y. 212; 49 N. Y. St. Repr. 781; 142 N. Y. 78.) In view of the discussion which this case has already provoked, it would serve no useful purpose to ventilate anew either the law or the facts, it being sufficient to say that, apart from previous opinions expressed or the individual views of the members of this court, upon the facts as now found, we must regard the last opinion of the Court of Appeals as controlling in respondents’ favor. Judgment accordingly affirmed, with costs.

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


text:
    In the Matter of Edmund E. Murphy.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Delos McCurdy and Another, Appellants, v. New York Life Insurance and Trust Company, Respondent.
   Judgment affirmed on opinion on previous appeal.


text:
    Max Gabriel and Others, Respondents, v. Shillinger Fire Proof Cement, etc., Company, Appellant.
   Order reversed, with ten dollars costs and disbursements. No opinion.


text:
    Harry G. Southwell, Respondent, v. Margaret Humphrey Undy, etc., Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    William Sander, Respondent, v. New York Elevated Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion.


author: Per Curiam :

text:
    United States Trust Company, Respondent, v. James Drake Black and Others, Appellants.
   Judgment affirmed, with costs.—

Per Curiam :

For the reasons given in Wetmore v. St. Luke's Hospital (56 Hun, 313) the judgment should be affirmed, with costs.


text:
    Jacob W. Frank, Appellant, v. Stephen Olin, Respondent.
   Judgment affirmed, with costs on lormer appeal. Reported below, N. Y. St. Repr. 161.


text:
    Edwin Gomez v. Horatio Gomez.
   Motion denied.


text:
    The People of the State of New York v. George Herm and Another.
   Motion granted.


text:
    Morris C. Mengis, Plaintiff, v. Fifth Avenue Railway Company, Defendant.
   Motion granted on defendant’s giving bond in penalty of $1,000 to indemnify plaintiff against any depreciation of bonds below ninety, their present value.


text:
    In the Matter of Bronx Bank (In re Baldwin).
   Referee’s report confirmed.


text:
    Isaac K. Cohn, as Executor, etc., and Another. Appellants, v. Frederick H. Kellogg and Others, Respondents.
   No notice of motion or order to show cause has been submitted.


text:
    Caroline A. McCready v. William Whaley, as Administrator.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Emory M. Van Tassel, Appellant, v. Greenwich Insurance Company of New York, Respondent.
   Judgment affirmed on opinion on previous appeal.


text:
    Southern Cotton Oil Company, Appellant, v. Prudential Fire Association of New York, Respondent.
   —Judgment affirmed on opinion upon previous appeal.


author: Dykman, J.:

text:
    In the Matter of Laying out a Highway at Tappan in the Town of Orangetown, Rockland County.
   Order applied for granted.—

Dykman, J.:

This is an application under section 90, chapter 560 of the Laws of 1890, for an order confirming an order of the County Court of Rockland county to layout a highway at Tappan in the town of Orangetown in that county. On the 6th day of June, 1893, the petitioners applied to the commissioners of highways of the town of Orangetown to lay out the highway mentioned in the petition set out in the record before us. Before thirty-days thereafter the petitioners, by duly verified petition, applied to the County Court for an order appointing three commissioners to determine upon the necessity of such highway, and in case they found such highway necessary to assess the damages by reason of the laying out thereof. The County Court appointed the commissioners, who made and took the oath of office required by law. Due notice was given of the time and place of meeting. The commission was attended by the parties interested and by the commissioners of highways of the town of Orangetown. They personally examined the highway proosed to be laid out, and they were attended y representatives of the German Masonic Home, the respondents in this proceeding, who appeared personally and by counsel, and took testimony and reduced the same 'to writing on the question of damages. The commissioners then reported to the court that the highway should be laid out, but the County Court declined to confirm the report, holding that under the strict construction of the statute the commissioners should first certify that the highway was necessary. The county judge, therefore, sent the matter back for a further hearing before the same commissioners, who appointed a time and place of hearing, and both questions, that of necessity of the highway and damages to the German Masonic Temple Association, were fully litigated. The commissioners then made a unanimous report to the court, finding that the highway was necessary, and fixing the damages to the German Masonic Temple Association. The commissioners of highways of the town of Orangetown certified to the County Court that in their opinion the highway was necessary. On such certificate and proofs the county judge made an order, bearing date April 30,1894, laying out such highway; that order is under the section above quoted, now presented to this court for confirmation. There is no irregularity in the proceedings, and our examination of the record satisfies us that the public highway in question was necessary, and that the damages awarded to the contestants were sufficient. More than three-fourths of the property through which the proposed road will pass has either been dedicated to the town for such purposes or the owners waive their claims for damages and consent to its construction. It is already constructed by private subscription for three-fourths of its entire length. The road as laid out avoids two dangerous railroad crossings at grade, which in all cases is very desirable. The order applied for should be granted.

