author: Lewis, L:

text:
    Florence A. Smith, Plaintiff, v. The City of Rochester, Defendant.

      Chapter of the city of Rochester — notice to an official of the defective condition of a street.

    'The notice provided in the charter of the city of Rochester, to be given certain authorities of such city of the defective condition of its streets before the city can be chargeable with damages resulting therefrom, is not required to be written or verbal; it is sufficient if the defective condition of the walk be actually brought to the knowledge of a proper official a sufficient length of time prior to the happening of an accident to enable the city, by reasonable diligence, to remedy the defect prior to the happening of the accident.
    Upon the trial of an action brought to recover damages for injuries sustained by the plaintiif by reason of a fall upon the sidewalk of a city, the charter of which provided that the city should not be liable for injuries caused by defective sidewalks unless actual notice of the unsafe or dangerous condition thereof had been given to the city officers having charge of its highways a reasonable time before the happening of such injury, one of the persons having charge of the highways of said city testified that he had passed over a temporary sidewalk constructed at the place in question on two or three occasions prior to the accident; that he had observed that the proprietor of the premises abutting upon the sidewalk had somewhat obstructed the driveway in the street, and had deposited certain articles between the temporary sidewalk and the curbing; that he gave such proprietor notice to remove such obstructions; that he did observe that there was a temporary walk over the excavation in the sidewalk, but did not pay any particular attention to it, and did not know that the planks thereof had not been spiked down; that he did not see anything unusual about the walk and had no knowledge, information or intelligence as to its being out of order.

      Meld, that the evidence failed to show that such person had actual knowledge of the defect in the sidewalk.
    Motion by the plaintiff, Florence A. Smith, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance after a judgment of nonsuit directed by the court upon a trial before the court and a jury at the Monroe Circuit.

      Walter T. Hubbell, for the motion.

      O. D. Kiehel, opposed.
   Lewis, L:

This is an action brought to recover damages for bodily injuries sustained by the plaintiff while walking upon a sidewalk in the city of Rochester.

The plaintiff claims that her injuries-were caused by the sidewalk being out of repair. An abutting owner in making some repairs had removed the stone walk in front of his premises. He excavated the earth underneath, and constructed a temporary sidewalk over the excavation of sufficient length and width, and in the manner that such walks are ordinarily constructed. The defect consisted in his not having spiked the planks down. They had by use become separated from each other at the time the plaintiff was injured, and in attempting to cross over the walk she stepped into the opening between the planks and was quite seriously injured.

The charter of the city provided that the city should not be liable for injuries caused by defective sidewalks, unless an actual notice of the unsafe or dangerous condition thereof had been given to the city officers having charge of the highways a reasonable time before the happening of any such injury.

This is the second time this case has been before this court upon appeal. .The material facts of the case are fully stated in the opinion of Justice Macombeb, on the former appeal. (46 N. Y. St. Repr. 727.) We then held that a sidewalk inspector was not a,city officer having charge of the highways of the city, and that a notice to that officer was not a sufficient notice under the provisions of the charter to charge the city. The supervision of the streets of the city is by the charter given to an executive board of three members elected by the electors of the city. The members of the board are the commissioners of the highways of the city.

The plaintiff upon the second trial attempted to prove the required notice to the executive board of the defect in the sidewalk by the testimony of Mr. Armbruster. He was a member of the executive board prior to and at the time of the accident. Did the plaintiff succeed in proving the notice ? It was sufficient if the defective condition of the walk was actually brought to the knowledge of Armbruster for a sufficient length of time prior to the accident to'have enabled the city authorities by reasonable diligence to have remedied the defect in the walk. It must not necessarily have been a written or verbal notice. (McNally v. City of Cohoes, 127 N. Y. 353.)

Armbruster testified that he was, at the time, a member of the board and that he had passed over the temporary walk on two or three occasions, prior to the accident; he had observed that the proprietor of tlie premises had somewhat obstructed the driveway in the street, and had deposited dirt, barrels and other articles between the temporary sidewalk and the curbing, and he gave him notice to remove these obstructions; that he did observe that there was a temporary walk over the excavation in the sidewalk, but that he did not pay any particular attention to it, and did not notice or know that the planks had not been spiked down; that he did not see anything unusual about the walk and had no knowledge, information or intelligence as to its being out of order.

The trial court held that the evidence failed to establish the notice required by the charter. It was not sufficient for the plaintiff to show that Mr. Armbruster was negligent in not discovering the defects, but under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Armbruster had actual knowledge of the defect. This, we think, the evidence failed to establish, and that being a condition to the plaintiff’s right to recover, she was properly nonsuited.

The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    In the Matter of the Real Estate of Samuel Lawrence, Deceased.

      Application to sell real estate for the payment of a testator's debts — order of sale— real estate referred to in Code of Giril Procedure, section 0763.
    The real estate referred to in section 0763 of the Code of Civil Procedure, as. devised and not sold, is that property remaining unsold of a particular devisee, who may have conveyed a portion only of the estate devised to him, and does, not include the real estate of other devisees who have not conveyed the property devised to them.
    A decedent by his last will and testament devised two pieces of real estate, one to his son and directed that the proceeds of the sale of the other be held in trust for his daughter. A petition was thereafter made for the sale of the testator’s-real estate in payment of his debts, the debt on which the application was made being a liability of the testator upon an accommodation indorsement made for his son, to whom one of the pieces of real estate was devised.

      Held, that the property devised to the son should be primarily charged with the debt.
    Appeal by Philander Mott and another, parties interested in the estate of Samuel Lawrence, deceased, from a decree of the Surrogate’s Court of the county of Wayne, entered in the office of the Wayne County Surrogate’s Court on the 14th day of August, 1893, decreeing that certain real estate of the deceased be sold for the payment of debts.
    Samuel Lawrence died in May, 1890, leaving his will, which was admitted to probate July 21, 1890; by it he devised to his son, Isaac J. Lawrence, to whom letters testamentary were issued, a farm situated in Ontario county, consisting of 122 acres, appraised at the valuation of $6,025 ; he directed the executor to sell all the rest of his estate, real and personal, and out of the avails he bequeathed to him '$4,000 in trust to invest the same and pay the interest or income of it annually to his daughter, Mary Jane Werne, during her life, if sufficient for her support, and if not sufficient, to apply to the like purpose so much of the principal sum as should be necessary, and on her death he bequeathed whatever remained of thp fund to her next of kin, and he devised and bequeathed the residue of his estate to his daughter, Mary J. Werne, and others named in his will.
    The testator also died seized of a house and lot situated in the county of Wayne. This was of the appraised value of $2,000.
    In February, 1890, the son, Isaac J. Lawrence, made his note for $2,500, which was indorsed by the testator. The latter was after-wards charged with liability as indorser, and at the time of his death only $500 had been paid upon the note. His personal property was insufficient to pay his debts, and Pliny D. Sexton, the holder of the note, filed his petition in March, 1893, for the sale of the real property of which the testator died seized, for the payment of his debts.
    The surrogate directed that the Ontario farm be first sold, and, unless the proceeds of it were sufficient to pay the debts, that the premises in Wayne county then be sold for the like purpose.
    In December, 1890, Isaac J. Lawrence, by mortgage, conveyed the' Ontario county farm to Philander Mott to secure the payment ■of $5,000. In May, 1891, he, by deed, conveyed that farm to Mary E. Lawrence, his wife.
    In July, 1891, he and his wife conveyed the farm to the Marine Rank of Buffalo, N. Y., by mortgage, to secure the payment of ¡$1,500; and in August, 1891, he and his wife, by mortgage, conveyed it to the Maryland Fertilizing Manufacturing Company, to secure the j>ayment of $4,000.
    In July, 1891, he and his wife conveyed the house and lot in Wayne county to M. L. Malcolm, as collateral security for certain notes made by him to Baldwin ; and afterwards, he and his wife, by ■deed, conveyed this Wayne property to Mary J. Werne.
    William Mott filed exception to the finding and conclusion of the surrogate that the. premises in Ontario county should first be charged ■and sold for the payment of petitioner’s claim. George Mott filed ¡no exception.

      JS. K. Bwrnham,, for the appellants.

      EL Et. Durfee, for the respondents Werne and Tuttle.

      Charles Mclouth, for the petitioner, respondent.
   Bradley, J.:

The appeal is from so much of the surrogate’s decree as directs that the farm in Ontario county be first charged with the payment of the debt due to the petitioner, and on the part of the appellants it is insisted that such direction is in violation of the statute, which provides: Where the decree directs the sale of two or more distinct parcels of real property, of which the decedent died seized, * * * the decree may direct the sale to be made in the order which the surrogate deems just, unless it appears that one or more distinct parcels, of which the decedent died seized, have been devised by him or sold by his heirs, in which case the several distinct parcels must be sold in the following order:

(1) Property which descended to the decedent’s heirs and has not been sold by them.
“ (2) Property so descended which has been sold by them.
(3) Property which has been devised and has not been sold by the devisee.
“ (4) Property so devised which has been sold by the devisee.” (Code Civ. Proc. § 2763.)

The testator died seized of two parcels only of real property. As neither of them descended to his heirs, the first and second clauses of that section have no application to the present case.

