author: By the Court.—Freedman, J. Sanford, J. Curtis, Ch. J.

text:
    JOHN ROSS, Plaintiff, v. ELIZABETH HARDEN, Administratrix, &c., and AMOS H. TROWBRIDGE, Administrator, &c., Defendants.
    EXECUTORS AND ADMINISTRATORS.
    Liability of, in their representative capacity.
    A party who has rendered services to the estate after the death of the testator or intestate, but in pursuance of a contract made with the latter during his life, can recover the value of the same, in an action against the executors or administrators.
    Where such an action has been brought, and a jury found the contract to have been made as claimed by the plaintiff, the verdict cannot be disturbed except for errors of law committed on the trial.
    Where exceptions taken on such a trial are ordered to be heard in the first instance at general term, no question of fact can be considered by the general term; nor the point that the verdict is against the evidence; nor can the verdict be set aside on the ground that it is excessive; and the exception to the decision of the motion for a new trial on the minutes of the court, is also unavailable. The only mode for reviewing such decision is by an appeal from the order denying the motion. (See cases cited in the opinion of the court.)
    EVIDENCE.
    Admissibility of, under § 399, Code.
    In the case at bar the court, against the objection and exception of the defendants, permitted the plaintiff to testify on his own.-, behalf to a conversation and interview with the defendant’s - intestate in regard to the services that he was to perform, and':, which were the subject of this action, upon the theory that the • witness could leave out his own personal share of the conver--sation, and testify only to such part thereof as was had between •= the deceased and another.

      Held, to be error, as such testimony was within the rule exclud-s - ing such transactions and communications (Code, § 399). Cases-cited and commented upon: Simmons v. Sisson, 26 N. Y. 276; . Lobdell v. Lobdell, 36 JY. Y. 333; Cary ®. White, 59 JY. Yi. 338; Brague v. Lord, 41 Buper. Gt. Reports, 193.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided May 8, 1877.

      The action was brought to recover for services rendered to the estate of George Harden, deceased.
    The defense was a general denial.
    The jury rendered a verdict for plaintiff for $7,200, and $1,276.80 interest, total $8,476.80.
    The defendants moved for a new trial on the minutes, on the ground that the verdict was against the evidence and against the charge, and was excessive as to. damages.
    This motion was denied, and defendants excepted.
    The court ordered the exceptions to be heard in the first instance at the general term.

      Geo. W. Lord, for plaintiff.

      Charles A. Davison, for defendants.
   By the Court.—Freedman, J.

The plaintiff seeks to recover for services alleged by the complaint to have been rendered by him to the estate of George Harden, deceased, at the request of George Harden shortly previous to his death, and also at the request of the defendants in their representative capacity.

Such double request could be legally pleaded and proven in the action as brought, provided the contract was, in fact, made by the deceased (Benjamin v. Taylor, 12 Barb. 328).

If, on the other hand, the contract was not made by the deceased, but by the administratrix and administrator, the action should have been brought against the defendants individually, for the rule is well settled that the contracts of executors and administrators, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration moving between the promisee and the executors or administrators as promisors, are the personal contracts of such executors and administrators, and do not bind the estate, notwithstanding the consideration moving from the promisee is such that the executors or administrators could properly have paid for the same from the assets, and been allowed for the expenditure in the settlement of their accounts (Austin v. Munro, 47 N. Y. 360 ; Ferrin v. Myrick, 41 Id. 315; Cary v. Gregory, 38 N. Y. Super. Ct. 127).

Upon the trial no attempt was made to show a contract by the administrators, nor was any evidence given of any promise on their part. Plaintiff confined himself to the establishment of a contract with the deceased and the rendition of services thereunder.

If, in pursuance of a contract thus made, services had been rendered before the death of the deceased, there could be no doubt that the- action was maintainable for their value against the defendants in their representative capacity.

The general rule has been established from very early times, with respect to such personal claims as are founded upon any obligation, contract, debt, covenant, or other duty, that the right of action on which the testator or intestate might have been sued in his lifetime, survives his death, and is enforceable against his executor or administrator. And the revised statutes expressly provide that actions of account, and all other actions upon contract, may be maintained against executors in all cases in which the same might have been maintained against their respective testators. And that administrators shall answer and be accountable to others to whom the estate was holden or bound, in the same manner as executors (2 R. S. 113 ; 3 Rev. St. [5th Ed.] 201, §§ 2, 3). The executors or administrators so completely represent their testator or intestate, with respect to the liabilities above mentioned, that every bond, or covenant, or contract of the deceased includes them, although they are not named in the terms of it (Wentw. Off Ex. [14th Ed.] ch. 11, pp. 239, 243), for the executors or administrators of every person are implied in himself (By Lord Macclesfield in Hyde v. Skinner, 2 P. Wms. 197; Harwood v. Hilliard, 2 Mod. 265).

The next question, therefore, is whether it makes any difference that the services were rendered after the death of, but in pursuance of a contract with, George Harden.

There are many cases in which a liability may accrue against the executor or administrator, after the death of the testator or intestate, upon a contract made in his lifetime, although the executor or administrator be not named therein.

Thus, the executor is liable upon a bond which becomes due, or a note payable subsequently to the death of the testator.

So, if A. be bound to build a house for B. before such a time, and A. die before the time, his executor is bound to perform this contract.

And upon a contract by the decedent for the purchase of land, where the land has not been conveyed to him, nor the purchase money paid, the land contracted for is, in equity, considered as real estate, and as belonging to the heirs of the decedent-; and the unpaid purchase money is primarily chargeable upon his personal estate, and is to be paid by his executors or administrators for the benefit of such heirs.

It is only in cases where the contract is personal to the testator or intestate, that no liability attaches upon the executors or administrators, unless a breach was incurred in the lifetime of the deceased.

Thus, if an author undertakes to compose a work and dies before completing it, his executors are discharged from this contract; for the undertaking is merely personal in its nature, and by the intervention of the contractor’s death, has become impossible to be performed.

So, a covenant by a master for the instruction of his apprentices is personal to the master, and his executors are not liable upon it.

But the covenant on the part of the master for maintenance of the apprentice still continues in force, and, therefore, the executor is liable, as far as he has assets, if he neglects to maintain him.

I am, therefore, of the opinion that the plaintiff is not precluded from maintaining the action as brought by reason of the fact that the services were rendered after the death of George Harden ; nor is there anything in the relations which he sustained to the deceased and the defendants that makes it inequitable or improper to allow him a fair compensation for the services actually rendered. The circumstances under which they wore rendered were as follows :

Mr. George Harden died on the 6th day of March, 1872. He was the owner of a large personal estate, amounting to about $1,250,000, consisting of stocks, securities, and choses in action. These securities were kept by him in a tin cash-box, which was usually kept in the Bank of the State of New York. On the 4th day of March (1872), the plaintiff, who had been for several years the confidential clerk of Mr. Harden, brought the box containing the securities from the bank to his (Harden’s) residence, No. 22- Cornelia-street. The box was opened by Mr. Harden, and then was again locked by him, and thereupon the key of the box was delivered by him to the plaintiff. At the same time, he stated to his wife (the defendant, Mrs. Elizabeth Harden), in the presence of the plaintiff, what his desires and intentions were in reference to the custody and disposition of the box and its contents after his death.

It is claimed on the part of the plaintiff, that the delivery of the key of the box by Mr. Harden to him, and the declarations made by the deceased at the same time, amounted to an express or implied request, that the plaintiff would take the care and custody of the box and its contents until the administrators were appointed.

After the death of Mr. Harden, the plaintiff took the box to his house, No. 337 Bast Ninth-street, where it remained until the next day, when it was taken by the plaintiff to the Safe Deposit Company, where it was deposited and left in a box hired by the plaintiff, until the 14th day of March, when the box and its contents were handed over by the plaintiff to the defendants, who had been in the mean time appointed administrators.

Mr. Harden has no children or relatives residing in this country. His next of kin resided in Ireland, and after his death they or their representatives came over, and the securities were divided among them.

At the time of Mr. Harden’s death, the plaintiff had in his hands checks which had been signed and delivered to him by Mr. Harden in blank ; also a considerable portion of the stocks' contained in the box stood in the individual name of the plaintiff; whilst a considerable portion of the securities were transferable by delivery, and there is no evidence to show that any person other than Mr. Harden and the plaintiff had any knowledge of the value or extent of his estate, or the nature of the securities, or whether the stocks standing in the plaintiff’s name belonged to him or to Mr. Harden.

From these facts and circumstances it sufficiently appears, assuming them to have been established by competent evidence, that a special contract was made between George Harden and the plaintiff, whereby the latter undertook to take charge of the box and its valuable contents, and to become responsible for its safekeeping from the time of Mr. Harden’s death until administrators could be appointed, and that plaintiff’s services were rendered in pursuance of such contract.

Some arrangement for the safe keeping of this immensely valuable and peculiar property up to the time that the personal representatives might be able to take charge of it, was absolutely necessary to the security of the estate ; and if the contract which is alleged to have been made with the plaintiff, though it remained executory during the life of Mr. Harden, had been made with, and subsequently performed by a stranger or an institution engaged in that line of business, it could not be questioned that such stranger or institution might maintain a claim against the estate for the service rendered. Why, therefore, should the mere fact that the plaintiff was the confidential clerk of George Harden, make any difference ? His general employment as such ceased with the death of his employer, and the administrators of the latter could not compel a continuance of his services. The safe keeping of the personal property entrusted to him, in the condition in which it was, involved duties and responsibilities very different from those which he had previously discharged in the service and under the eye and immediate instructions of the deceased. Besides, it involved a heavy responsibility. Consequently as long as plaintiff fully discharged the high trust reposed in him, I can perceive of no reason why he should not, at least, have the same claim and the same right of action against .the estate that a stranger would have possessed. Public policy is not against it. To deny him the benefit of this position, would leave him without any remedy whatever, for he cannot sue the defendants individually, because no contract was made with them either as individuals or as representatives. Besides, it is not disputed that the services for which compensation is sought, were actually and faithfully rendered, and that they were highly beneficial to the estate.