Brown, P. J., and Cullen, J., concurred.


text:
    Mamie Brown, as Administratrix, etc., Respondent, v. Royal E. Dean and Another, Appellants.
   —Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.

Cullen, J., recommended affirmance on the authority of Rutherford v. Town of Madrid (77 Hun, 545).


text:
    The People of the State of New York ex rel. Edson Lewis, Appellant, v. Edwin F. Brush and Others, Respondents.
   — Order affirmed, with costs and disbursements, on opinion of Special Term.


text:
    Philip Jacobs and Others v. Joseph Elias and Others and Louis Rubenstein.
   Order affirmed. No opinion.

All concur.


text:
    John Raven v. William R. Smith.
   Motion for re-argument granted.


text:
    Joanna Ditmas and Others, Executors of Henry Clay Ditmas, Respondents, v. Hector M. Hitchings and Others, Executors of Benjamin G. Hitchings, Appellants.
   Judgment affirmed, with costs. No opinion. Brown, P. J'., not sitting.


text:
    Anthony Klemm, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment reversed and new trial ordered, costs to abide event, unless plaintiff stipulates to reduce judgment to $2,500, if such stipulation is filed in twenty days. Judgment so modified affirmed, with costs, on opinion of Dykman, J., on former appeal.


text:
    Thomas N. Avery, Respondent, v. John Duffy, Sheriff of Westchester County, Appellant
   Judgment affirmed, with costs.

All concur.

No opinion.


text:
    Leonard S. Tuthill, Appellant, v. E. Davis Tuthill and Others, as Executors of B. H. Tuthill, Deceased, Respondents.
   Judgment affirmed, with costs.

All concur.

No opinion,


author: Dykman. J.:

text:
    E. Katie Read, Executrix, Respondent, v. Abner Mills, Appellant.
   Judgment affirmed, with costs.-

Dykman. J.:

This is an action to recover for the services and disbursements of a lawyer who is now dead. The cause was tried before a referee who has made a report in favor of the plaintiff upon which a judgment has been entered. The defendant has appealed from the judgment. Without exception the case involved questions of fact only and the referee has made a very careful examination of the testimony. v."e are satisfied with his conclusions both upon the point of law raised and the questions of fact presented. The judgment should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred, and are of opinion that the facts cannot be reviewed for lack of a certificate that the case contains all the evidence.


text:
    In the Matter of the Petition of the Brooklyn Elevated R. R. Company, Relative to Acquiring Title to Real Estate, etc., in Lexington Avenue, Brooklyn. (Lands of Douglass.)
   — Final order affirmed, with costs.—

Dykman, J.:

It does not appear in this case that any erroneous principle of law was adopted by the commissioners in making their award or that any allowance was made for noise. It is not usual for' an appellate court to interfere with awards of commissioners upon the question of damages merely and we find no reason for such interference in this case. The order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Cullen, J., concurred.


text:
    The Whitehill Engine and Pictet Ice Machine Company, Respondent, v. Julius Binz, Appellant. Impleaded, etc.
   — Judgment and order affirmed, with costs.—

Dykman, J.:

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff after a trial at the Circuit, ancl from an order denying a motion for a new trial on the minutes of the court. The action was brought for the recovery of the machinery, pipes ancl other articles which had been used in a brewery at Fort Hamilton. The ownership of the property was in the plaintiff and that fact was undisputed. The principal question litigated has reference to the demand ancl refusal to deliver the property. That question was submitted to the jury and must have been decided in favor of the plaintiff, and there is evidence sufficient to support the verdict upon that point. The same thing may be said respecting the damages, and as we find no error in the record, the judgment ancl order denying the motion for a new trial should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.


text:
    Ida M. Gates, Respondent, v. The New York Recorder Company, Appellant.
   Judgment affirmed, with costs.

All concur.