The farm in Ontario county was devised to the son, Isaac J. Lawrence. He by mortgage conveyed it to the appellant, William Mott. For that reason it is urged that it is taken from the operation of the third clause and comes within the fourth, and that it is not chargeable with the payment of the debts of the decedent until after the Wayne county premises have been sold and the proceeds of the sale found to be insufficient to pay the debts. By the will the testator intended to give his daughter, Mrs. Werne, and her next of kin the benefit of the Wayne property, and for that purpose he directed that it and all his estate, other than the Ontario farm, be sold, and the proceeds, to the amount of $4,000, be held by his executor in trust, as there directed, for his daughter and her next of kin.

And although this direction to sell the Wayne property for the purposes of the trust was an equitable conversion of it into personalty, the daughter and her next of kin were made the beneficiaries of the will as to that property as effectually as if it had been devised to them. The grant of the house and lot by the executor to secure the payment of his debt was not within the power of sale given to him. The Ontario county farm devised to the son was conveyed by him within the meaning of the statute. And the question arises whether it is entitled to such construction as to primarily charge the Wayne premises with the payment of the debts of the decedent. Such effect given to the statute would seem to work injustice, and as the consequence might charge the burden upon one of the several devisees if he alone had not conveyed property devised to him, as he could then have only the personal liability of the other devisees for indemnity, and such remedy might be of no value for that purpose. The section of the Code referred to is a substitute for the previous statute, which provided that the order should specify the lands to be sold, and the surrogate might direct the order in which several tracts should be sold, and should order that the part descending to heirs be sold before that devised, “ and if it appear that any lands devised' or descended have been sold by the heirs or devisees, then the lands remaining in their hands unsold shall be ordered to be first sold.” (2 R. S. 103, § 20.)

While the language of section 2763 of the Code may, be susceptible of a construction somewhat different from that of the provisions of the Revised Statutes, it may be supposed that the intent was that it should in its purpose and effect be substantially the same. The fair and equitable construction of the statute would seem to be such as to import that the property referred to as devised and not sold is that remaining unsold of the particular devisee, who may have conveyed a portion only of the estate devised to him, and not that of the other devisees, who have pot conveyed the property devised to them. This is a reasonable view of the construction of the statute and was that taken of such provision of the Revised Statutes in Matter of Clark (3 Redf. 225).

Any other construction of the present statute might, as has been observed, have the effect to primarily charge the entire debts of a. decedent upon the property devised to one of several devisees. This it cannot be assumed was in the contemplation of the statute,, nor does its language necessarily require a construction which may be promotive of such injustice in its practical operation.

There is a further consideration which equity will recognize as between the beneficiaries of the two properties.

The debt upon which the petition is founded is that of Isaac J. Lawrence, the devisee of the Ontario county farm. The liability of ‘the decedent arose from his relation as accommodation indorser of the note by which the debt is evidenced.

Upon equitable principles applicable to such relation the property devised to Isaac J. Lawrence should be primarily charged with the debt in this proceeding. And in the view taken of the statute it was within the power of the surrogate to determine that the sale of the lands be made in the order directed by the decree.

The decree of the surrogate should, therefore, be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Decree of the Surrogate’s Court of Wayne county appealed from affirmed, with costs to the respondent.


author: Dwight, P. J.:

text:
    Walter B. Fargo, Respondent, v. Charles Owen, Appellant.

      Tower of attorney to collect rents, etc. — right of the attorney thereunder to bring suits for the collection of rent in his own name.

      A power of attorney was made under tlie hands and seals of five devisees of real estate to the sixth devisee thereof, which in the usual form made, constituted and appointed him their true and lawful attorney for them and in their name, place and stead, to take charge of, manage and care for all the real estate therein mentioned, to make leases of the same as might be needful and to collect the rents. It contained the usual grant of full power and authority to do all things necessary to be done in the premises, as fully, to all intents and purposes, as they might or could do if personally present, and it granted the power of substitution and ratified and confirmed in advance “all that our said attorney or his substitute shall lawfully do or cause to be done by virtue thereof.” There was no special reference therein to the bringing of actions.
    An action was brought in the name of the attorney to collect the rent of certain premises orally leased by said attorney in his own behalf and in behalf of his co-devisees.

      Meld, that such power of attorney created an express trust, and that an action for rent could he maintained by the attorney in his own name without joining with him any of the persons for whose benefit the action was prosecuted ;
    ‘That the words “in our name, place and stead” did not limit but conferred authority upon the attorney;
    That the authority of the attorney to bring suits .for the collection of rents was to be inferred from his authority to collect rents and to protect the property from loss and damage.
    Appeal by the defendant, Charles Owen, from a judgment of the County Court of the county of Wyoming in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming ■on the 12th day of January, 1894, upon the decision of the court affirming the judgment of á justice of the peace of the town of Warsaw, Wyoming county.

      M M. Bcvrtlett, for the appellant.

      T. W. Brown, for the respondent.
   Dwight, P. J.:

The action was to recover rent of a house and lot in the village of Warsaw, under an oral contract made by the plaintiff with the defendant. The title to the property was in six devisees of one Allen Fargo, deceased, of whom the plaintiff was one, and he had a, general power of attorney from the other five to manage, care for, lease and collect the rents of all the real estate of which Allen Fargo-was the owner at the time of his death in the town of Warsaw. He made the oral lease in question to the defendant, in behalf of himself and the other owners, and he brought this action in his own name. The only question presented by this appeal is, whether-, by virtue of his power of attorney, the plaintiff was entitled to bring and maintain the action in his own name, as the trustee of an express trust, under section 449 of the Oode of Civil Procedure.

The power of attorney was under the hands and seals of the several devisees, other than the plaintiff, and, in the usual form, it made, constituted and appointed the plaintiff their true and lawful attorney for them and in their name, place and stead to take charge of, manage and care for all the real estate as above, to make leases of the same as might he needful and to collect the rents. It contained the usual grant of full power and authority to their said attorney to do all things necessary to be done in the premises, as fully, to all intents and purposes, as they might or could do if personally present ; it granted the power of substitution and ratified and confirmed in advance “ all that our said attorney or his substitute shall lawfully do or cause to be done by virtue thereof.”

There can be no stronger instance of an express trust than that furnished by this instrument, and the case is, so far, undoubtedly brought within both the general provision and the particular definition of section 449 (supra). The provision is that “A trustee of an express trust * * * may sue without joining with him the person for whose benefit the action is prosecuted; ” and the definition is that “A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust, within the meaning of this section.”

But the contention on the part of the appellant is that, by the express terms of the power of attorney, the authority of the plaintiff was limited to acts to be done in the nrnne of his principals, the language being “ in our name, place and stead.” The argument is-based upon a very narrow construction of the instrument. The words. u in our name ” do not limit but confer authority. By virtue of this authority the attorney may use the names of his principals in. (executing leases and other contracts and giving receipts and acquittances. There is no special reference in the instrument to the bringing of actions. Authority for that purpose is to be inferred from the authority to collect rents and to protect the property from loss and damage, but there is no purpose to prescribe the manner in which the authority shall be exercised; that is to be governed by the law and the rules of procedure. The power of attorney creates an express trust, and, in doing so, confers upon the trustee the authority, in matters of form, which by law pertains to that relation. Under the special authority of the power of attorney the plaintiff may, undoubtedly, bring an action in the name of his principals, but he is not thereby deprived of the general authority which is conferred by statute upon every trustee of an express trust.

There was no error in the ruling of the justice denying the defendant’s motion for a nonsuit, and the verdict of the jury determined all other questions raised on the trial.

The judgment of the County Court affirming that entered on the verdict must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment of the County Court of Wyoming county appealed from affirmed, with costs.


author: Adams, J.:

text:
    The Eastman Kodak Company, Respondent, v. Henry M. Reichenbach and Others, Appellants.

      Invention, defined — secret process — its use, when open to the woi'ld, when restrained by a court of equity.

    The actual creative act of an inventor is recognized as an invention, although he may have called to his assistance the ideas and creations of other parties, provided such ideas and creations are so used as to achieve new results.
    When an article manufactured by some secret process, which is not the subject of a patent, is thrown upon the market, the whole world is at liberty to discover what that process is, if it can do so by any fair means, and, when the discovery is thus made, to employ in the manufacture of similar articles the knowledge gained by such discovery; when that is done, the inventor’s or manufacturer’s property in his process is gone.
    When, however, knowledge of such secret process is obtained by any breach of confidence, courts of equity will enjoin the use of such knowledge by parties acquiring the same in that manner.