' As a consequence, a dismissal of the complaint would have been error.

The action being maintainable in the form it was brought and the jury having found the contract to have been made as claimed by the plaintiff, the verdict cannot be disturbed except for errors of law committed on the trial. Defendant’s exceptions were ordered to be heard in the first instance at general term, and the entry of judgment was suspended. Upon such a disposition of the case no question of fact can be considered by the general term, nor the point that the verdict is against the weight of evidence (Mason v. Breslin, 2 Sweeny, 390 ; Hotchkiss v. Hodge, 38 Barb. 118). For the same reason, the verdict cannot be set aside on the ground that it is excessive, for that would involve an examination of the facts upon which it is based.

The exception to the decision of the motion for a new trial upon the minutes of the court is also unavailable to the defendants. The only mode for reviewing such decision is by an appeal from the order dedying the motion (Gregg v. Howe, 37 N. Y. Superior Ct. 424).

The questions left to be considered are mainly questions of evidence.

The only witnesses called to prove the contract with the intestate were the plaintiff and the defendant Elizabeth Harden.

The court, against the objection and exception of the defendants, permitted the plaintiff to testify on his own behalf to a conversation and interview with the defendants’ intestate. In so doing, the court acted upon the theory that the plaintiff could testify to conversations between the deceased and another, although the plaintiff was interested in the subject matter of the conversation, and participated therein, so long as the plaintiff left out Ms own personal share of the conversation, so that the conversation and interview were (under the restriction and limitation imposed by the court upon its admissibility) presented in a mutilated shape.

TMs evidence, it is claimed by the defendants, was received in violation of the 399th section of the Code, and upon a most diligent search I have been unable to find any authority in favor of its admissibility.

The fact that the plaintiff was interested in and took part in the conversation, distinguishes the present from the cases of Simmons v. Sisson (26 N. Y. 276), and Lobdell v. Lobdell (36 Id. 333).

An examination of these cases will show that in neither case was the witness interested in, nor did he take part in, the conversation about which he was interrogated. Both cases were likewise decided upon the peculiar language of the 399th section of the Code, in which the word “ personally ” was used, so as to limit the section to transactions or communications “personally had.” Since that time the 399th section of the Code has been amended, not only in enlarging the class of parties who are subjected to its provisions, but also by striking out the words “ personally had,” and inserting the word “personal” before transaction or communication, so that the exclusion of the evidence depends upon the nature of the transaction or communication, and not upon the parties by or between whom it was physically had or made.

The latter case of Cary v. White (59 N. Y. 338), is claimed, however, as an authority in favor of the admission of the evidence. But the report of this case shows that a majority of the court did not concur upon the point upon which it is claimed to have been affirmed, nor does it appear that the witness had, at the time of the conversation, any interest in it, or that the transaction out of which the litigation arose was the subject of the conversation. What the fact was which was sought to be proved, does not appear in the statement of the case, for the reason that the objection was put upon a ground which rendered a statement of the fact to be proved unnecessary; and inasmuch as the appeal in the court of appeals was from an order granting a new trial, and the court affirmed the order and gave judgment absolute against the appellant pursuant to the stipulation required by the code to be given in such cases, no means are left of ascertaining what evidence would have been elicited, had the excluded question been put. From the opinion of Johnson, J., concurred in by Grover, J., it appears, however, that the only two judges who expressed their views, were of the opinion that the evidence, if admitted, would not have shown a personal transaction or communication between the plaintiff and the deceased, and that for that reason it would have made no difference, if plaintiff had participated in the conversation.

The fácts in the case at bar are materially different. It here appears that the conversation to which the plaintiff testified, related to his employment by the intestate to perform the services for which the action was brought, and related, therefore, to a personal transaction with him and in which he was interested at the time. The plaintiff, after being cautioned by his counsel not to testify to anything that took place between himself and the deceased, was asked to state what the deceased stated in his presence to anybody else, and he commenced by saying: “I am going to.” These were obviously not the words of the intestate, but of the witness, who was going to tell what the intestate had said, and who thereupon proceeded as follows :

“ He said for to hire a safe and to put the things in the Safe Deposit Company, and keep them there until James Gray came out. And told Mrs. Harden, too, that a box should be bought for James Gray exclusively, and that his securities should be separated to the extent of $500,000. He made a memorandum when he was not able to speak scarce, except with an effort, for to separate those securities. The conversation was that a safe was to be got in the Safe Deposit Company. That the valuables were to be deposited there, and kept there until James Gray arrived here.
“ Q. Was anything said in the conversation that you heard, as to who was to take charge of those securities, or of Mrs. Harden, or anything of the kind ? A. Yes, sir; I was to take charge.”

All this testimony was objected to as incompetent and improper, and the last answer defendants’ counsel moved to have stricken out, but the court overruled the objection and denied the motion, to which rulings defendants’ counsel duly excepted.

There can be but little doubt that the direction given in the course of the conversation testified to, that plaintiff should take charge of the securities, that a safe should be hired and that the securities should be deposited in the Safe Deposit Co., was a communication addressedo personally to the witness, and not to Mrs. Harden, for Mrs. Harden herself was to be cared for by the plaintiff, and that the plaintiff so understood it, is rendered certain by the fact that he complied with the direction.

It is upon this testimony that the plaintiff’s claim to having been employed mainly rests, and it is manifest that such contract of employment, if made as claimed, was not only a personal transaction between the witness and the intestate, but that it was personally concluded, and hence it is clearly within the mischief of the rule excluding such transactions and communications. It was none the less personal between the witness and the intestate, because Mrs. Harden participated in it, and as a personal transaction or communication it was infinitely more explicit than the nod of Mr. Lord’s head towards the plaintiff, in Brague v. Lord, recently decided by the court of appeals. That action was brought for services rendered by the plaintiff as an attorney at law to Rufus W. Lord, deceased, the defendant’s testator, in relation to the recovery of certain stolen property consisting of a large amount of valuable securities owned in part by Rufus W. Lord and in part by a Mr. Barron. Upon the question of retainer the plaintiff was allowed to testify, among other things, that he was introduced by Barron to Lord as his, Mr. Barron’s, attorney. That on that occasion Mr. Barron and Mr. Lord talked of a power of attorney they had given, and that they agreed to- ' gether, on the advice of the witness, to revoke that power, which was done. On a subsequent occasion the witness testified to an interview between himself, Mr. Lord, and his brother, Thomas Lord, at which he said the subject of payment for his services arose ; that it was during a negotiation as to an amount to be paid in London, and Mr. Ruido W. Lord said to Mr. Thomas Lord, “We cannot tell what we will have to pay until we know what our lawyer’s charges are,” turning to plaintiff, the three being together, turning his head towards plaintiff.

With respect to this testimony, Rapallo, J., in delivering the opinion of the court, says : “ Advice given by the plaintiff to Mr. Lord was a personal communication and transaction between them within the meaning of the 399th section, and, connected with the proof that Mr. Lord accepted and acted upon such advice, was material, and tended to maintain the issue on the part of the plaintiff. Mr. Lord’s remark about what he would have to pay his lawyers, turning towards plaintiff, appears to have been addressed to plaintiff, as well as to Mr. Thomas Lord, and may have satisfied the jury that Mr. Lord looked upon plaintiff as his lawyer throughout the transactions, and conceded that he would have to pay him as such. The remark to Mr. Thomas Lord about paying their lawyers, did not of itself amount to much.' It derived its significance wholly from the alleged turning towards plaintiff and thus giving him to understand that he was the party referred to. This, we think, was a personal communication within the intent of the 399th section.”

Entertaining these views, the court of appeals reversed the judgment and ordered a new trial, and this notwithstanding the fact that there was other evidence in the case upon which the jury might have found a retainer.

The reception of the evidence above referred to therefore constituted error.

Defendants’ exceptions should be sustained, the verdict set aside, and a new trial 'ordered with costs to defendants to abide the event.

Sanford, J.

I concur in the result, and in so much of the opinion of Freedman, J., as holds that the plaintiff was erroneously examined as a witness in his own behalf in regard to a personal transaction or communication between himself and the defendants’ intestate.

Curtis, Ch. J.

The defendants claim that the evidence wholly fails to establish any employment of the plaintiff by George Harden, the deceased, or by the defendants, to render the services sued for.

George Harden died March 6, 1872, leaving a personal estate variously estimated above $1,200,000, consisting of money, stocks, securities and dioses in action. Many of the stocks and securities stood individually in the name of the plaintiff at the time, and were transferable by delivery. The plaintiff had been for many years his messenger and clerk, at a salary of $60 per monthi The deceased had no children, and his relatives and next of kin resided in Ireland.

On March 4, 1872, two days before his death, the plaintiff brought from the bank to the house of the deceased, the tin box that'contained these securities. The deceased opened the box, in the presence of his wife, the administratrix, and of the plaintiff. A conversation occurred, and when the plaintiff testified, the court excluded his evidence as to what was said to him by the deceased, but allowed him, under defendant’s exception, to testify as to what he said to his wife, Mrs. Harden. The construction given to the 399th section of the Code in Carey v. White, 59 N. Y. 336, and in Brague v. Lord, in the court of appeals, not yet reported, was as it appears to me, adhereá to by the court, as far as the conversation presents anything intellegible, which was very little. The testimony of the plaintiff under this ruling, as to what was said to Mrs. Harden is very obscure, and fails to show satisfactorily any request by the deceased that he should take the custody of his personal estate, and has little if any relevancy to the request and employment alleged by the plaintiff. It amounted in substance to the deceased giving his wife some general statement, as to what he intended to do in' placing and separating his securities, and saying to her, that she would be well taken care of, and that the plaintiff would see to her, and see that she was all'right. It appears that he was scarcely able to speak; but his direction seems to have been that the plaintiff should take charge of his wife. The defendant, Mrs. Harden, testified that the deceased at this interview “ opened the box and was going to separate the securities, he told Ross to ’ get another box made, and put James Gray’s name on the box, and have the securities separated.” She also says that “he then gave the key to Mr. Ross.” On the next day, or the day after, the plaintiff drew the balances in the banks standing to George Harden’s credit, and amounting to over $100,000, in bank notes, and took them to Ms house, when he found him dead on his arrival. These bills he then put in the tin box, and carried it across the city to his own residence a day or two after, about dark, kept it over night, and the next day hired a box in the safe deposit company, in his own name, 'and placed it there. He also telegraphed to James Gray, the nephew of the deceased, in Ireland, who soon reached here.