No opinion.


text:
    Patrick McDermott v. The Brooklyn City Railroad Company.
   Judgment ancl order affirmed, with costs.—

Dykman, J.:

It is the claim of the plaintiff that he has sustained serious pe2*sonal injuries by reason of the negligence of the defendant, while he was in the service of that company assisting in unloading stone from a scow. It appears from the testimony that the stones were in the hold of the scow, and for the purpose of unloading them they were placed in buckets, which, when filled, were raised by a rope suspended from the boom of a derrick, which was standing on the deck near the boat. When the buckets were raised to a sufficient height they were swung over a wagon standing alongside of the boat ready to receive them. It was the duty of the plaintiff to stand in the wagons, receive the buckets as they swung to him andunload the stone into the wagons. He was engaged in the. performance of that duty when he was injured. His claim is that the bucket swung out beyond him and as it swung back it struck him and knocked him off the wagon. The precise claim of negligence is that there was no tag rope attached to the end of the boom; that it was usual to have such a rope with one end fastened to the dock and the other end to the boom, so that when the boom swung over the wagons to unload the buckets, and return it could only swing so far, either off shore or on the land; that while the bucket which injured the plaintiff • was in the air the boat was moved forward, and as there was no tag rope to hold the boom and prevent it from swinging around the mast oif the derrick, the bucket was carried around the mast, and then returned with a sweep and struck the plaintiff. In short, the claim is that the absence of the tag rope caused the injury and that the failure to provide one was negligence, because that rope with sufficient slack only to allow the boom to carry the bucket over the wagon and back to the proper part of the boat would enable the man holding the guide rope to control the movement of the bucket. The defense was two fold. First, that the plaintiff was not in the employ of the defendant, and, second, that his injury .resulted from the carelessness of his fellow-servant. The facts upon which the first defense is based are these: The answer admits the employment of the plaintiff by the defendant. The defendant paid the men employed by Ward. The plaintiff insisted upon the trial that the arrangement with Ward simply authorized him to furnish the machinery, materials and men for the defendant, and the defendant paid them and could discharge them at will. They were all the servants of the company. The trial judge left the question to the jury as one of fact, in the following language: “ So I leave it to you to say, whether the doing of this work was under the direction and control of the Brooklyn City Railroad Company or not. If you find that it was, and that this foreman was acting for the Brooklyn City Railroad Company, then the question arises whether he was negligent in having this boat moved forward with this boom without a tag rope ; that is all the question of negli- 4 gence that there is in this case. You have4 heal’d one witness say that it is usual for derricks to have a tag rope fastened to its end, and the other end of the rope fastened to the dock, so that as the boom goes into the dock to unload the bucket and swing hack it can only swing back so far, probably lengthwise of the boat and not continue to swing. The difficulty with this boom was, it did not swing out beyond and hit this man, but having swung out beyond, it swung back to the dock with increased velocity, so that the man with the guide rope could not hold it, and so struck him on the wagon and knocked him off. vi as there any negligence in the foreman’s moving this boat forward with the boom liable to swing in this way, and if the men did pull it along the dock a few feet as they stated, did that cause this boom to swing out in the way it has been said ? ” Again, he said: “If you find that the defendant was in control and direction of this work, and moved this boat forward, the question comes down m the case to that and that alone, so far as I can see, whether it was a negligent thing to move the boat forward without having a tag rope on the boom.1’ Again, the trial judge said in his charge: “Thereis no way to fasten negligence on the company unless you find that they have not furnished the sort of appliances they should have furnished, if they were the ones that furnished this thing at all; you will have first to find that tíiey were in control of it and did it.” “Mr. Whitehouse — I ask your honor to charge that if the jury find the derrick and the -.work they were on was under the charge and control of an independent contractor, Ward and his men, the defendant cannot he held liable.” The Court — “I so charge.” There was no exception to the charge. The claim of negligence on the part of a fellow-servant is-based upon the order of the foreman to move the boat forward at the particular time he did, before the wagon was loaded. The plaintiff answers that contention by saying, that movement of the boat would have been harmless if the tag rope had been in use. We think these questions required the submission of the case to the jury, and the verdict is supported by facts which we must assume were found by the jury, The judgment and order denying the motion for a new trial on the minutes of the court should lie affirmed.