      Where a person, is the owner of valuable trade secrets, which were either discovered by an' employee, or necessarily disclosed to him while occupying a confidential relation towards the owner, and such employee has agreed to give his employer the exclusive property in and control over such inventions, and there.after, in violation of such agreement, undertakes to make use of the same in ,guch a manner as to materially injure his employer’s business, a court of equity will grant relief and enjoin the employee from making use of such knowledge to the prejudice of his employer.
    Appeal by the defendants, Henry M. Reichenbach and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of April, 1893, upon the decision of the court rendered after a trial at the Monroe Special Term enjoining and restraining the defendants from using or in any manner divulging or imparting any knowledge or information acquired by them in regard to certain processes, formulae and appliances belonging to the plaintiff.
    The plaintiff, as stated by the court at Special Term, brings this action to restrain the defendants from using or in any manner disclosing or imparting to any one any secret or information as to any processes or formulae used by the plaintiff in its business of manufacturing photographic supplies, and especially in its business of making emulsion and film, which had been imparted to or acquired or discovered by them while in the employ of the plaintiff or its predecessors in business. The plaintiff is, and since the 5th day of December, 1889, has been, a corporation duly organized, and as such was and is engaged in the business of manufacturing and selling Kodak cameras, photographic films and papers, dry plates and other material and apparatus used in the art of photography, it having succeeded the Eastman Dry Plate Company in the conduct of this business. The defendants were in the employ of the plaintiff, holding responsible and lucrative positions. They were men of education, skill and experience in their respective departments, and their services were of great value to the plaintiff, in whose interests, it is claimed, they, or two of them, Reichenbach and Passavant, had made certain discoveries and inventions which were of great'value and which were unknown to the world at large.
    While thus employed by the plaintiff the defendants organized a new company, with a large capital, for the purpose of engaging in the same business as that carried on by the plaintiff, and issued a prospectus of their enterprise, in which the announcement was made that the “ Corona Camera Company ” had been incorporated for the manufacture and sale of “ photographic novelties and specialties,” which announcement was followed by a list of some of the leading {< specialties and novelties ” which it was proposed to manufacture and sell. Among the articles thus enumerated were a “ Corona film ” and a “ bromide paper,” the latter of which, it was stated in the prospectus, the projectors of the new company were peculiarly prepared to place upon the market by reason of “ having manufactured and sold it for a manufacturer that, has, at present, the market monopoly.” Upon entering the service of the plaintiff, or its predecessor, the defendants Keichenbach and Passavant executed a written contract by the terms of which it was stipulated that they and each of them should assign and transfer to the company all inventions, discoveries or improvements in photography which they respectively might make, discover or invent while in its employ. There is also evidence tending to show that outside of these contracts it was stipulated on the part of these defendants that they should regard their relation to the company as strictly confidential, and that they should not disclose or make improper use of any •secrets of the business. The defendant Milburn occupied the position of traveling salesman for the plaintiff, and, while in one sense his relation to the company was confidential in its character, he had not the same opportunities as the others to acquire information respecting its secret operations — that is, he was not engaged in ■experimental or formulative investigations.
    The plaintiff, upon learning of the intentions of the defendants respecting the formation of a new company, and upon having the contents of their prospectus brought to its notice, discharged them from its employ, and then resorted to a court of equity for the relief which it seeks to obtain through the medium of this action.

      Theodore Bacon, for the appellants.

      Walter 8. JTubbell, for the respondent.
    Judgment appealed from affirmed, with costs on the opinion of Adams, J., at Special Term.
   The opinion of the Special Term was as follows:

Adams, J.:

This case is invested with questions so interesting, and with consequences so important to all the parties interested,, as to fully justify the large expenditure of time and labor which has characterized the trial and submission of the same; and, as introductory to-any discussion of the facts or law, the court desires to acknowledge-its obligations to counsel for the very elaborate and careful briefs-which have been submitted and which in their arrangement of facts and reference to precedents have been helpful beyond measure.

It would seem that an orderly and intelligent disposition of the case can best be accomplished by a review of the several questions-of fact involved, in substantially the same connection as they are. presented by the pleadings; and, therefore, the one which demands consideration at the outset relates to the matter of valuable secrets, of trade, which the plaintiff claims to be the owner of. Did the. plaintiff possess such secrets, processes and appliances, and were the same discovered or invented by the defendants, or either of them, or imparted to them, while occupying confidential relations, with the. plaintiff ?

That this proposition must be met with an affirmative answer is practically admitted by the defendants, for the very specific allega-'tions upon this branch of the case, which are contained in the plaintiff’s complaint, are put in issue but partially, if at all, by the somewhat evasive denial that “ all of the inventions made by the defendants, or either of them, belong to or are the exclusive property of the. plaintiff.” But, aside from this concession, the very nature of the business in which the plaintiff is engaged suggests processes, appliances, substances and methods, which must, of necessity, depend for their successful use and operation upon the enforcement of the utmost secrecy; and the fact that this plaintiff has established and is now conducting this extensive and remunerative business, is of itself evidence so strong as almost to require the court to take judicial notice that discoveries and inventions unknown to the public at. ■ large constitute the foundation upon which that business rests. It would be useless to indulge in a further expenditure of time upon a proposition so self-evident, and it must be assumed, therefore, that the plaintiff is and was at the time defendants were in its employ, the owner of inventions, discoveries and secrets which were its own-special property and to which great value attached.

That these inventions or discoveries were (some of them, at least)’ made by two of the defendants is, as has just been shown, also a-conceded fact, and that these same defendants possessed knowledge; as to all of them, which was regarded as confidential in 'its nature,, is abundantly established by the evidence in the case. As illustrative of this proposition may be cited those portions of the testimony which show the care and pains which were taken by the defendants-to conceal from the curious public, and even from the knowledge of' them co-employees, the several processes employed to obtain certain, results. Again, men employed in one department were not allowed, to go into another department. Ingredients employed in compounding certain mixtures were guarded by lock and key, and the-various formulae were given only to those whose business it was to-use them. It would be absurd to claim that the defendants could have; been conscious of the precautions thus taken to hedge in the plaintiff’s business affairs, without understanding very clearly the meaning of it all, and no conclusion, consistent with sound reason, can be’ indulged in, other than that which is contended for by the plaintiff,, viz., that it was the possessor of certain valuable trade secrets which. were confidentially known by or disclosed to the defendants Reichenbach and Passavant.

But, however satisfactorily this fact is mad£ to appear, another,, and an equally important one, is, in my judgment, made quite, as apparent, and that is, that one or both the parties just named,, while in plaintiff’s service, made certain valuable discoveries which,, under the terms of their employment and by the strict letter of their contract, plaintiff was entitled to the benefit of. As has already been suggested, both Reichenbach and Passavant were chemists of skill and experience. The services of the former were sufficiently valuable to command a salary of $5,000 per annum, in addition to which he had been presented by the company with a quantity of its stock, upon the sale of which he had realized nearly $20,000. Pas-savant was receiving a salary of $2,500, and both were intrusted with duties and responsibilities of the most delicate and confidential character. Among these duties was that of constantly experimenting, with a view to improving the products of the establish.ment, and these, experiments were continually developing new results which the company was entitled to the sole enjoyment of. This much of the plaintiff’s claim is, as I understand it, conceded, but defendants now insist that these results were not in the nature of discoveries, because all the agencies employed to produce them, and even the particular properties of these agencies, or some of them, were already known to the scientific mind; and it is argued that nothing can be invented which already exists, nor can anything be said to be discovered the existence of which is already known. This argument is true, to a certain extent, but it has its limitations. To illustrate, it cannot be truly stated that Alexander Bell invented or discovered electricity, but it may be said, without fear of contradiction, that he did invent the telephone, although it was known long before his day that by means of a continuous current of electricity, both vibration and sound could be transmitted over considerable distances. Again, the existence of aluminum, and its value in the industrial arts, has long been known, but its use has to a very great ■extent been prevented by the expense involved in its production; •and it is within a very recent period that chemists have been able to devise methods by which it can be extracted from the clay so •cheaply as to admit of its extensive use. However well known the substance may have been, or the chemicals by the use of which such a result has been accomplished, it cannot be denied that this was a hew and valuable discovery. So, in regard to some of the inventions or discoveries claimed as property by the plaintiff. They were ■obtained by compounding certain well-known ingredients, possessing well-defined properties, but in such a manner as to produce new results, and these results were found to be useful in the manufacture ■ of photographic instruments and supplies, to such an extent as to give the plaintiff great advantage over its competitors. Perhaps the • composition which will best illustrate the idea sought to be conveyed, is that which is referred to in the evidence as the “doctor.”

The principal ingredient of this composition is an article known the world over as saponin, and it is likewise a well-known scientific fact that saponin is useful for the removal of grease. In a certain foreign periodical known as The British Journal of Photography, under date of February 13, 1885, appeared an article .suggesting that this substance might be used with good effect in photography. The plaintiff, in its attempt to manufacture a superior article of bromide paper and photographic plates, had experienced considerable difficulty from spots appearing upon the surface of the paper and plates, which were thought by some to be occasioned by grease, while others entertained different theories respecting them.. After reading the article above mentioned, which referred only in a general sort of a way to the use of saponin in photography, without, specifying that it might have the effect of freeing gelatine emulsion from fat or grease, Reichenbach conceived the idea of employing it. for that purpose, and after numerous experiments in which this substance was compounded with others in different proportions, the desired result was obtained, the spots disappeared from the plates and paper, the plaintiff had a remedy for these defects which no rival manufacturer possessed, and the “doctor” came into existence. So important was this result regarded that it was kept under lock and key, and lest it should be discovered by other manufacturers the different ingredients composing it were purchased in the name of a third party. Under these circumstances can it be claimed that the “ doctor ” is neither a discovery, an invention, nor a valuable secret ?