This box and its contents were delivered to the defendants by the plaintiff, on the 14th of March, when ‘ they received their letters of administration.

The evidence appears to have satisfied the jury, that there was a contract, express or implied, between the plaintiff and the deceased, by which the former was to safely keep and preserve this large personal estate, until the rights of the next of kin could be protected by a proper notification and administration.

The custody of this personal property in the condition in which it was, involved a great responsibility, on the part of the plaintiff, that could only be properly discharged by reticence, and by the exercise of good judgment and integrity. It involved duties and responsibilities very different from those which he had previously discharged in the service, and under the eye and immediate instructions of the deceased.

The jury, if the case came properly before them, had a right to look at what transpired at the interview, when the deceased gave the key of Ms box to the plaintiff, and to put such an interpretation upon that act, in view of the situation of all parties, as expressed the real intentions of the deceased. Taken in connection with what Mrs. Harden testifies he previously told the plaintiff, and his -failing condition, the evidence perhaps warranted the jury in finding that the defendant employed the plaintiff to perform the duty which it is not disputed he discharged in a faithful and commendable manner.

There is another difficulty in these questions of fact. They come before the general term in a case where the unsuccessful party moves for- a new trial, upon exceptions taken by him at the trial, and which have been ordered to be heard in the first instance at the general term, and judgment in the mean time suspended. In such a contingency it is held, that at the hearing, no question of fact can be discussed, nor the point that the verdict is against evidence (Mason v. Breslin, 2 Sweeny, 390 ; Hotchkiss v. Hodge, 38 Barb. 118; Dickerson v. Wason, 48 Id. 412).

Whether the verdict was excessive, is a question not entirely free from embarrassment. The plaintiff valued his services at $10,000. The defendants called no witnesses to show what compensation or commission would be charged by institutions or persons, usually performing similar services, with similar responsibilities. One of the defendants testified, that she had said to the plaintiff, that if it was not paid, she would pay it herself. The other defendant testified, that he found there was very little to be done for the estate ; that it was not an intricate estate, that the affairs were all personal property, and mostly in this tin box, that he thought the estate was worth about $1,200,000, and that the surrogate allowed him for his compensation as administrator $12,000. This was one per cent, on his estimate of the amount of the estate. In every commercial community, where great responsibilities are confided to a person possessing good judgment and strict integrity, the measure of compensation is proportionally increased. The possession and exercise of these qualities, under such circumstances, command the highest appreciation. As to this administrator, who with clerical aid, and legal advice, and under the protection of the law, thus discharged his trust, it is difficult to find that he was more than justly remunerated.

When we see this plaintiff, comparatively unprotected and unaided, and at the most critical time, taking charge of this, great amount of money and securities, for the benefit of these absent relatives of the deceased, and discharging Ms trust and its grave responsibilities, with excellent judgment and with integrity, it is quite possible the jury had some reason for considering that he was entitled to a compensation which they estimated at about one-half per cent, on Ms valuation of this property. It is urged, that considering the character and extent of the evidence placed by the parties before the jury, on this point, there is an absence of controlling reasons to set aside the verdict as excessive, and that it is against the policy of the law to disturb the finding of a jury in this respect, except to remedy some clearly shown wrong or grievance. Yet when we consider the plaintiff’s relations with the deceased, and that a species of moral obligation devolved upon him to discharge this duty irrespective of any question of compensation, we are disposed to think that the verdict is excessive, and that a questionable precedent should not be established.

The exception taken by the defendants to the exclusion by the judge óf the question addressed to one-of the defendants, asking Mm to state the usual range: of salaries to bank-clerks, occupying confidential posiions, in March, 1872, is not well taken. The position they occupy has little if any resemblance to the trust confided to the plaintiff, and executed by him. The court also properly excluded the evidence offered to show that the plaintiff had been for a time subsequently employed by one of the defendants as her.clerk or as such by both of them. Such employments, was foreign to the issues, and totally irrelevant.

The court exercised a just discretion in denying the defendant’s application to amend the complaint at the trial.

If there had actually been any payment for these services to the plaintiff, why should the defendants have served him, before he commenced his action, with a rejection of his claim, and also have omitted to have set up a payment in the answer %

It appeared at the trial, by the administrator’s testimony that he had retained $10,000 to meet this claim. To this the defendants excepted. It was not followed up by further evidence ; and the judge charged the jury, that it was wholly irrelevant, and had nothing to do with the case. This evidence affords no ground for granting a new trial, even if the judge had ' not thus charged, in respect to it. It was a proper course for the administrator to take, for his own protection, and such a course as any discreet business man would ordinarily take, and in no way calculated to lead the jury to consider the circumstance an admission of the plaintiff’s claim. The judge charged, that there was no evidence of a promise by the defendants to pay the plaintiff’s claim. Mrs. Harden in her testimony did not speak for the defendants, but gave expression simply of her individual appreciation of the value of plaintiff’s services, when she spoke of paying the claim herself, if it was not paid.

The plaintiff testified at the trial “ that he had no claim against the estate for any services rendered prior to Mr. Harden’s death.” Consequently, if entitled to recover at all, it must be for services rendered after his death, and either at the request of the deceased, or at the request of his administrator and administratrix. But his employment by Mr. Harden necessarily ceased when death terminated the latter’s capacity to employ any one as the future steward or custodian of his personalty, and when at the same moment all his personal estate became vested in his personal representatives by operation of law (Patchen v. Wilson, 4 Hill, 57). Letters of administration relate back from the time of their issue for some purposes (Priest v. Watkins, 2 Hill; 225 ; In re Faulkner, 1 How. Pr. 207; Vroom v. Van Horn, 10 Paige, 558; Allen v. Eighmie, 9 Hun, 201).

No cause of action is established against the defendants as personal representatives of the deceased, by evidence of what services the plaintiff rendered by the request of the deceased, after his death.

The complaint is against the defendants as administrator and administratrix, both in form and substance. It demands judgment against them as such. It is in no respect against the defendants, individually. It alleges that the plaintiff also rendered services at their request made in their representative capacity.

This presents a serious difficulty in the plaintiff’s case. It is the rule, that for services rendered at the request of an administrator, though for the benefit of the estate he represents, the estate is not bound, and that no recovery can be had against him in his representative capacity, or to be levied de bonis testatoris. (Austin v. Munro, 47 N. Y. 366, and cases cited; Bucklin v. Chapin, 1 Lansing, 450; Cary v. Gregory, 38 Superior Ct. R. 127).

The defendants were entitled to have their motions to dismiss the complaint granted, and their exceptions to the refusals were well taken and should be sustained, the verdict set aside, and a new trial granted, with costs to defendants to abide event.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    CHARLES N. BLACK, Trustee, &c., Plaintiff and Respondent, v. SAMUEL B. WHITE, Defendant and Appellant.
    PAYMENT OF MONEY, PRESUMPTION AS TO.
    Promise to pat, when implied.
    Proof of the delivery of money, its reception and use, is not proof of an obligation on the party receiving and using it to return the same, and consequently does not establish an implied promise.
    In proof of a count for money lent, &c., it is not sufficient to. merely show that the plaintiff paid money to the defendant; such proof is prima fade evidence only of the payment by the plaintiff of his own debt, antecedently due to the defendant. The plaintiff must also prove that the transaction was essentially a loan of money to the defendant. A very slight circumstance may establish that it was a loan, or that it was paid at the request of the receiver, but there must be that circumstance to overthrow the legal presumption. 3 Greerileaf m JSvidence,

    § 113; Bogert v. Morse, 1 JST. Y. 377.
    In this case, to make an implied promise to pay, it should have appeared that the money was paid upon the request of defendant, either express or implied. It was error for the court to charge substantially that the law implies an obligation or promise to return the money from the fact of its receipt and use by the defendant, throwing aside all the testimony as to which there was a conflict.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided June 25, 1877.
    Appeal from judgment on verdict for plaintiff, and order denying motion for new trial, made upon the xriinutes.
    The action is for the recovery of money advanced.
    The plaintiff’s case was as follows: Two firms, Hartshorne & Co. and Hartshorne & Brand, brewers, doing business in connection, failed in business and made an assignment for the benefit of their creditors to the defendant, who was one of the creditors. The defendant permitted or authorized the members of the insolvent firm to carry on the business with the assigned property for the benefit of the creditors. Nothing turns upon the validity or invalidity of this arrangement. Benjamin M. Hartshorne, a brother of a common member of the firms, placed §10,000 in the hands of the plaintiff with instructions to advance it to be be used in the business to be carried on, until the debts were paid, or until plaintiff should demand it, when it was to be paid to the plaintiff. On the trial, the plaintiff testified that he went to the defendant and stated his instructions, and the defendant assented to its being used in the business, until the debts were paid or until plaintiff should demand it, in which latter case defendant promised to pay it to plaintiff. Plaintiff then furnished the money to be used in the business. The money was invested and reinvested. Profits were made therefrom. The defendant closed up the business before the debts were all paid. The plaintiff demanded the $10,000, which was refused.
    The defendant’s case was among other things that the plaintiff told him that he was about to advance the money to Hartshorne & Co., and Hartshorne & Brand, and that they were to repay it on demand, that he (defendant), never promised to pay it; that after the assignment, it was necessary to work up some material assigned, and he authorized his son, Frank White, to do what was necessary for that purpose ; that he gave to Hartshorne & Co. and Hartshorne & Brand, no authority other than to collect debts.
    It appeared that the money furnished to plaintiff, was in part handed to Frank White, agent, and in part to the members of the insolvent firm. The evidence as to this was obscure, and required construction by the jury. It also appeared that in some way or other the money or malt purchased by it had been used in working up the materials assigned.
    The judge charged the jury that there could be no recovery unless the defendant had expressly promised to pay.
    But at the end of the charge the plaintiff’s counsel asked the court to charge that independent of the alleged agreement, if the defendant as assignee received and accepted the use of the money and profited by it, the law implies his promise to pay, on which a verdict may be founded, throwing aside the testimony as to which there is a conflict. The court charged agreeably to this request, to which defendant’s counsel excepted. The verdict was for plaintiff.