Brown, P. J., and Cullen, J.,i concurred,


text:
    August Nitch, Respondent, v. American Central Insurance Company, Appellant.
   — Judgment affirmed.

All concur.

No opinion.


text:
    Richard A. Roberts v. New York and New England Railroad Company.
   Re-argument ordered.


author: Brown, P. J.: Dykman, J.

text:
    Newbold T. Lawrence and Others, Appellants, v. The Town of Hempstead, Respondent.
   Brown, P. J.:

In this ease I concur with the ■ views expressed by Justice Pratt in his opinion written 011 the former argument. The judgment must, therefore, be reversed, and there must be a new trial, with costs to abide the event. In this conclusion Justice Pratt concurs.

Dykman, J.

(dissenting): This is an action to quiet the title to a large tract of land in Queens, county and prevent interference therewith by the defendant. Starting with the title to the land in the town of Hemp-stead, by virtue of a grant from William Kief t, the Dutch Governor of the New Netherlands, to the Rev. Robert Fordham and others, dated November 16,1644, confirmed by a patent from the English Governor, Thomas Dongan, dated April 17, 1685, the plaintiff assumed the burden of proving title out of the defendant and in himself. For the purpose of sustaining the burden thus assumed, the plaintiff introduced an order, known in the case as the fencing order,made at a town meeting of the town or Hempstead on the 17th day of April, 1659, and a quitclaim deed from from fifty-eight persons to Jacob Hicks, dated June 7, 1725. Giving to the fencing order and the deed the force and effect claimed for them by the plaintiff, we cannot find (hat they embrace the land in question. The designation of the premises in the order and deed is quite too general and uncertain to constitute a basis for a judgment in favor of the plaintiff. It is essential zo the validity of a grant that the premises upon which it is to operate must he so described therein that they can he identified, and if the intention of the parties cannot be discovered the conveyance is inoperative. (Coleman v. Manhattan Beach Co., 94 N. Y. 232; Jackson v. Rosevelt, 13 Johns. 97; Perk v. Mallams, 10 N. Y. 509.) As that uncertainty seems to he an insuperable obstacle in the way of the plaintiff, further examination is rendered unnecessary. The judgment should be affirmed, with costs.


text:
    In the Matter of Petition of the Brooklyn Elevated Railroad Company Relative to Acquiring Title to Land, etc., on Lexington Avenue, Brooklyn. (Lands of Poellman.)
   Final order affirmed, with costs.—

Dykman, J.:

It does not appear in this case that any erroneous principle was adopted by the commissioners in making their award, or that any allowance was made for noise. It is not usual for an appellate court to interfere with awards of commissioners upon the question of damages merely, and we find no reason for such interference in this case. The order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Cullen, J., concurred.


text:
    In the Matter of the Petition of Ann P. R. Kirkland for the Revocation of Letters of Administration Issued to T. Chesley Richardson and James H Moran, Administrators, on Estate of Thomas Richardson, Deceased.
   Order of the surrogate affirmed.

All concur.

No opinion.


text:
    William R. Hersberger, Respondent, v. Rowland L. Barton and Others, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.

Haight, J., absent.


text:
    Daniel W. Jones, Respondent, v. William R. Crum and Others, Appellants.
   Judgment appealed from reversed and new trial granted, costs to abide the event on decision of the same case in 25 N. Y. St. Repr. 771; S. C., 6 N. Y. Supp. 388.

Lewis, J., not sitting.


text:
    Henry Walbbaum, Plaintiff, v. The James Cunningham Sons & Co., Defendant.
   Plain-' tiff’s motion for a new trial denied and judgment ordered for the defendant on the non-

suit.

Bradley, J., not sitting.


text:
    Baxter Simmons and Others, Appellants, v. Myron L. Burrall, as Executors, etc., Respondents.
   —Appeal dismissed, without costs to either party upon stipulation of the attorneys.


text:
    Olney Dean, Respondent, v. City of Niagara Falls, Appellant.
   Judgment appealed from affirmed.