And what is here said respecting this particular substance applies with equal force to some of the other articles claimed by plaintiff to be invested with a proprietary character. The machine used for washing emulgion, although termed by Reichenbach an ordinary washing machine,” turns out to be something more than that. In other words, it is an “ ordinary washing machine ” so altered and remodeled as to serve a new and altogether different purpose from that for which it was originally designed, and when used in connection with a new method of placing the emulsion, which was also the result of experiments made by Reichenbach, it caused a great saving of time and labor. So, too, the formula known as the “ Peerless ” appears from the evidence to be a modification or combination of other formulas which, while doubtless composed of similar ingredients, is so compounded as to produce better results and to give greater satisfaction.' And so I might continue through the entire list of articles named by the plaintiff, and show that in some particular, even though a slight and apparently unimportant one, each of them had its superior characteristics and variations, these characteristics and variations resulting from experiments made by some of plaintiffs officers or agents. But enough has been said to indicate my views respecting this branch of the case, and I am unable to see why they do not coincide with the established rules of all civilized countries respecting inventions and the rights of in venters, the fundamental idea of which is to recognize as an invention the actual creative act of the inventor, although he may have called •to his assistance the ideas and creations of other parties,, provided such ideas and creations are so used as to achieve new results.

The remaining questions of fact relate to the intentions of the defendants and their probable effect upon the plaintiff’s business. That defendants, while in its employ, did organize a new company, which was designed to engage in the same general business as that carried on by the plaintiff, is a fact so clearly established by the proof as to admit of no controversy. Indeed, it is virtually admitted in the answer. It is contended, however, that although it is their design to engage in this business, they do not intend to make use of .any inventions, discoveries or secrets in which the plaintiff has any proprietary interest. The real significance of this contention can be better understood, perhaps, when it is borne in mind that the main effort of the defendants from the very outset has been to show that the plaintiff has no such inventions, discoveries or secrets. It would, therefore, seem to follow, as a logical sequence, that if, as a matter of fact, plaintiff did possess valuable secrets and inventions which were either disclosed or discovered while defendants were in its employ, they were to be made use of by this rival organization. And this, I- think, is the fair construction to be placed upon the acts, language and conduct of the defendants. Their operations were carried on with the utmost secrecy, and their interviews with Millington and Brownell, as detailed by the last-named parties, were almost ludicrous in this particular. Their “ prospectus ” is so constructed as to relieve defendants Reichenbach and Passavant from any liability under their contracts, and to make Milburn the responsible party, but the statements therein contained furnish, nevertheless, indubitable proof that the new company is intended to avail itself of certain trade secrets which, as has' been shown, are the property of plaintiff. To particularize, the “ Corona, film ” referred to, is said to be a cut-sheet sensitive photographic film, made by a ■newprocess ; ” and concerning the bromide paper,” it is represented that the new company is peculiarly strong by reason of the fact that “ we ” have manufactured and sold it for a manufacturer that has, ■at present, the market monopoly.” Now, inasmuch as Reichenbach and Passavant were in plaintiff’s employ when this prospectus was issued, it necessarily follows that the new process ” for manufacturing film and bromide paper was either one that was then in use by plaintiff, or else it was one which had been discovered by them, or one of them, while in plaintiff’s employ, and in either case it was the property of the plaintiff. The probability is that the new process ” is the same as that concerning which so much evidence has been given, and which the defendants now insist is in no sense new.

To briefly summarize, then, the established facts of this case, it appears that the plaintiff is the owner of valuable trade secrets, which were either discovered by one or more of the defendants or necessarily disclosed to them while occupying a confidential relation towards the plaintiff ; that as to such trade secrets as were discovered by either Reichenbach or Passavant, they have undertaken and •agreed to give plaintiff the exclusive property in and control over the same, and that, in violation of this agreement, they are now proposing to make use of them, or some of them, in such a manner as to materially injure the plaintiff’s business.

With these facts established, the application of the legal principles which must govern the disposition of the case does not appear to be a very formidable undertaking. It may be safely assumed at the ■outset, I think, that whatever remedy plaintiff may have does not reside in a court of law. The very nature of the case, the peculiar character of the injury liable to be inflicted, and the incalculable ■damages which may possibly result, all show most conclusively that legal relief is totally inadequate for plaintiff’s protection, and that its only resort must be to a court of equity. The learned counsel for defendants has contended with all the adroitness and skill at his command — which is but another way of saying that such contention has been put forth with all possible adroitness and skill — that this case is not one of which a court of equity can take jurisdiction, and several authorities, of both English and American courts, are cited in support of this claim. I am constrained,, however, to hold that the weight of authority is opposed to his view of the' law.. The question presented is an interesting one, and would justify a somewhat analytical review of the cases which bear upon either aspect of it, did time permit, but for the purposes of this adjudication it will be necessary to advert to such only as are deemed conclusive upon this court.

In Morison v. Moat (9 Hare, 241), which is an English case, it was held that an injunction would issue to restrain the use of a secret in the compounding of a medicine, not being the subject of a patent, and to restrain the sale of such medicine by a party who acquired knowledge of the secret in violation of the contract of the party by whom it was communicated and in breach of trust and confidence. An appeal was taken from the decision of the vice-chancellor, and in 1852 the case was affirmed by the Court of Chancery, and it was there held that there is no doubt whatever that where a party who has a secret in a trade employs persons under contract, either express or implied, or under duty express or implied, those persons cannot gain the knowledge of that secret and then set it up against their employer.” (Morrison v. Moat, 21 L. J. [N. S.] Eq. 248.)

In 1868 the Supreme Court of Massachusetts recognized and followed the authority of Morrison v. Moat, and in the • opinion of Gray, J., the law is thus stated : If a party “ invents or discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, he has not, indeed, an exclusive right to it as against the public, or against those who in good faith acquire a knowledge of it, but he has property in it which a Court of Chancery will protect against one who, in violation of contract and breach of confidence, undertakes to apply it to his own use or to disclose it to third persons. The jurisdiction in equity to interfere by injunction to prevent such a breach of trust, when the injury would be irreparable and the remedy at law inadequate, is well established by authority.” (Peabody v. Norfolk, 98 Mass. 452.) The language above quoted was cited with approval in Saloman v. Hertz (40 N. J. Eq. 400), and it is almost identical with that employed by elementary writers of recognized standing in discussing the same question. Judge Story says: Courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment, and it matters not in suck eases whether the secrets be secrets of trade, or secrets of title, or any other secrets of the party important to his interests.” (2 Story’s Eq. 952. See, also, 1 High on Inj. [2d ed.] 15.)

The same doctrine has obtained in this State for at least half a century, and it has been enunciated by a line of decisions which, with a single exception, is unbroken. (Jarvis v. Peck, 10 Paige, 118; Hammer v. Barnes, 26 How. 174; Champlin v. Stoddart, 30 Hun, 300; Tabor v. Hoffman, 118 N. Y. 30.) The Ohamplin case was decided by the General Term of this department, Smith, P. J., writing the opinion, in the course of which he takes occasion to say that “ a secret of trade is fully recognized in equity as property, the disclosure of which will be restrained by injunction.” By a careful reading of the various decisions upon this subject, it will be seen that some are made to depend upon a breach of an express contract between the parties, while others proceed upon the theory that where a confidential relation exists between two or more parties engaged in a business venture, the law raises an implied 'contract between them that the employee will not divulge any trade secrets imparted to him or discovered by him in the course of his employment, and that a disclosure of such secrets thus acquired is a breach of trust and a violation of good morals, to prevent which a court of equity should intervene. It may also be observed in this connection that the word “ property,” as applied to trade secrets and inventions, has its limitation, for it is undoubtedly true that when an article manufactured by some secret process, which is not the subject of a patent, is thrown upon the market, the whole world is at liberty to discover, if it can, by any fair means, what that process is, and, when discovery is thus made, to employ it in the manufacture of similar articles. In such case the inventor’s or manufacturer’s property in his process is gone, but the authorities all hold that,- while knowledge obtained in this manner is perfectly legitimate, that which is obtained by any breach of confidence cannot be sanctioned; and this distinction is quite forcibly presented in a recent decision of the Court of Appeals, to which the attention of this court has been directed by the supplemental brief of defendants. Judge Landon, in his opinion, speaking of the plaintiff’s claim, says: His case is unlike those in which the injunctive process of the court is sought • to restrain the disclosure of- a secret, or the publication of a letter, which may prove injurious to business or character.” (Bristol v. Equitable Life Assurance Society, 132 N. Y. 264-267.) But, without multiplying citations or prolonging consideration of the legal aspect of this case, it may be said by way of conclusion that the principle contended for by the plaintiff is not only abundantly supported by authority, but is likewise founded on good common sense, and is peculiarly applicable to the case in hand. Here is a party which, by the expenditure of vast sums of money and the exercise of much skill and ingenuity, has built up a large and prosperous business, the capital of which consists largely in certain inventions and discoveries made by its officers, servants and agents. The world at large knows nothing of these inventions and discoveries, because they are locked within the brain of those who conceive them. The defendants, who have been largely instrumental in perfecting them, while under both an express and implied contract to give the plaintiff the benefit of their inventive genius, propose now to disregard their legal and moral obligations by creating a new establishment where these inventions and discoveries may be employed to plaintiff’s serious injury. This is not legitimate competition, which it is always the policy of the law to foster and encourage, but it is contra bonos mores, and constitutes a breach of trust which a court of law — and much more a court of equity — should not tolerate. It follows, therefore, that the plaintiff is entitled to the relief sought by this action, certainly as against the defendants Reichenbach and Passavant; and, as the defendant Milburn has allowed himself to engage in an illegitimate enterprise, with knowledge of or the means of knowing what its operation involves, I can see no good reason why he should not be subjected to the same restraining process as his co-defendants. Judgment is accordingly directed against all •three defendants, with costs of the action.