      Samuel G. Adams, attorney; A. J. Vanderpoel, of counsel, for appellant.

      Charles N. Black, attorney for respondent; Geo. Bowman, of counsel.
   By the Court.—Sedgwick, J.

In the hurry of the trial, I think the learned judge, did not scrutinize the language of plaintiff’s request. The jury could take it to mean, that, if outside of the conflict as to what was the express arrangement, they were satisfied that the defendant as assignee took the money and then used it, there was, as matter of law, an implied promise to repay it. I do not think that proof of delivery of money, of receiving it, and using it, is proof of an obligation to return, and is therefore not proof of an implied promise.

Greenleaf gives (vol. 2, § 112), the law: “In proof of the count of money lent, it is not sufficient merely to show that the plaintiff paid money or a bank-check to the defendant, f Or this, prima facie, is only evidence of the payment by the plaintiff of his own debt, antecedently due to the defendant. He must prove that the transaction was essentially a loan of money.” A very slight circumstance may show that it was a loan or that it was given at the request of the receiver, but there must be that circumstance to overthrow the legal presumption (Bogert v. Morse, 1 N. Y. 377). If there were such circumstances in this case, the attention of the jury was withdrawn from a consideration of it, inasmuch as the charge said that the law implied an' obligation from the receipt and use of money.

In this case, to make an implied promise from the receipt of the money, it should have appeared that the money was paid upon the request of the defendant, either an express or implied request. If the plaintiff gave the money at his own instance, it was nothing more than a gift. If he gave it at the instance of others, that would not create an obligation against defendant. So far as a request could be implied from the subsequent express promise, the jury might not have found that there was one, as the charge told them, that the receiving of money and profiting by it created an obligation, aside from the conflict as to the express promise. And indeed, the circumstance generally, outside of the arrangement in which the alleged express promise was made, do not conclusively show an actual or implied request. There was no express request, and there were no facts from which the law will imply one (Lampleigh v. Brenthwart, 1 Smith L. C. 222). The case Doty v. Wilson, 14 Johns. 378, cited in Lampleigh v. Brenthwart, says, “the benefit to the defendant connected with his express promise to pay, must be deemed equivalent to a previous request.”

I am of opinion that on the case as presented by the plaintiff, he could not recover except upon the express promise, as to which there was a conflict; but if he could, the defendant had a right to ask that the jury should pass upon what was the express arrangement, if he gave proof as to one, expressum facit cessare taciturn. A man may recover on a general assumpsit, provided he could recover if there had been no special agreement, although one in fact was made. As in this case, although there was an express promise, as alleged by plaintiff, the latter could have recovered without satisfying the jury of the promise, provided he showed a request on the part of the defendant that the money should be advanced.

If there was a special agreement, and he could not recover on that, he cannot recover on a general assumpsit (Robertson v. Lynch, 18 Johns. 451; Tuttle v. Mayo, 7 Id. 132). Here the defendant gave evidence as to the circumstances under which the money was actually advanced by the plaintiff. If the defendant were correct in his recollection, this would have showed that the money was advanced upon the personal promise of the members of the insolvent firms to repay it ; therefore the defendant must have succeeded, although perhaps, as matter of fact, the defendant received the money as assignee, and profited by it as assignee or creditor. Perhaps other construction of the arrangement might have been made. But outside of this, the evidence would bear the inference that the money was voluntarily paid, upon no request or promise of defendant, but that the plaintiff was to look only to the result after payment of debts. The jury could have made an inference from the defendant’s testimony, which would have shown that there was no implied promise, but an express arrangement under which he could not be liable. Therefore, I think it was error to charge that they might disregard defendant’s testimony, provided outside of it there was an implied promise to repay the money.

I am of opinion, that from the character of the plaintiff’s agency, as shown in his testimony, he could maintain this action.

For the reasons assigned, however, the judgment and order appealed from should be reversed with costs to appellant t,o abide event, and a new trial had.

Speir and Freedman, JJ., concurred.


text:
    SARAH N. HAWKS, Plaintiff and Respondent, v. WILLIAM W. WINANS, et al., Defendants and Appellants.
    negligence.
    In this case, upon the trial in the court below, the verdict was for the plaintiff. The argument before the general term, was upon the usual questions in such cases:

      First. Did the proofs establish that the accident was caused by the negligence of the defendants 1

      Second. Did the proofs establish that the negligence of the plaintiff did not contribute thereto ?
    The court, upon a full review of the facts and circumstances, fully set forth in the opinion, held the affirmative of each of these questions, and affirmed the judgment.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided June 25, 1877.
    Appeal from judgment on verdict for plaintiff, and order denying motion for new trial.
    The facts in the case appear fully in the opinion of the court.

      B. D. Silliman, for appellant.

      George H. Yeaman, for respondent.
   By the Court.—Sedgwick, J.

The action was for damage, alleged by plaintiff to have, been caused by the negligence of defendant’s servants, when she was leaving their ferry boat.

The learned counsel for the appellants maintains, upon exceptions made in due form at the trial, that the evidence for plaintiff, with certain facts stated by defendant’s witnesses that must have been true, did not show any negligence on the part of the defendant’s servants and failed to show that her own negligence did not contribute to the accident.

I am not able to agree with this position, and will state, as briefly as I can, the case, which, on the evidence, sustains the verdict, &c.

The manner in which the accident occurred" is of first importance. The plaintiff walked to the edge of the boat. She there found, that the bridge on which she must go, in leaving the boat, was above the level of the deck about ten inches. She stepped up from the boat, and was assisted by the hand of her escort, who had been on the boat with her and had gone on the bridge before her. She and her witnesses state, that at this point, and when by a possible construction of the evidence, one of her feet was on the bridge and the other foot had left the boat, the bridge was suddenly lowered, by a deck hand of the boat. This caused her to fall upon the bridge at its edge, and in falling the leg that had reached the bridge received a blow that caused the greatest injury of which the plaintiff complains. The leg was not jammed between the boat and the bridge, for at that instant the boat was backing. There was evidence which would have justified the jury in saying that her foothold was lost by the boat backing, but the jury have credited the other version.

The first point then, is, was there any evidence that this cause of the plaintiff’s falling was the result of negligence on the part of the deck hand." He denied that he did lower the bridge, but assuming that plaintiff’s testimony on this point was correct, and considering the general facts of the situation as the deck hand himself swore to them, he was negligent, or at least there was evidence for the jury as to his negligence.

The deck hand was at the wheel which lowered the bridge. He faced the passengers, and he remembers seeing plaintiff as she was proceeding to get off. Some passengers were on the bridge. He had an opportunity to see the plaintiff’s situation. It was his duty to the defendants, and to the passengers, to look about to see if it were prudent to lower the bridge. He knew that letting down the bridge would be an instantaneous matter, and would be likely to overthrow a person stepping on it. The jury would have a right to say, that he did not look to see if any one was in peril from the dropping of a bridge eight inches, or that he did see them and omitted to use any care for their protection.

The next point is, did the case not show that the plaintiff was free from negligence that contributed to the injury % Does it appear that she was prudent when she did not anticipate the lowering of the bridge 1 ¡Negligence on her part as to something that did not contribute to the injury, would not prevent her having a cause of action. On the other hand, it might possibly be, in the present case, that the circumstances which would show that she was negligent as to leaving the boat before it was secured to the bridge, would also show that the circumstances would not justify her in believing that the bridge was not to be lowered to permit passengers to go on shore.

H there were, however, evidence that she was justified in believing that it was otherwise safe to step from the boat, the mere and sole fact of the bridge being higher would not show that there was to be a lowering of it before passengers could leave, either so far as safety was concerned or before the rules of the ferry were observed. The difference in level was not great or dangerous. If the attention of a person of ordinary intelligence were turned to the subject he might think there was no necessity of its being lowered, or perhaps that it could not be lowered further.

Therefore, it is only necessary to examine if there was not evidence to show that the plaintiff was free from negligence, when she assumed from the circumstances that the arrangements had been made which were to be made for the safe exit of the passengers, and, in particular, that the boat was secured to the bridge. If it appeared that the preparations for passengers leaving had not been completed, it might perhaps be careless for her to step on the bridge at all, or to assume at all that it was proper to do so.

The plaintiff and her witnesses testified that as they went towards the end of the boat the chain that barred the passengers’ gangway was down. There is no direct evidence that one of the crew let it down, but from the,, circumstances, if the jury had found that Salters, the deck hand, did, it would not have been against the evidence, although he said he did not. If, however, the chain was down, without fault on the part of the boat, so that it could not be deemed an invitation from defendants’ servants to passengers to proceed, nevertheless there was no warning from a chain barring the way, not to go further. The plaintiff could prudently go on, if she was not negligent thereafter. She had had express notice not to leave the boat until it was secured to the bridge. This notice did not increase or lessen her obligation to observe the situation, and to be careful in her action thereon, and to use her judgment to ascertain if the ferry hands had completed arrangements for leaving. She was bound to use her judgment and be careful, but an erroneous conclusion on her part would not make her negligent.