Haight, J., absent.


text:
    Carrie Vogel, Respondent, v. Libbie Miller, as Executrix, etc., Appellant.
   Judgment and order appealed from affirmed.


text:
    David Wright, Respondent, v. James Shanahan, as Superintendent of Public Works of the State of New York, and James Shanahan, Appellants.
   Judgment appealed from affirmed, with costs, without prejudice to a motion at Special Term to conform the judgment to the decision of the trial court.


text:
    William H. Ketchum, Respondent, v. Eugene E. Lewis, Appellant.
   Judgment appealed from affirmed, with costs.


text:
    Simpson D. Travis and Others, Appellants, v. The Board of Supervisors of Allegany County and Others, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Emma Blanchard, Appellant, v. Amos J. Tompkins, Respondent.
   Judgment of the County Court of Chautauqua county appealed from affirmed.


text:
    William H. Scott and Others, Appellants, v. Andes Lown and Another, Respondents.
   Judgment and order appealed from affirmed.


text:
    Patrick Riley, Appellant, v. Elijah Hallett, Respondent.
   Judgment appealed from affirmed on the principle adjudicated in Evarts v. Kiehl (102 N. Y. 296).

Bradley, J. dissenting.


text:
    The First National Bank of Salem, Appellant, v. Joseph Davis, Respondent.
   Judgment appealed from affirmed.


text:
    Patrick V. Byrnes, Respondent, v. Juliette S. Lewis, Appellant.
   Order modified by striking out all except the third provision thereof, Nad, as so modified, affirmed, without costs of this appeal to either party. (See opinion in Patrick V. Byrnes, Respondent, v. Henry N. Lewis, Appellant, reported, ante, p. 310.)


text:
    Patrick V. Byrnes, Respondent, v. M. Fannie Lewis, Appellant.
   Order reversed and motion denied, with ten dollars costs and disbursements. (See opinion in Patrick V. Byrnes, Respondent, v. Henry N. Lewis, Appellant, reported, ante, p. 310.)


text:
    Patrick V. Byrnes, Respondent, v. Nellie Lewis, Appellant.
   Order modified by striking out the second provision thereof, and as so modified affirmed, without costs of this appeal to either party. (See opinion in Patrick V. Byrne, Respondent, v. Henry N. Lewis, Appellant, reported, ante, p. 310.)


text:
    John F. Hafner, Respondent, v. Emma L. Hafner, Appellant.
   Judgment appealed from affirmed.


text:
    Marion J. Palmer, Appellant, v. Wesley D. Leonard, Respondent.
   Judgment of the County Court of Steuben county appealed from affirmed.


text:
    Martha Braman, Respondent, v. William E. Stevens and Others, Executors, etc., Appellants.
   Motion for re-argument denied.


text:
    Charlotte Thon, Respondent, v. The Rochester Railway Company, Appellant.
   Motion for re-argument denied. Lewis, J., not voting.

Bradley, J., not sitting.


text:
    Thomas J. Reynolds, Appellant, v. Theodore F. Romeyn, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    M. Fillmore Brown, Respondent, v. Harvey F. Remington, Appellant, Impleaded, etc.
   Interlocutory judgment appealed from affirmed, with costs against the defendant Remington, with leave to him to answer within twenty days on payment of the costs of the demurrer and of this appeal.


text:
    Mills W. Barse and Others, Respondents, v. John P. Williams, Appellant.
   Motion to dismiss appeal granted, with costs.


text:
    Frank H. Lovell, Respondent, v. George W. Jacobi, Appellant. Same, Respondent, v. Same, Appellant.
   Motions to dismiss appeals granted, with ten dollars costs in one case only.


text:
    The Empire State Savings Bank of Buffalo v. Daniel Beard and Others.
   Motion for certificate to enable the defendant to appeal to the Court of Appeals granted.


text:
    Hymen Bloom and Others v. National United Benefit Savings and Loan Company.
   Motion to amend the memorandum of decisions by inserting therein that the reversal of the judgment and new trial were upon questions of fact as well as of law, granted. If, by reason of the amendment, the plaintiffs shall desire to discontinue the appeal to the Court of Appeals they may do so without costs.


text:
    Thomas B. Norris, Appellant, v. Herbert A. Jones and Another, Respondents.
   —Motion for leave to appeal to the Court of Appeals denied.


text:
    M. Fillmore Brown, Respondent v. Harvey F. Remington and Another, Appellants.
   Motion to dismiss appeal granted, with ten dollars costs against the defendant Remington.


text:
    The People of the State of New York v. Carl Oettenger.
   Motion to amend memorandum of decision denied.


text:
    Henry F. Craig and Another v. Frank J. Butler.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    George B. Dalton, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant
   Motion for leave to appeal to the Court of Appeals denied.