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    In the Matter of the Application of Feodora Karowney, Appellant, for an Order for the Examination of the Records of The Buffalo Orphan Asylum, Respondent.

      Order granted under section 3 of chapter 438 of 1884 — may be made ex parte — may be vacated on notice — notice of hea/ring thereon may be directed.

    It is within the power of the Supreme Court to grant an order exporte, pursuant to the provisions of section 3 of chapter 438 of the Laws of 1884, which requires the authorities of the Buffalo Orphan Asylum to give to the mother of a child a complete abstract from its records concerning such child, and it is not improper for the court, after granting such order, to make a second order upon the application of such asylum, requiring the person on whose petition the prior order was granted to show cause why such order should not be vacated, and upon the return of the order to show cause to vacate such prior order, with leave to the petitioner to renew her application upon notice to such asylum. While it is the duty of the court, under the provisions of section 3 of chapter 438 of the Laws of 1884, to entertain an application made thereunder, it is within its power to direct such hearing as it shall deem suitable and reasonable before making .a final order therein.
    Appeal by tlie petitioner, Feodora Karowney, from an order of tlie Supreme Court, made at tlie Erie Special Term and entered in tlie office of tlie clerk of tlie county of Erie on the 19th day of March, 1891, vacating and setting aside an order made on the 19th day of February, 1891, directing the Buffalo Orphan Asylum, under the provisions of section 3 of chapter 138 of the Laws of 1881, to give the petitioner a complete extract from the records of said institution of all information in its possession concerning the child of the petitioner.
    Eeodora Karowney presented her petition to the Supreme Court showing that her husband had left tbeir child in the care and custody ■of tlie Buffalo Orphan Asylum under the belief that such child would be cared for until such time as she and her husband would be able to care for tlieir child themselves; that tbereafer slie called ,at the said orplian asylum to secure tbe custody of her child, and was informed by tlie matron of such institution tbat tlie custody and control of tbe said child bad been duly transferred to a person who had adopted it and whose name the matron refused to give. An ■order was prayed for, under tlie provisions of section 3 of chapter 438 of the Laws of 1884, requiring the secretary, president or authorities of the said asylum to give to the said Feodora Karowney or her attorney a complete extract of the records of the institution relating to such child to the end that the mother of the child might ascertain in whose custody it was. Upon such petition and on affidavits an order was made as therein prayed for.
    Thereafter, on the application of the asylum, an order was made requiring that the said Feodora Karowney show cause why such order should not be vacated and staying until the hearing all proceedings under the prior order. Upon the return of such order to show cause the first order granted was vacated and set aside, with leave to Feodora Karowney to renew her application for the relief ashed for in her petition upon giving due notice to the Buffalo Orphan Asylum.

      JEdwa/rd JR. G’JMJalley, for the appellant.

      Carl T. Chester, for Buffalo Orphan Asylum, respondent.
   Bradley, J.:

The order requiring the asylum to give to the petitioner complete extracts from its records concerning her child was made by the court upon her ex pa/rte application.

This was within the power of the court, and the order must be deemed to have been regularly made. But, upon the application of the asylum, the court, in the exercise of its discretion, made an order requiring the petitioner to show cause why the first-mentioned order should not be vacated.

In view of the facts presented, the court thereupon concluded that the case was one in which a hearing should be had upon the merits. The order was, therefore, vacated, with leave to the petitioner to renew her application upon notice to the asylum. It is urged upon the part of the appellant that this was error, for the alleged reason that her right to the relief sought had the support of a mandatory statute.

While it was the duty of the court to entertain her application, it was within its power to direct and have such hearing as should he deemed suitable and reasonable before making a final order. This evidently was the design of the statute, which then provided that, in addition to the request of the person having the requisite relation to the matter, there should be an order of the Supreme Court for the production of extracts from the records relating to a child which had been placed in the asylum. (Laws 1884, chap. 438, § 3.)

It cannot well be supposed that the court in making such an order is not to exercise any judgment in the matter. It is more reasonable to assume that it was contemplated that the court properly could and should inquire into the matter sufficiently to ascertain what are the facts, and to determine whether they are such as to justify or require the making of the order sought for. There may be cases where, upon the facts, applicants are entitled to the orders, and others where, as matter of right, they are not. In the former, orders, of course, would be made, but in the latter, reasons might exist for their denial. "Whether or not the petitioner in the present case is entitled to it, is a question not here for consideration. The order was vacated without any determination of that question, but merely to enable both parties to be heard on a renewal of the application upon notice to the asylum.

The method adopted for such purpose, founded upon the order to show cause, was within the reasonable discretion of the court.

The order appealed from should, therefore, be affirmed, without costs.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order appealed from affirmed, without costs to either party.


author: Rumsey, J.:

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    Richard Miller and Another, Appellants, Impleaded with Winfield Scott Jones, Plaintiff, v. George W. Miller, as Sole Surviving Executor and Trustee, etc., of Andrew Miller, Deceased, and Others, Respondents.

      Will — terms “wife” and “children” defined — action to compel an executors accounting — when costs, payable out of the estate, are properly refused.

    The word “wife” of a man, as that word is used in a will, is presumed to mean the woman to whom he is legally married, and the term “ children” means, in its usual and ordinary significance, legitimate descendants.

      When, in an action brought to compel the accounting of an executor and trustee named in a will by alleged beneficiaries thereunder, it is shown that the plaintiffs therein are not beneficiaries under such will, it is proper to refuse to allow such plaintiffs a bill of costs out of the estate.
    Appeal by the plaintiffs, Richard Miller and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 6th day of April, 1893, upon the decision of the court rendered at the Monroe Special Term dismissing the plaintiffs’ complaint upon the merits and for costs.
    This action was brought by alleged beneficiaries under the will of • Andrew Miller, deceased, to compel the accounting of the executor and trustee in such will named.
    Paragraph first of the testator’s will was as follows :
    “ First. I give and devise all my real estate, lands and tenements of every name and nature and wherever situated, whether in the United States or Canada, to my friends James L. Angle and Freeman Clark, of Rochester, N. Y., and my sons, George "W. Miller and James M. Miller, of the same place, in trust, nevertheless, to sell, dispose of and convey so much thereof as may be necessary to discharge in full my funeral expenses and all my just debts and no more, and to divide the rents and profits of the residue thereof equally between my said two sons, but not to be liable for their debts, in trust for their support and the support of their families during the life of the survivor of my said sons, or if either of them die during that period then my executors hereinafter named are to apply the one-half of the said rents and profits to the support of his wife and children. And if at the decease of the survivor of my said sons they should each leave children them surviving, my said real estate is to be divided into two equal parts, and the one part thereof given to the children of my said son George ~W., and the other part to the children of my said son James M., and if at that period there should be children of only one of my said sons surviving him, then the whole of my said real estate is to be divided equally between them. And it is further provided that if my executors, after the payment of my just debts as aforesaid, shall at any time deem it for the benefit of my estate to sell any portion thereof they may do so, but shall invest the proceeds thereof in the purchase of other real estate for the purposes of the trust above named.”

      M. Fillmore Brown, for the appellant.

      George W. Miller, respondent, in person.
    Judgment appealed from affirmed, with costs, on opinion of Rtjmsey, J., at Special Term.
   The opinion of the Special Term was as follows:

Rumsey, J.:

Upon the proofs there is hardly any claim that James M. Miller was ever married to Margaret Fitzhugh. 'Whatever might have been said on that point when the plaintiffs rested their case, such a. marriage was shown to have been impossible when it was made to appear that the alleged husband had before then been actually married to Eliza Jane Shepard, and that she was living at the time of the trial of this action. The principal part of the cause of action was, therefore, eliminated from the case, and the plaintiffs stand now upon their claim that Margaret Bell and her children are the wife and children of James M. Miller referred to in the will of Andrew Miller., and are the persons intended to be beneficiaries under that name.

In considering this claim we must start with the proposition that the wife of a man is the woman to whom he is legally married, where there is such a person, and that by the term “ children ” is meant, in its usual and ordinary significance, his legitimate descendants. (Mowatt v. Carow, 7 Paige, 328; Shearman v. Angel, 1 Bailey Eq. 351; 23 Am. Dec. 166.) In the highest English court it has been said and decided that the word “ children ” in a will means prima facie “legitimate children,” as much so as if the word “ legitimate ” had been introduced before it, unless, when the facts are ascertained, some repugnancy or inconsistency would result from so interpreting it. The probable intention of the testator cannot be taken into account. (Dorin v. Dorin, L. R. [7 H. L. Cas.] 568. See, also, Paul v. Children, L. R. [12 Eq.] 16.)

It is plain that the will contains no expression or description which will point to or identify Margaret Fitzhugh or her children as the persons referred to as the “ wife and children ” of J ames M. Miller. But the plaintiffs claim that if there are no legitimate children it is competent to prove the situation of testator’s family to show that in the particular case he used the term “ children ” to mean natural children. If that rule is applied here the question will be, what has been made to appear with regard to Andrew Millér’s knowledge of the relations between his son and this woman, and whether, from the facts so appearing, there arises any presumption that he intended to provide for them under the description of the “ wife and children ” of his son.