According to her testimony, supported by other evidence, she found that the boat was close to the bridge, and, in fact, it was chained on her side, tight to the bridge, and was there in permanent contact with the bridge. She stepped off about three feet from the chain. The evidence generally showed that while it was true that at a certain point of time the boat began to back, it is also true that immediately upon that point of time the boat must have been at rest for an unfixed length of "time, during which the inertia of the boat was being overcome by the wheels backing. It was then (the jury might have found) that the plaintiff saw, or thought she saw, the boat close up to the bridge.

The learned counsel for the appellant argues' that the circumstances show that there must have been a gap betwen the boat and the bridge, for the reason that the boat did not go straight into the slip but on an angle, one side of the boat being nearer the bridge than the other. It is true that the must have been a gap. But how large was it 1 If great, there might have been negligence in supposing that the time to land had come. If small, under the circumstances, the jury could say that the plaintiff was justified in believing and testifying that the boat was close to the bridge. The physical facts did not necessarily show that, at a few feet from where the boat was in contact with the bridge, there was such a gap that it could not have escaped observation. If the testimony of the witnesses for defense on this point, was unopposed, the jury would not have been obliged to infer that their description of the size of the gap was accurate, or indeed, that as a fact, they particularly observed how wide it was at the point where the plaintiff stepped off. ISTo data were given, on which a calculation could be made as to the width. The jury were at liberty to find, taking all the circumstances together that as the plaintiff saw that one chain was tight, and the boat was close to the bridge, she was using ordinary prudence in concluding that the boat was secured to the bridge. She was supported by the facts in believing, that when the boat was (as she judged), so placed that the two chains could be tightened up, as one was, the other also was.

I am of opinion, that the plaintiff did show facts which justified the jury in saying that it appeared that her negligence did not contribute with the defendant’s negligence.

The judgment and order should be affirmed, with costs.

Speir and Freedman, JJ., concurred.


text:
    FRANCIS O’HAGAN, Plaintiff and Respondent, v. SIDNEY DILLON, Defendant and Appellant.
    I. NEGLIGENCE—CONTRIBUTORY,
    t. INTOXICATION.

      a. Will not constitute contributory negligence unless its degree is such as to justify the jury in finding that the party was thereby disqualified from the exercise of ordinary care and prudence.
    1. What not sufficient to justify the jury in so finding.

      (a) The bare circumstance that he had indulged sufficiently • in spirits to make the fact perceptible from his breath, is not.
    H. TRIAL.
    1. Incompetent evidence, when not cause for reversal.

      ■ (a) Irresponsive answers.
    1. When a witness, to a question put, volunteers incompetent' evidence, no cause for reversal results therefrom.
    1. This although the question put was improper, but the responsive answer made to it had no force as evidence.

      1. E. g., where the question put was whether the witness knew of a certain fact, and he answered that he did not, and then volunteered that he had heard there was some such thing.
    (6) Immateriality.
    1. The reception of incompetent evidence, which could not by any possibility have injured the party against whom it was given, is not cause for reversal.
    3. INCOMPETENT EVIDENCE, WHAT IS.

      (a) Witness, supporting op.
    1. Evidence purely in support of a witness cannot be given until a necessity has been shown for it by impeachment.
    1. E. g., where a witness has sworn to a fact on his ex-examination, he cannot, before his recollection as to the fact has been attacked by the other, be asked by the party on whose examination he so swore as to the cause of his recollection or the means by which he refreshed it.
    (6.) Means op observation, judgment op witness as to.
    1. A question “Had you an opportunity of knowing, etc.,” if not illegal, is immaterial where the witness has been examined as to all the facts that could be justly relied on to show opportunity of knowledge, or to show the fact as to knowledge of which the inquiry was made.

      (c.) Conversations had by witness, contradicting him.
    1. W7taf not sufficient foundation for.

      (a.) When he. admits having had a conversation, but is not asked the details, a witness cannot be called to testify to the details.
    3. Collateral matter.

      (a.) A witness on cross-examination denied that in a conversation with one Smith, he had said he was a man of influence. • Held, that this was collateral, and not a proper, subject of contradiction.
    3. COMPETENT EVIDENCE, WHAT IS:

      (a.) Credibility op witness, evidence affecting.
    1. The motives of a witness in testifying are relevant to the main issues.
    (ib.) Collateral, what is not, as to motives.
    1. Where a witness for defendant is asked on cross-examination as to whether he had not made to one B, certain statements which tended to show that he meant to conciliate the defendant, by appearing as a witness and by his testimony; and he denied making them, B may be called to prove that he did make ,
      them; because it is evidence as to the motive of the witness in testifying, and therefore not evidence on a collateral issue but evidence relevant to the main issue.
    Before Sedgwick, Speir, and Freedman, JJ.

      Decided June 25, 1877.
    Appeal from judgment on verdict for plaintiff.
    On the trial the judge charged, among other things, as follows:
    “I charge you that no contributory negligence is to be imputed to him (the plaintiff) from the mere fact that he had indulged in drink merely to the extent of its becoming perceptible from the smell of the breath. He was bound to exercise reasonable care and caution, and unless you find that he was disqualified from the exercise of ordinary care and prudence, by over-indulgence in drink, it is not to be imputed to him as negligence that he had indulged sufficiently in spirits to make the fact perceptible from his breath.”
    The other matters necessary for the understanding of the decision appear in the opinion.

      Alex. Thain, attorney, and of counsel, for appellant.

      George W. Lord, attorney, and of counsel, for respondent.
   By the Court.—Sedgwick, J.

The action was for damage to plaintiff, from falling into an excavation made by defendant in Fourth avenue.

The facts were fully examined on the trial. The jury were instructed by an impartial and clear charge, to which but one exception was taken. That exception referred to the remarks of the judge as to plaintiff’s being intoxicated at the time of the accident, and the manner in which the jury should treat intoxication on the point of contributory negligence. It is unnecessary to go into particulars to show that the judge was correct in the law of his charge. It would only be a defense of well-known, often-repeated, propositions.

There was a motion for a new trial on the judge’s minutes. No ground for a new trial was stated, and therefore it cannot be ascertained on this appeal even that the claim made was in its character (if well-founded) ground for a new trial under any circumstances. There was no preponderance of evidence on any point in favor of defendants that would have justified the judge in giving a new trial. There must, therefore, be an examination of che exceptions taken in the course of the trial.

The first was to the admission of a question : “Do you know anything about a party recovering a judgment of §5,000 before Judge Van Bruno? ? ” I have no doubt that the printed case does not fully show the circumstances of the admission of this question. Probably it was admitted on the ground that no injury could be done by its being answered, while it might serve as a key to the witness’ recollection of some material matter. But the witness answered that he didn’t know-anything about it, and volunteered that he had heard, there was some such thing. The judgment cannot.be. reversed for this uncalled-for speech. It does not constitute an error of law on the part of the judge.

A witness for defense testified that he had hung ■&; lamp at the excavation on the evening before the accident, and said, “I expect I removed it from half-pash four to five in the morning.” Defendant’s counsel then asked, “Is your recollection refreshed or your-attention called to that from any circumstance, any accident that happened there?” This question was-; excluded. The general rule is that there can be no corroboration until a necessity has been shown for it by an impeachment. If a witness remembers what he- testifies to, that is all the party who calls him can have. The fact is before the jury that he has a recollection. Primarily, the cause of his having a recollection is not material. If the other side does not by cross-examination show that his recollection is not positive, it is presumed to be what he impliedly states it when he answers positively. Such a question as was asked might call out immaterial and trifling matter, tending to make a confusing and irrelevant issue. But on cross-examination the witness did state the cause of his having a distinct recollection that he hung out a lamp, and the defendant then obtained all that the excluded question (excepting the leading portion) could have obtained.

The question, ‘ ‘ Had you an opportunity of knowing the condition of O’Hagan and his wife at that time as to whether they were intoxicated or sober ? ” was properly excluded. The case shows that the defendant was allowed to examine all the facts that could be justly relied on to show opportunity of knowledge or to show intoxication. The question, if not illegal, was not material to the defense as only calling for the witness’ judgment as to his means of observation.

A witness (Smith) for the defense was asked by defendant’s counsel if Burns, a witness for plaintiff, had not in a conversation referred to the claim in this action. The answer was yes, and the next question called for what Burns said. This was properly excluded, for Burns had not been asked the alleged details, but only if he had had any such conversation. The next question was, “Did not Mr. Burns at that time say to you that he was a man of influence % ” This was also excluded. I do not think it was a proper subject of contradiction. If the question had been answered affirmatively, the jury could not properly have used it to lessen Burns’ credibility. It is, moreover, doubtful whether Burns had been asked if he said this in a conversation with Smith about the claim in this action.

There were other exceptions that arose from certain questions put to Bailey, who had first been called as a witness by the defense. The case states that he was afterwards recalled by the-plaintiff, and his examination is headed by the words “direct examination,” but from the whole case it is evident that the questions were asked as on a further cross-examination.

The witness testified that he had not said to Burns that if he (Bailey) had the $10,000 that the defendant owed Mm he would not be a witness in the action, and that he did not say that the defendant had sent a telegram to him in New Jersey, and that he came expecting to get the debt, and instead of that a subpoena was served upon him.

Burns was afterwards called by plaintiff, and upon objection allowed to testify that Bailey had said the things which he denied saying.

The objection was that the subject of the alleged declarations was collateral, and the plaintiff was bound by the witness’ answers. This does not seem to me to be the law. All that goes to show the motives of a witness in testifying is relevant to the main issue. “ It is always competent to show the relations which exist between the witness and the party against, as well as the one for, whom he was called” (Newton v. Harris, 6 N. Y. 346, citing 1 Greenleaf Ev. 449-50).

In the present case, the plaintiff had a right to argue to the jury that the declaration showed that Bailey meant to conciliate the defendants by his appearing as a witness, and by his testimony, so that they would be the more inclined to pay-what they owed him. This is by no means a necessary conclusion, for that might not have been the fair meaning of what was said, but the plaintiff had a right to take the jury’s construction.

The last exception to be noticed is that the plaintiff was allowed to prove that during the afternoon before the accident the plaintiff and his wife were friendly and did not quarrel. The defendants had given testimony to show that they had been quarreling immediately before the accident. Perhaps the plaintiff had a strict right to show that, so far as there were witnesses, no »quarrel had occurred within a short period of time before the quarreling alleged by the defendants. But if there were no such right, I cannot see that the answer could by any possibility have injured the defendants.

I am, therefore, of opinion that the judgment should be affirmed, with costs.

Speir and Freedman, JJ., concurred.


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    HENRY WELSH, Plaintiff and Respondent, v. THE GERMAN AMERICAN BANK, Defendant and Appellant.
    I. DEPOSIT IN BANK PAYABLE TO THE WRITTEN ORDER OF THE DEPOSITOR.

    1. ACTION AGAINST THE BANE TO RECOVER.
    (as) Defenses, what ake not.
    1. OhecTo, payment of. The fact of payment by the bank of the amount of a cheek drawn by the depositor to the order of a payee, to a person other than such payee, on the forged indorsement on the check of the name of such payee, does not constitute a defense.
    1, It is not a payment to the written order of the depositor.
    2. Negligence of depositor. This, unmixed with the element of inducement by or through the depositor to pay on the forgery, constitutes no defense.
    1. Negligence, what will not constitute.

      (a) A depositor signing checks for amounts not due to the payee, trusting, without making a personal examination, to his clerk’s statement that such amounts were due, and after signing, handing them to the clerk, will not.

      II RATIFICATION, WHAT R0E8 NOT AMOUNT TO.

    1. Non-discovery of the forgery of the indorsements upon checks drawn by a depositor to order of a payee, which checks had been honored by the depository and returned to the depositor with his pass-books where he was charged with the amounts thereof, for a length of time after such return, say two years, and the not malting any claim, against the depository until after such discovery, is hot a ratification of the payments made on such forged indorsements.

      III. AGCOUNT 8TATED.

    1. DEFENSE OF, TO AN ACTION BROUGHT ON A CONTRACT.

      (a) Pleading of Plaintiff, what not necessary.
    1. A reply denying the account stated, or if admitting it, the setting forth that plaintiff was erroneously debited or credited therein (as the case may be), in respect of the cause of action, is not necessary. °
    2. Amended complaint. Nor is it necessary to amend the complaint by inserting allegations of error in the account, with a view to open it.
    (&.) Overcoming effect of defense of ; what may be shown.
    1. Errors or mistakes affecting the result.
    Before Sedgwick, Speir and Freedman, JJ

      Decided June 25, 1877.
    Appeal from judgment for plaintiff, entered upon verdict directed by the court.

      E. A. Acker, attorney, and D. M. Porter, of counsel for appellant, cited the following cases:

      (a) As to there being an account stated: Bullock v. Boyd, 2 Edw. Ch. 292; Nevins v. Davison, 6 Selden, 75; Story's Eq. Jur. 526. (b) As to pleadings necessary by the plaintiff: Hutchinson v. Market Bk., 48 Barb. 321; Nevins v. Davison, 6 Selden, 75; Bullock v. Boyd, 2 Edw. Ch. 292; Lockwood v. Thorne, 1 Kernan, 170, 173; 18 N. Y. 285, 291, 292 ; Manhattan Co. v. Lydig, 4 J. R. 377. (c) As to the checks being payable to a fictitious person: Coggil v. The Am. Ex. Bk., 1 Comst.
      113; National Bk. of Commerce in N. Y. v. The National Mechanics Banking Association of N. Y., 55 N. Y. 211. (d) As to plaintiff’s negligence: Allen v. Coit, 6 Hill, 318; Alderson v. Clay, 1 Starkey, 403 ; Hutchinson v. Market Bk. of Troy, 48 Barb. 321; Johnson v. First National Bk. of Hoboken, 6 Hun, 124; Nevins v. Davison, 6 Seld. 75. (e) As to ratification: Coggil v. Am. Ex. Bk., 1 Comst. 113; Gloucester Bk. v. Salem Bk., 17 Mass. 42; Lawrence v. Taylor, 5 Hill, 114 ; Ward v. Evans, 2 Salk. 442; Williams v. Mitchell, 17 Mass. 98 ; Story on Agency, §§ 234, 260. (f) The plaintiff under the circumstances must himself bear the loss, the defendant being innocent and free from negligence. Coggil v. Am. Ex. Bk., 1 Comst. 113; Reddick v. Doll, 54 N. Y. 234; Young v. Grote, 4 Bingham, 253 ; Isnard v. Jones, 10 La. Ann. 103; Vanduzen v. Howe, 21 N. Y. 351; Russell v. Pond, 56 Id. 57; Ingham v. Primrose, 28 L. J. 275; Garrard v. Hadden, 67 Penn. 82 ; Hutchinson v. Market Bk. of Troy, 48 Barb. 321 ; Gloucester Bk. v. Salem Bk., 17 Mass. 42. (g) The effect of defendant’s acts was to make the transaction valid as to defendant: Smith v. National Bk. of Commonwealth, 56 N. Y. 480; Continental National Bk. v. National Bk. of the Commonwealth, 50 Id. 575. Cases distinguished from this: 57 N. Y. 602; 11 Id. 404.

      Lemuel Skidmore, attorney, and E. L. Fancher, of counsel, for respondent, urged:
    I. When a check upon a bank is drawn payable to the order of a particular .person, the bank is bound to ascertain the genuineness of the payee’s indorsement before paying the check (Morgan v. Bank State of N. Y., 11 N. Y. 404; Graves v. American Exch. Bank, 17 Id. 205; Johnson v. Bank of Hoboken, 6 Hun, 124, since affirmed by court of appeals).
    II. There was not any negligence of depositor, in this case to excuse the bank in paying a check upon a forged indorsement. There was no gross negligence (Leavitt v. Stanton, Hill & Denio Supp. 413).
    III. Weisser v. Dennison, 10 N. Y. 68, is a case very similar to the present. In that case checks were forged by a confidential clerk of depositor, paid by the bank, charged in the depositor’s bank-book, balanced and returned to depositor, yet the bank was held liable to refund the money to depositor, as the act of his clerk was not authorized. Even if an account were stated by return of the bank-book and vouchers, yet it may be impeached by showing fraud or mistake.
    IV. The only authority given to Swindells by plaintiff on signing the checks, was to forward them to W. hi. Johnson, a customer well known to both: in making any other disposition of the checks Swindells was a wrong-doer and did not represent the plaintiff (Weisser v. Dennison, 10 N. Y. 18).
    V. This is not the case of a fictitious payee. A fictitious payee is one intended by the drawer to be fictitious and nominal (American Exchange Bank v. City Bank, 5 N. Y. Leg. Obs. 18).
    VI. The plaintiff was guilty of no negligence in entrusting the checks to his book-keeper to forward to the customer Johnson (Weisser v. Dennison, 10 N. Y. 83).
    VII. The plaintiff and defendant are not equally free from blame. The plaintiff is,- on the contrary, not to blame at all. The defendant is to blame for paying checks to the wrong individual, when they were bound to ascertain that the indorsement was genuine. Had the bank performed this simple duty, no damage could have befallen it.
   By the Court.—Sedgwick, J.

The action was upon contract. The complaint alleged that the plaintiff deposited with the defendant, from time to time, sums of money, amounting together to more than one hundred thousand dollars ; that defendant promised plaintiff to pay the said money on demand to the plaintiff or to his order, in writing; that the defendant had paid to the plaintiff or his order all the said money excepting $3,146; that the plaintiff, by order in writing, had demanded of the defendant the amount last named, but the defendant had refused to pay any part of the same.

The answer admitted the deposit with the defendant, the promise of the defendant as stated in the complaint, and the demand upon defendant.

There was a stipulation made by the parties, read. upon the trial, that the plaintiff was entitled to recover the amount claimed, unless the defendant “shall be able upon the trial to establish one or more of the affirmative defenses pleaded in the answer, and by the legal operation of such affirmative defenses to defeat or lessen the recovery; and in attempting to prove any of the said affirmative defenses the defendant shall be confined to due proof of legal payment to the plaintiff,” or his written order, of twelve checks amounting to the sum claimed, which the defendant had paid and charged to the plaintiffs’ account. These checks were drawn to the order of W. M. Johnson, excepting one which had been drawn to the order of J. D. Johnson and then indorsed to the order of W. hi. Johnson.

The proof showed that a clerk of plaintiff had drawn these checks and presented them to plaintiff to be signed as for amounts which the plaintiff owed W. ÍT. Johnson. W. 1ST. Johnson was in the practice of consigning butter to the plaintiff to be sold. The clerk took the checks after they were signed. The name of W. 1ST. Johnson was forged upon them as indorser. The checks were then delivered to other parties, who indorsed them, and they were paid by defendants through the clearing-house.

As the stipulation confined the defendant to due proof of legal payment to the plaintiff, or lib written order, of the amount of the checks, the plaintiff was entitled to recover upon the single fact that W. hi. Johnson’ s name was forged. Beyond doubt, under the admission by the defendant of the obligation to pay to the order of plaintiff, it was not a legal payment. There was no pretense that the plaintiff took part in the forgery. Even if there were negligence on his part (there was in fact none), he had a right to rely on defendant’s undertaking to pay to his order. If he did nothing to induce the defendant to pay upon the forgery, part of his rightful advantage was that though he was negligent, the defendants had contracted, that they would do that, which would prevent injury to him from his negligence.