While it is clear that there were improper relations between James M. Miller and Margaret Eitzhugh in Rochester in 1856, there . is no evidence except her own that the person with whom she lived as her husband there or in Hamilton was James M., the son of Andrew Miller. Mr. David Jones knew James M. Miller, and he saw him and Margaret together in 1862 or 1863, when they brought the plaintiff to W. I. Jones to be kept. It may be inferred from that testimony that the intimacy between James M. and Margaret still continued, and that he acknowledged that child as his. But with that exception not one witness was shown, except the alleged wife, who, ■having known James M. Miller, could or did say that it was he who lived with this woman as her husband. They said that she was called Mrs. Miller, but their evidence as to her alleged husband entirely fails to identify him. Mrs. Roth saw him go there, but she never saw him to his face and she did not know James M. Miller and never saw the man she supposed was he until she saw him at Ontario street. Mrs. Edernan saw the alleged husband there, but she never knew James M. Miller and cannot identify him. Mrs. Tierney never saw any man there. These are all the witnesses who speak of the association of James M. and Margaret. They all lived in Rochester and they knew nothing of the life of these people in Hamilton. It is noticeable that they give no description of James M. Miller, and there is nothing.to show that he was the person who lived with Margaret on Ontario street, so far as their evidence goes. They were not shown the picture which Mrs. Bell identified as that of the father of her children, and which hung in her parlor in her house in Hamilton. Whether or not it was James M. Miller with whom she lived on Ontario street, there is no pretense that his father, Andrew Miller, knew of the intimacy, or of the children, or anything about it. This is the only important matter with regard to that period of the lives of these two people, and this must all the time be borne in mind.

But when we come to the life in Hamilton the evidence is still more meagre. It is to be remembered that the plaintiffs try to show that this woman and James M. Miller lived in that city as man and wife for several years; that a family of children grew up there; that she was recognized as his wife, and that Andrew Miller knew all this, recognized the children as his grandchildren, and had that familiarity with and affection for them which raises a presumption that he had them in mind when he made his will and intended to provide for them.

It is apparent from the evidence in the case that James M. Miller was well known in Hamilton. His father had property there and spent much time in the city, as did James also. His brother lived there with his family at the very time that it is asserted that James and Margaret lived there as man and wife. It is strange that not one person of all those who must have seen these persons and Andrew Miller in the same house, and associating together, is brought here to prove it, if it took place. The plaintiffs say their cohabitation was open and notorious; that it was legitimate and proper, and so recognized by the parents of James, and yet not one person of all in that city is brought to swear that these people even lived there together. It is a strange failure of proof on a vital point. So this important matter stands solely upon the testimony of interested witnesses, and, in the last analysis, the only evidence there is to show that the person with whom she lived in Hamilton was James M. Miller, or that the older man was Andrew Miller, is that furnished by Margaret Fitzhugh.

Her eldest child, born in 1857, was only six years old when Andrew Miller died. None of the children pretend to say anything about him. They say that there was an old man there who paid some attention to them, but who he was they do not pretend to say. So with their father. They saw him seldom. Those who describe him say he resembled the picture produced, and that they were told this was a picture of their father. All this amounts to nothing aside from the testimony of Mrs. Bell. So the whole case of the plaintiffs to bring them within the will hinges on her testimony. Aside from the fact that she has a deep interest in this action, her character, as shown by this testimony, is not such as to enhance her credit. But that point need not be discussed. Her testimony is-, that James M. Miller lived with her as her husband in several houses in Hamilton, some of them owned by his father. She says that the-man who lived with her there was the man whose picture is produced on the trial. This picture was on the wall, and she said it. was the picture of her children’s father, and told them so, and Richard swears it resembles the man whom he called his father. Mrs. Bell swears it was James M. Miller’s picture, and that he gave-it to her. Now, if there is anything established in this case, it is that that picture is not the portrait of James M. Miller. No one swears, that it was except Mrs. Bell. Mr. David Jones, a witness for the. plaintiffs, the only one besides Mrs. Bell who knew James M. Miller, was not shown the picture. On the part of defendant, three men who-knew James M. Miller testified that the picture was that of another-man, and not of him. James M. Miller lived in Rochester many years. There were, I doubt not, a very large number of people in that city who could have told whether or not the picture resembled him or was his portrait. As none of them were called it is fair to assume-that the fact that it was his likeness was disputed. The overthrow of that important part of Mrs. Bell’s testimony strikes a fatal blow at her credibility. If the man she lived with in Hamilton was not: James M. Miller, the plaintiffs’ case is at an end.

So, if she is wrong in her statement that the old man who played, with the children in her rooms was Andrew Miller, the case-miserably fails. If the man she then lived with was not James, of course the old man was not James’ father. To suppose that he. would visit his son’s paramour while she was living with another man is absurd. There is not one particle of evidence to support her claim that this old man was the testator. No witness ever heard him speak of this woman or of these children. No other person than she-ever saw him there. He made them no presents. He was not with them in the street. No one says he took them anywhere. There is, not one tittle of evidence that he knew them, except the testimony of this woman, discredited by her history, not probable in itself, and. totally uncorroborated. It is incredible that Andrew Miller should, have visited these people so frequently and familiarly without someone of Mrs. Bell’s friends seeing him there or some one of his; acquaintances hearing him speak of them. In the absence of some testimony of this kind or of some other kind to bolster up the testimony of Mrs. Bell, I would not feel at liberty to accept it as decisive of an important case. Unless it is accepted there is nothing to show that Mr. Miller knew of these children or had any regard for them or intended to refer to them when he made the devise for the benefit of the wife and children of his son James. The plaintiffs’ claim that they are beneficiaries under the will, therefore, falls to the ground. Then their case fails. There can be no reason for giving them costs out of the estate. They have no more right to bring an action for construction of the will of Andrew Miller than for the construction of the will of A. T. Stewart. Indeed, the complaint divulges no such object. The action is purely and simply to get one-half of Andrew Miller’s estate. The fact that they have failed to get what they prayed for affords no reason why the true owners of the estate should be compelled to pay to them a premium for their efforts to deplete it by way of a bill of costs.

Whatever claim these people might have had in justice to share in James M. Miller’s estate, they surely have none in that of his father,, who was in no way responsible for them or chargeable with them..

The award of costs must follow the usual rule.


text:
    Louis F. W. Arend, Respondent, v. Fremont C. Laing, Appellant.

      Doctrine of mutuality — right to compel specific performance of a.contract for the sal& of land — when such contract will be reformed.

    Equity accords the relief of specific performance to the vendor in an executory contract for the sale of land on the principle of mutuality. The vendee, in such, a contract, would, without such remedy of specific performance, be without adequate redress in case of the refusal of his vendor to convey, and since the vendee may have his suit for specific performance, the vendor must be equally entitled to it, notwithstanding his right to bring an action at law for the purchase money.
    In respect to the reformation of such contract, the vendee may undoubtedly (where there has been a mutual mistake in regard to the number of acres to be-sold, at a certain price per acre, and consequently in the price to be paid for the whole) have such mistake corrected by a reformation of the contract, andón the principle of mutuality the vendor, who desires to reform his contract, according to its intent, may have the same relief in equity upon making a corresponding readjustment of the price to be paid to him under the contract.

      Appeal by the defendant, Fremont O. Laing, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of September, 1893, upon the decision of the court rendered at the Erie Special Term overruling the defendant’s demurrer to the ■ complaint, and also from an order entered in said clerk’s office on the 27th day of September, 1893, overruling the defendant’s demurrer to the complaint, with notice of an intention to bring up for review on such appeal the said judgment and order,

      Philvp A. JLcmig, for the appellant.

      E. L. Pwrlcer, for the respondent.
   Dwight, P. J.:

The action was by the vendor for the reformation and specific performance of an executory contract for the sale of land. The reformation desired is in the statement of the number of acres contained 'in the premises to be conveyed, and in the total price, and the installments to be paid therefor. In the contract the premises are ■described (1) by four boundaries • — ■ two of which are public highways ; one is a lot line and the other the land of an adjoining proprietor ; (2) by name — “ known as the J. Bescli farm,” and (3) as ■the premises intended to be conveyed by a certain deed — citing the book and page of its record in Erie county. They are also described as containing fifty and seven hundred and nine one-thousandth acres ■of land. The price to be paid is stated at $875 per acre; the total price is computed accordingly at $44,370.37, and the contract specifies the times and mode of payment of the several installments into which that sum is divided.

After setting out the contract the complaint alleges that the statement therein, that the premises contain fifty and seven hundred and nine one-thousandth acres of land, was by the mutual mistake of the parties, whereas, in fact, they contain only forty-six and seven hundred and thirteen one-thousandth acres, and the relief sought is that the contract be reformed so as to conform to the fact in this respect, and that the amount of the total price and of the several installments to be paid be correspondingly reduced, and that the plaintiff have judgment for the specific performance of the contract .as so reformed.

The complaint also alleges default ■ on the part of the defendant, and that, upon the discovery of the mistake of fact above mentioned, the plaintiff informed the defendant thereof, and offered to reduce, proportionately, the purchase price and the several payments mentioned in the contract, and he repeats the same offer by his complaint.

The defendant demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was, no doubt, properly overruled.

Equity accords the relief of specific performance to the vendor in an executory contract for the sale of land on the principle of mutuality. The vendee in such a contract, but for that relief in equity, would be without adequate remedy in case of refusal of his vendor to convey; and since he may have his suit for specific performance, the vendor must be equally entitled to it, notwithstanding his action at law for the purchase money. And so in respect to reformation; the vendee may, undoubtedly, have a mutual mistake in respect to the number of acres to be sold, at a certain price per acre — and, consequently, in the price to be paid for the whole — corrected by a reformation of the contract; and so, on the principle of mutuality, the vendor who desires to perform his contract according to its intent may have the same relief in equity upon offering at the same time to do equity by making a corresponding reduction in the price to be paid to him. (Hill v. Buckley, 17 Ves. Jr. 394; Voorhees v. De Meyer, 2 Barb. 37; Paine v. Upton, 87 N. Y. 327, 331-333.)

In this case there would seem but little question, on the face of the contract, as to the intent of the parties, viz., to contract for the purchase and sale of the land contained within the four boundaries mentioned, known as the J. Besch farm, and conveyed by the recorded deed to which reference was made; and that the exact quantity of land so contained was a secondary consideration and to be controlled by the previous descriptions. It is also to be inferred from the price per acre agreed to be paid that the land so purchased was no longer to be employed as a farm, or, for any purpose, in a single parcel, but was to be plotted and sold in city lots. And in this there is some reason at least for supposing that the precise number of acres was not an essential element of the transaction.

Ve think there is no serious criticism to be made of this complaint ■on tbe ground stated.

Tbe judgment appealed from must be affirmed, with costs, but with leave to defendant to withdraw demurrer and answer over in “twenty days on payment of costs of tbe demurrer and of this appeal.

Lewis, Haight and Bradley, JJ., concurred.

So ordered.


author: Dwi&ht, P. J.:

text:
    In the Matter of Continuing a Mechanic’s Lien Against Gould Coupler Company.

      Order continuing a mechanic's lien — not affected by the fact that the lienor has commenced an action at law — dv/ration of a lien that has been continued — § 6 of chap. 342 of 1885. (
    Under the provisions of section 6 of chapter 342 of the Laws of 1885, the holder of a mechanic’s lien has the option during its continuance of either commencing an action and filing a Us pendens to enforce his lien or of obtaining an order continuing such lien.
    The statute does not prescribe the case which must be made by a person applying for an order continuing a mechanic’s lien in order to entitle him to such order; and any case is sufficient which moves the court, in the exercise of a reasonable discretion, to interpose for the preservation of the rights of the parties.
    The fact that a lienor has chosen his remedy by an action at law does not affect his right to continue his lien, as he may, at any time before the satisfaction, of the judgment in such action, resort to the foreclosure of his lien, which is a cumulative remedy.
    Every continuance of a mechanic’s lien under chapter 342 of the Laws of 1885, granted by a court, is regarded as limited in duration by the general provision of the section (to which the provision for the continuance is only an incident), that no lien shall hind the property described for a longer period than one year from the filing of the notice of lien, which, in case of the continuance of a lien, begins with the making of a new docket. Every continued lien, therefore, like every original lien, carries its own limitation with it by virtue of the statute.
    Appeal by tbe Gould Coupler Company from an order of tbe ^Supreme Court, made at tbe Erie Special Term and entered in tbe •office of tbe clerk of tbe county of Erie on the 2d day of March, 1894, continuing a mechanic’s lien agreeably to section 6 of chapter •342 of tbe Laws of 1885.

      J. G. Milburn, for the appellant.

      J. M. Ohipman, for the claimants, respondents.
   Dwi&ht, P. J.:

The motion, which resulted in the order appealed from, was made under the provisions of section 6 of chapter 342 of the Laws of 1885. The section, as printed and punctuated in the Session Laws, reads as follows: “No lien provided for in this act shall bind the property therein described, for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same; and if the action is in a court of record, a notice of the pendency of such action is filed with the county clerk of the county in which such notice of lien is filed, containing the names of the parties to the action, the object of the action, and a description of the premises affected thereby, and the time of filing the notice of lien. Or unless an order be made by a court of record continuing such lien, and a new docket be made stating such fact. And when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant, who is a claimant within the provisions of this act. The neglect to file the notice of pendency, provided for by this act, shall not abate any action which may be pending to enforce the lien, but such action may be prosecuted to judgment against the person or persons, firm or firms, corporation or association liable for the debt.” Here is, evidently, some mis-punctuation. The alternative clause introduced by the disjunctive “ or ” near the middle of the section cannot have been intended as a complete sentence as it is made to read. It was clearly intended to provide an alternative either to the commencement of an action or to the filing of a notice of the pendency of an action mentioned in the earlier part of the section. In the former case the holder of the lien, during its continuance, has the option to commence an action to enforce his lien, or to obtain an order of continuance; in the latter case he must first commence an action to enforce his lien, and may then either file a notice of lis pendens or apply to the court for an order. The former construction is in accordance with the contention of the holders of the lien — respondents here; the latter with that of the appellant. We are inclined to think that the former contention is correct.

The statute of 1885 is an act of revision, covering the whole subject of mechanics’ liens, and applying to the whole State, including the city of New York ; and the section (6) quoted above is apparently the result of several experiments with the statute in different forms, in force at different times in that city. Thus, the first provision contained in any of our statutes for continuing the lien beyond one year was made in the act for the city of New York in 1863, where, by section 11 of chapter 500 of the laws of that year, it was provided that such lien might be continued by an order of the court and a redoeketing of the lien. This statute was superseded in 1875 by chapter 379 of the laws of that year which, by section 8, substituted action. commenced and notice of pendency filed, for the order of the court. In 1882 the statute — still for the city of New York — introduced the alternative of the two modes previously tried, viz., action commenced and notice of Us pendens filed, on the one'hand, and, on the other hand, an order of the court. Such we take to be the effect of the provision referred to of the act of 1882' (Chap. 410, § 1812), which reads as follows: “ Liens shall in all cases cease after one year from date of filing, unless an action shall be commenced and a notice of Us pendens filed with the clerk of the county wherein the premises are situated, or an order made' continuing the lien for another year; in the latter case the county clerk shall, upon filing such order, make a new docket of such lien. Successive orders and new dockets may be made in the discretion of the court. Where a claimant is made a party defendant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed by him or in his behalf. But the neglect to file such notice shall not abate any action which may be pending to enforce the lien. Such action may be prosecuted to judgment against the persons liable for the debt.” This provision is found in what is known as “ the Consolidation Act,” and was, evidently, intended to give to lienors the benefit of a choice of the two modes of relief prescribed, the one by the statute of 1863, the other by that of 1875 (both supra), the former of which prescribed an order of the court alone, and the latter only an action commenced and notice of pendency filed. Again, in 1883 (by chap. 276 of the laws of that year, § 17) there was a return to the single prescription of an action and notice of its pendency, and lastly, in the Revision Act of 1885, made applicable alike to city and State, the alternative provision was re-enacted almost in the same terms as those quoted above from the act of 1882. "We cannot doubt from this collation and comparison of the several enactments that the alternative provision finally adopted presents the alternative of an action with notice of lis pendens on the one hand, and an order of the court on the other hand.

This view derives confirmation from the language in which the same alternative is stated in subdivision 4 of section 24 of the same act of 1885. The section referred to is entitled Lien, how discharged,” and the subdivision is in the following terms: “4. By the lapse of time. "When one year has elapsed from the time of filing the notice of lien, and no action has been commenced either to enforce such claim or order of the court made continuing said lien as provided in section six of this act.”

We conclude, therefore, that the lienors, respondents in this case, were regular in applying to the court for an order continuing their lien, although no action had been commenced for the enforcement of their lien.

Neither of the statutes prescribing an order of the court define» the case which must be made in order to obtain it. It must be sufficient if it move the court, in the exercise of a reasonable discretion, to interpose for the preservation of the rights of the parties; and such discretion, we think, was not abused in this case. The lienors had commenced an action at law to recover a balance of about §1,200, claimed to be due to them on the contract price of the material which they had sold to the appellant and which had gone into the appellant’s buildings. This they did, as their affidavit shows, because they believed they could bring such an action to judgment sooner than an action in equity to enforce their lien. But the appellant had caused an answer to be put in to their complaint, and the action was still pending, and the expiration of the year from the filing of their lien was approaching, and for the preservation of their lien they desired its continuance pending the determination of the issue joined in such action.

The fact that they had chosen the remedy by an action at law seems not to affect their right to a continuance of their lien. They may still, at any time before satisfaction of the judgment in sucb action, resort to their other remedy, which is conceded to be cumulative (Biershenk v. Stokes, 46 N. Y. St. Repr. 179), viz., by a foreclosure of their lien. (Raven v. Smith, 54 id. 94; 71 Hun, 197.) And, certainly, if the lienor may foreclose his lien, notwithstanding the pendency of an action at law to collect the debt, he may procure a continuance of his lien under the same circumstances.