It may be proper, however, to look through the defenses to see if there were any evidence in the case which called upon the court to send any defense to the jury.

The first defense was that the whole of the moneys deposited had been paid upon checks drawn by plaintiff, in fulfillment of the agreement stated in the complaint. This was certainly disproved, when it appeared that the checks required the defendant to pay their amounts to the order of W. IN". Johnson, and the defendants had paid them without that order.

The next defense was that the checks were drawn to the order of a fictitious person, and that the plaintiff deb'vered them to his clerk who indorsed them in the name of the fictitious payee. The proof was conclusive that the payee, W. IN". Johnson, was a real and not a fictitious person. In one instance the payee was J. D. Johnson. He was a book-keeper of the plaintiff, as I read the testimony of the latter. Before the plaintiff signed the last mentioned check, J. D. Johnson had indorsed it to the order of W. M. Johnson. This defense, therefore, had no evidence to support it.

The next defense was, that after all the money deposited with defendant had been paid upon checks signed by the plaintiff, they stated “accounts between each other, which said accounts so stated showed that the said money had been paid out by this defendant upon such checks, which said checks were from time to time returned to and received by the plaintiff, and thereafter plaintiff assented to, ratified and confirmed such payment of said money.” The only statement of account between the parties was such as consisted of entries made by the defendant, in the plaintiff’s passbook, charging Mm with the payment of the amounts of the checks, which were sent to the plaintiff with the book, corresponding balances being stated in the book.

The checks, with the forged indorsements, were among the checks returned. There was no other ratification of the payment, than the plaintiff not discovering the forgery, for some time, at the longest two years, and not making any claim upon defendant, until the discovery. Of course, whatever was the legal force of the retaining of the book ,by the plaintiff under the circumstances, whether it had only the effect of an admission, or was a technical account stated, the plaintiff had the right to show what errors or mistakes affected the result. The appellant’s counsel urges, that the plaintiff should have pleaded the alleged errors in the complaint or by a reply. He was not called upon to open the account in the complaint (if there were an account stated), because his action was upon the contract set out, and the merit of the defense in its legal nature consisted of its showing a satisfaction of defendant’s obligation under the contract. The defense was affirmative in its character and the plaintiff was not called on to meet it, until it had been pleaded. Of course, under the Code, he was not required to controvert the defense by a reply.

The next defense was, that after the defendant had paid the moneys as the answer had stated, and after the plaintiff had discovered the forgery, he “delayed and failed to take the necessary steps to protect the parties to this action, and acted in collusion with said book-keeper or confidential clerk, both in the drawing, indorsement, delivery and payment of said checks, and ratified, adopted, and confirmed such payment, and authorized said indorsements and payments thereof.” There was no evidence to support this defense."

The last defense was, that the plaintiff “so negligently and unskillfully signed said check and permitted said indorsements so to be made, and entrusted the same to his book-keeper or confidential clerk, and thereby gave him credit, and said checks were paid by this defendant in the usual course of business to this defendant’s damage, to the amount of said sum, with the interest thereon, as stated in the complaint.” The considerations pertinent to this defense, relate to the fact, that when the clerk presented the checks for signing, as being drawn for amounts due, the plaintiff believed the clerk, and did not look at the original entries to learn what the facts were. That is, he trusted his clerk. That trust was not negligence. Of course, handing the checks, after they were signed, to the clerk, was not negligence, nor did that give the clerk any credit with the defendants.

On the evidence in the case, and the stipulation, the judge was obliged to direct a verdict for plaintiff.

Judgment affirmed, with costs.'

Speir and Freedman, JJ., concurred.


text:
    WILLIAM C. KNEELAND, Plaintiff and Appellant v. CHARLES SPITZKA, Defendant and Respondent.
    I. MALICIOUS PROSECUTION.

    1. SETTING ON FOOT PROSECUTION—WHAT IS NOT.
    (a.) A criminal complaint was made hy A., against C. and others, charging them with a conspiracy to defraud by means of false pretenses. On this complaint C. was arrested, and gave bail to appear to answer any indictment that might be brought. B. did not instigate or promote this prosecution, hut after the bail had been given he made, to the justice before whom A.’s complaint was made, a complaint against C. for obtaining money by false pretenses, and asked for a warrant; the justice refused to issue a warrant, but told B. that ho could increase the amount of bail; he did not increase the amount of bail. All the complaints were sent to the district attorney, but it did not appear that B.’s complaint was brought before the grand jury.
    HELD
    1. That no pi'osecution had leen set on foot ly B.

    2. ENDING OF PROSECUTION—WHAT IS NOT!

      (a.) In above case the action of the grand jury refusing to find an indictment on the charge preferred by A., and the consequent discharge of C. from the recognizance given by him on that charge, is not an ending of the prosecution set on foot (if any such was so set on foot) by B.
    Before Sedgwick and Freedman, JJ.

      Decided June 25, 1877.
    Appeal from judgment entered on order at trial dismissing complaint.
    The facts appear in the opinion.

      Albert Day, for appellant.

      Robert D. Green, for respondent.
   By the Court.—Sedgwick, J.

The action was upon an allegation of a malicious prosecution. The following facts appeared in the testimony for plaintiff. One Hoese made a criminal complaint charging the plaintiff and two others with conspiring to defraud by means of false pretenses. The plaintiff was arrested, waived an examination and gave bail to appear to answer any indictment that might be found against him. The bond was given August 30. There was no fact tending to show that the defendant instigated, or in any way promoted the commencement of this prosecution.

After this bond was given the defendant made a criminal complaint against the plaintiff for obtaining money by false pretenses. This complaint was made on September 1. Other complaints of a like nature were made by other parties. The defendant asked that a warrant for plaintiff’s arrest be issued on his complaint. The justice of the peace, who had before him all the complaints, refused to issue a warrant as asked by defendant. He testified that he (when he so refused) told the defendant and the other complainants that he could increase the amount of bail, so as to secure plaintiff’s appearance, the same as if he should take new bonds. He did not increase the amount of bail, because the proof was that the plaintiff gave bail but once, and that was before the day the defendant made his complaint. The justice sent all the complaints to the district attorney. There was no proof that defendant’s complaint was entertained or examined by or offered to the grand jury, or that he appeared as a witness.

On the the trial the plaintiff offered as testimony an order of the court of general sessions. • The evidence was excluded as irrelevant. The order was a discharge of the plaintiff from the recognizance he had given upon the charge of conspiracy, and recited that the grand jury had examined the charge and refused to find a bill.

On these facts it is certain that the plaintiff did not show that the defendant set on foot any prosecution. Even if he wished to do it, the action of the justice prevented him. Even if there had been a prosecution on plaintiff’s complaint, there was no proof that it had been ended. The order of the sessions would have shown only an ending, favorable to the plaintiff, upon the charge of conspiracy made by Hoese.

The judge below properly dismissed the complaint in this action, and the judgment appealed from should be affirmed with costs.

Freedman, J., concurred.


author: By the Court.—Speir, J.

text:
    THE PRODUCE BANK of the CITY OF NEW YORK, Plaintiff, v. JOSEPH MORTON, LEON WEIL, ALPHONSE WEIL and AUSTIN BALDWIN, Assignees, &c., Defendants.
    I. NEW TRIAL.

    1. MOTION FOR, AT GENERAL TERM, UNDER § 268 OF THE CODE.

      (a.) FlNAI, JUDGMENT, WHAT CONSTITUTES.
    1. One setting aside a transfer as fraudulent and void, directing the transferee to account before a referee, thereby appointed, for all property and effects and proceeds thereof received or held by him under the transfer; directing the referee to examine the accounts and doings of the transferee and decide with what sums of money or property he is chargeable, and report thereon; further directing that within ten days after notice of filing the report the transferee, in case no exceptions are filed, or in case exceptions should be filed, then in ten days after the confirmation of the report, pay and deliver over all such moneys and property to a receiver thereby appointed; further directing that out of the proceeds of such property and moneys the receiver pay the plaintiff $458.50 the amount of plaintiff’s judgment against the transferors, with interest thereon, together with the costs of the action, and hold the residue, if any, to abide the further order of the court; and further directing that any of the parties thereto might apply to the court for such other or further judgment or decree as might be just, constitutes A FINAL JUDGMENT.
    Overrules in this respect the former decision in this case. 40 N. 7. Super. Ct. 328.

    H. COURT OF APPEALS.
    1. Decisions not strictly binding authority, effect of.

      (a.) A decision pronounced in the very case in hand, through the opinion of one of its distinguished judges, after careful consideration and cogent reasoning, is, although in strictness not binding authority, is entitled to very great weight.

    Before Sedgwick and Speir, JJ.

      Decided June 25, 1877.
    This action, in the .nature of a creditor’s bill, was brought to set aside an assignment for the benefit of creditors, and was tried in April, 1875, at special term.
    The decision was in favor of the plaintiff, and • on July 12, 1875, the findings of the court or decision were filed, whereby it was found that the assignment was void, and that a receiver should be appointed to take charge of such property and effects as should be found by a referee in the hands of the assignee, to which the plaintiff was declared to be entitled ; and that the receiver should pay out of such property or effects to the plaintiff or its attorneys the costs of the action and the amount of the judgment of July 14, 1874.
    Judgment was entered herein pursuant to such decision on July 21, 1875, in favor of the plaintiff.
    The particular directions of the judgment are given in the head-notes.
    The defendants filed exceptions to the findings, and made a motion for a new trial at general term, under section 268 of the Code, which was argued in December, 1875.
    The motion was granted, and a new trial ordered by decision rendered January 3, 1876.