The order granted an indefinite continuance; probably, because the statute in terms prescribes no limitation for a continuance as such; but we suppose that every continuance granted under this statute is to be regarded as limited in duration by the general provision of the section (to which the provision for a continuance is only an incident), that no lien shall bind the property described for a longer period than one year from the filing of the notice of lien — in case of a continuance, from the making of a new docket. So that every continued lien, like every original lien, carries its own limitation with it, by virtue of the statute.

The order appealed from should be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Haight, J.:

text:
    Joseph Phillips, Respondent, v. Charles H. Covell, Appellant.

      Trespass by cattle — liability therefor — verdict of a justices jury, not set aside to allow the recovery of nominal damages — objections to evidence first taken on appeal.

    It is the duty of the owner of animals to restrain, them from, entering upon the premises of others, and in case of his failure so to do, such owner is liable to respond in damages for the injury done, unless he can show that such entrance by the cattle was effected through the fault of the person claiming to be damaged.
    Where there has been a trial in a Justice’s Court, before a jury, and a verdict has been rendered for the defendant, the judgment will not be reversed on appeal, merely to enable the plaintiff to recover nominal damages, even though the verdict may be against the evidence.
    It is too late on an appeal for a party to urge the incompetency of evidence received without his objection upon the trial of the action.

      Appeal by tlie defendant, diaries H. Coveil, from a judgment of tlie County Court of Wayne county in favor of tlie plaintiff, entered in tlie office of tlie clerk of the county of Wayne on the 20th day of February, 1893, upon the decision of tlie court reversing the judgment of a justice of the peace of the town of Sodus, Wayne county.

      J. IF. Dtmwell, for'the appellant.

      O. II. lim/, for the respondent.
   Haight, J.:

This action was brought to recover damages for trespass on lands.

The plaintiff testified, in substance, that he knew the defendant’s sheep in 1889 ; that they broke into his meadow in 1889, 1891 and 1892 a good many times; there were ninety or one hundred of them; that in 1892 they were in there three weeks, and they broke into his wheat field and meadow. He further testified that he was a farmer and that he knew the worth of the damages done; that they had damaged his meadow to the amount of ten dollars and his wheat five dollars.

His son, Charles Phillips, testified that he saw the sheep in his father’s lot about the 15th of October, 1891; that they were there three or four weeks, and that there were eighty or ninety of them; that he cut háy on sliares, and that on his part he had fourteen loads, and that his father on his part, where the sheep were, had but ten loads; that the sheep were in the meadow after the wheat was up; that he was a judge of the damages done, and that the damages to the meadow were ten dollars and to the wheat five dollars. To the same effect was the testimony of Frank Phillips and Merril Phillips. This was the evidence given on behalf of the plaintiff. No evidence was presented on behalf of the defendant. The jury rendered a verdict in favor of the defendant for no cause of action, upon which judgment was entered. An appeal was taken to the County Court where the judgment was reversed.

The undisputed evidence in the case showed a trespass upon the lands of the plaintiff by the sheep of the defendant variously estimated in numbers from sixty to one hundred. It appears that at times they were upon the meadow lands, and at other times upon the wheat field of the plaintiff, and on one occasion after the wheat was np. It does not appear at what particular place they entered the plaintiff’s inclosure. But, as we understand, it is the duty of the owner of animals to restrain them from entering upon the premises of others, and in case of failure so to do, he is liable to respond in damages for the injury done unless he can show that the entrance was effected through the fault of the person claiming to be damaged; as, for instance, where the entrance was through a defective fence which it was the duty of such person to maintain and keep in repair. (Deyo v. Stewart, 4 Den. 101.)

It is claimed that the plaintiff failed to prove any damages; that the testimony of the witnesses giving their opinion as to the value of the damages was improper and should be disregarded. "Where there has been a trial in a Justice’s Court before a jury and a verdict has been rendered for the defendant, the judgment will not be reversed on appeal merely to enable the plaintiff to recover nominal damages, even though the verdict may be against the evidence. (Stephans v. Wider, 32 N. Y. 351.) So that the question presented is as to whether the plaintiff was entitled to recover more than nominal damages. It is quite possible that the opinion given by the plaintiff’s witnesses would have been incompetent had an objection been taken thereto, but no objection was made, and on an appeal it is too late for the defendant to urge the insufficiency of the evidence which was received without his objection. (Knell v. Stephan, 48 N. Y. St. Repr. 190; McLaughlin v. O’Toole, Id. 682; Mead v. Shea, 92 N. Y. 122-127.)

On referring to the facts, we think enough has been stated to> show that the plaintiff was entitled to more than nominal damages.. The sheep were upon his meadow lands a number of times; they were there from three to four weeks ; one witness says from four to six weeks, and during this time must have pastured thereon. One witness testified that he cut fourteen loads of hay on his part of the meadow, and that his father only cut ten loads on his part where the sheep had been; that they were upon his wheat lot after the wheat was up. The habits of sheep, to run about over the lands- and feed upon that which is growing, are well known and understood. The jurors doubtless had the right to disregard the opinions given by the plaintiff’s witnesses, but in doing so they should have substituted their own judgment as to the damages sustained, and awarded a verdict therefor.

The judgment of the County Court appealed from should be affirmed, with costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment of the County Court of Wayne county appealed from affirmed, with costs.


text:
    Lodemia A. Smith, Appellant, v. Robert Revels, Respondent.

      Building in proem of erection by a contractos' — s'ight of the owner to enter it — action of ejectment — to what cases applicable.

    Where the owner of premises is having a house erected thereupon by a contractor, she has the right to enter upon the premises for the purpose'of seeing what progress is being made in the work, and the manner in which it is being performed, and she has the right to such possession of the property as is consistent with the control thereof which the contractor requires for the work of construction.
    The purpose of an action of ejectment is to enforce a right of entry by a person who, having the right of possession, is excluded from it by another. The remedy may be made use of when the property is such that a judgment can be executed by the delivery to the party entitled thereto, and the retention by him, of the possession thereof.
    Appeal by the plaintiff, Lodemia A. Smith, from an order of the Supreme Court, made at the Cattaraugus Circuit and entered in the office of the clerk of the county of Cattaraugus on the 24th day .of May, 1893, denying the plaintiff’s motion for a new trial made upon the minutes, and for an order setting aside the direction of a non-suit by the court.

      J. I¿. Jewell, for the appellant.

      Henry Dormelly, for the respondent.
   Bradley, J.:

The action is ejectment brought to recover possession of a dwelling house and the land upon which it rests in the village of dean, N. Y. The plaintiff, being the owner of the land, entered into a contract with the defendant September 1, 1892, whereby he undertook to furnish materials and build thereon and complete for her on or before December 1, 1892, a dwelling house for th'e sum of $1,170, payable as follows: $300 when the foundation was built, $300 when the frame was erected, $200 when the plaster was on and dry, $200 when the woodwork was finished, and the residue when the building should be finished and delivered to her free from incumbrance.

The defendant proceeded with the work and some payments were made to him.

The evidence tended to prove that in March, 1893, the defendant called upon the plaintiff for a payment upon the contract and stated to her that the house was finished inside; that the plaintiff exj>ressed a desire to go into the building and see the work and how it was done, before paying him, and for that purpose to take some person in with her to examine it; that while the defendant consented that she could go in with him he refused to permit her to take any one into the house with her, and that afterwards, before the commencement of this action, the plaintiff caused demand to be made of the defendant of the possession of the building and of the keys, to enable her to go into it. This was refused.

The evidence warranted the conclusion that the plaintiff was wrongfully excluded from the building. The premises were hers, the house was being erected by the defendant for her under the contract, and no reason appears for denial to her of the right to enter it for the purpose of seeing what progress had been made in the work and the manner in which it was performed. The plaintiff did not seek to rescind the contract. She had the right to the possession of the property consistently with the control which the defendant had of the work of construction.

It was but reasonable that the plaintiff should, at her pleasure, with proper assistance, inspect the work as it progressed. This she sought to do, and her right to do so was denied, and she was excluded by the defendant.

The purpose of an action of ejectment is to enforce a right of entry, when it exists in real property, by a person who, having the right of possession, is excluded from it by another. And in such case the remedy may be made available when the property is such that judgment can be executed by the delivery of the possession, and it can be held by the party having such right. (Jackson v. Buel, 9 Johns. 298; Rowan v. Kelsey, 18 Barb. 484; 2 Keyes, 594; 4 Abb. Ct. App. Dec. 125.)

It may be assumed that it was in the power of the plaintiff to rescind the contract and take such consequences as should follow, as for breach of it. (Lord v. Thomas, 64 N. Y. 107.)

But she expressed no desire to do that. She asserted the right to the possession, and sought to exercise it in a manner consistently with the continued performance by the defendant of his contract. The suggestion by the defendant’s counsel, that the plaintiff had the possession and the defendant a mere license for the purposes for which the contract was made, does not necessarily aid him if he in fact excluded the plaintiff from the building. He then assumed a relation not consistent with a mere license.

In Child v. Chappell (9 N. Y. 246) the subject of the action was an easement. The defendant there did not exclude the plaintiff, but exercised a right he had of using the wharf in question for certain purposes.

No evidence was introduced on the part of the defense. The facts which the evidence on the part of the plaintiff tended to prove were sufficient to support a recovery by her. The exception to the nonsuit was, therefore, well taken.

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

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order appealed from reversed and a new trial granted, costs to abide the event.