      D. J. Newland, of counsel, and attorney, for plaintiff.
    Fransioli, Tilney & Mosher, attorneys; A. C. Fransioli, and J. F. Mosher, of counsel, for defendants.

       After the entry of the judgment on the decision at the special term, defendants moved at general term for a new trial. The plaintiff on the argument of that motion insisted that it was not a proper case for such a motion. The motion was granted (40 N. Y. Super. Ct. 328). The plaintiff appealed to the court of appeals. That court dismissed the appeal, on the ground that the subject matter in controversy did not exceed $500; but the learned judge who delivered the decision of the court in the course of his opinion considered the subject as to whether the case presented was a proper one for a motion at general term for a new trial, and came to the conclusion that it was not (1 Abb. New Cas. 174). Thereupon plaintiff moved at general term for a re-argument of the motion for a new trial, and the motion was granted (see ante, this volume, p. 124).
      The foregoing opinion was delivered on the re-argument.

   By the Court.—Speir, J.

This is a motion of the defendants for a new trial on a case and exceptions under section 268 of the Code. The general term of this court, in 1875, granted the same motion then originally made, and the plaintiff appealed to the court of appeals. The appeal was dismissed for the reason that the amount in controversy was held by it to be under five hundred dollars.

The court, however, gave a full opinion.

It comes before this court again on a re-argument of the defendants’ motion for a new trial, as originally made at the December term, 1875, after leave obtained on the application of the plaintiff to the January general term last.

The only question before the court now is, was the case properly before the general term, on this motion for a new trial, or should the defendants have appealed ? On the part of the plaintiff it is claimed that it is not a case under section 263, and that the defendants’ remedy was by appeal. If this position be correct, it is plain that the court could not, and did not obtain jurisdiction, or power to hear and determine the case on its merits.

The language of the Code, in section 268, is “ that where the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee .or otherwise, either party may move for a new trial at general term, and for that purpose may within ten days after notice of the decision being filed, except thereto, and make a case or exceptions as above provided in case" of an appeal.”

The point presented is sharply and clearly defined. Did the decision of the court below authorize a final judgment ? If it did, then the defendants erred in bringing the case for review before the general term on a motion for a new trial instead of appealing.

The power of the general term and its jurisdiction to hear a motion brought before it for a new trial is derived exclusively under the provisions of section; 268 as therein expressed, and can be applied only to the particular case coming under that section. The' only power the court has to act at all upon such a motion is to dismiss it where, by the character of the' decision of the special term, it is not and cannot be brought under the requirements of the section. Whether ttie judgment below was a final judgment between the parties in any case must depend upon this : Was there any further question or issue between them to be litigated? The plaintiff’s right to be paid does not depend upon the result of the receiver’s action, whatever that may be; nor does it depend upon the amount which may be in the assignees’ hands. The right to recover through the agency of the receiver the judgment, a fixed and definite sum, with interest thereon, and the costs of the action, or so much thereof as the sum found will pay, has been finally determined by the judgment between the parties to the suit. ‘ ‘ A judgment (defined by the Code, section 245), is the final determination of the rights of the parties in the action.” The judgment itself neither in terms nor by the import of its provisions suggests the existence of any matter of further litigation between -the plaintiff and defendants. This question was virtually decided by Bosworth, Ch. J., in Gray v. Cook (24 How. Pr. 432); where it was held that a direction that the plaintiff have judgment for a certain amount against the defendant as administrator, and that he pay said moneys into court, to await the further order of the court, and to be distributed according to law, is a final judgment against the defendant as between the parties (See also Geery v. Geery, 63 N. Y. 255).

The court of appeals have pronounced their views on the question in a full opinion. But the defendants claim that this opinion of the court on this point is not a binding authority on this court, as the appeal therein was dismissed. This in stricttiess is undoubtedly true. But as it is the decision of the court pronounced through the opinion of one of its distinguished judges in this very case after careful consideration and sustained by cogent reasoning, it seems to me to be entitled to very great weight. The court say:

“We are inclined to the opinion that this point is well taken, and that the judgment was final and reviewable by appeal. There was nothing left to be judicially determined. The Amount of the plaintiff’s claim was ascertained, judgment was rendered that the assignment be set aside, that the assignee deliver over the assigned property to a receiver, and that the plaintiff be paid out of the proceeds the amount of his claim and costs. This was a final disposition of the whole controversy, and no further judgment was to be rendered. The machinery of a reference and receivership was for the sole purpose of carrying the judgment into execution, and not the foundation of any further judicial action in the case.”

The defendant’s motion for a new trial must be dismissed with costs.

Sedgwick J., concurred.


text:
    MARSHALL IBBOTSON, Plaintiff and Respondent, v. JACOB A. SHERMAN, Defendant and Appellant.
    I. PERFORMANCE, SUBSTANTIAL, WHAT LS NOT.

    1. Contract por publishing.

      (a.) Where J. contracted with S. to insert a certain advertisement in 30 different newspapers for a period of one year in consideration of a certain sum to be paid quarterly in advance, and during the quarter for which suit was brought the advertisements was omitted in seven consecutive issues of one Of .the papers,
    HELD
    not a substantial compliance.
    (1.) An inference springs from this that J. was either Negligent or intentionally in fault.
    H. JUDGMENT ON REFEREE'S REPORT.

    1. Reversal on questions op pact.
    («.) In above case where a witness swore to the non-inserfc&a ;ih seven consecutive issues of one of the papers and produced "-the issues of the papers, and J. as a witness swore that he put the advertisement in 34 papers and that it was in all of them for & months to his own knowledge; hut also swore that he himself had received the issues of but 20 papers and gave an unsatisfactory account as to the other 10; and the referee decided as matter of fact there was a substantial performance,
    HELD
    the evidence did not establish substantial performance, and the judgment should be reversed, m. DES AD JUDIO ATA.—JUDGMENT.

    1. CONTRACT CALLING FOR PAYMENT BY INSTALLMENTS.
    (<z.) Recovery of judgment fob first installment, effect of.
    1. Conclmim as to the validity of the contract.
    2. Also as to matters necessary to be established to warrant the judgment for the first installment, and equally necessary as a foundation for the recovery of each of the other installments.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided June 25, 1877.
    Appeal from judgment entered on report of referee.
    The plaintiff as assignee of one Jacobs brought this action for three installments, alleged to be due by the defendant, under a contract. The first installment had "been paid under the judgment hereafter referred to. The contract, made October 26, 1870, was that Jacobs agreed to advertise the defendant’s card, “the same as now in Frank Leslie, in thirty papers for one year, with good notices once in six months, for six hundred dollars, to be paid quarterly in advance. Any of the papers failing to give the advertisement and the notices, others shall be used equally as good and desirable. The papers are the following,” and their names were set down. The complaint alleged that a substituted list of papers, in number thirty, had been .made under the agreement, and that advertisements had been inserted in them, in pursuance of said agreement.
    The complaint also averred that said Jacobs commenced an action in the mariné court, on January 27, 1871, for the recovery of the first two installments, in which action defendant appeared and answered ; that a trial of said action was had, on which both parties introduced evidence as to whether there was any contract binding on the defendant, and if so whether the said Jacobs had performed the same; that in said action, said Jacobs recovered judgment in the marine court for $300, and costs, being for the first two installments of $150 each ; that on appeal to the general term of the court of common pleas by the defendant, that court reversed the judgment so far as the same related to the recovery of the second installment only, on the ground that the action was prematurely brought therefor, but affirmed it as to the first installment; and that defendant has since paid the same.
    The answer alleged that the agreement was not to be performed within one year, and was not signed by either of the parties, and was therefor invalid, void, and of no effect; it then admitted the commencement of the marine court action, and the recovery of the judgment therein as alleged in the complaint, and the payment thereof, and that the amount of the original judgment was reduced on appeal; and otherwise made a general denial.
    The referee found for the plaintiff, for the second installment, and that the plaintiff’s assignee had made substantial performance during the second quarter.

      H. M. Whitehead, for appellant.

      S. S. Harris, for respondent.
   By the Court.—Sedgwick, J.

As the promise by defendant was to pay in advance, probably it was not material to the plaintiff’s cause of action to aver that there had been performance of what his assignor had promised to do after the payment was to be made. The subsequent non-performance, if there were such, was to be pleaded by defendant, to show that the consideration had failed, or as a counter-claim. But on the trial, no regard was had to the pleadings, and the important question was whether the proof showed that plaintiff’s assignor Jacobs had advertised for the second quarter as he had agreed.

On this question of fact, the referee found at first, that Jacobs had performed for the second quarter, but in answer to a request of defendant he found that “it was necessary for Jacobs to have made substantial performance during the second quarter, and that he did so perform.” On looking at the testimony it will be found, that the points of non-performance, as proved affirmatively, were these, that during the second quarter one of the papers in the list had omitted the advertisement, in one of its issues, and another in seven consecutive issues. Perhaps an omission for one or two or three weeks, against a contract made by Jacobs with the papers, would be of such comparative unimportance that there might be said to be a substantial compliance, if that were the only omission. But when there has been no advertisement for seven weeks, the default is not trifling, but is important to the interests of the defendant, and from it springs the inference that Jacobs was negligent, or intentionally in fault. It is suggested that the proof did not show that the paper which was produced and which did not have the advertisement for seven weeks, was on the list. But this does not seem correct. The name of the paper as given by the witness is not on the list. The witness however swore that it was one of the list, and the papers were introduced in evidence. It was probably the fact that the witness made a verbal slip.

Coupled with this direct evidence, Jacobs, as a witness, failed to prove that the advertisement had been in all the papers. Although he swore on his direct examination that he put the advertisement in thirty-four papers, and that it was in all of them for six months to his own knowledge; yet he also swore that he had received himself the issues of but twenty papers, and gives an unsatisfactory account as to the other ten. It is clear that he had seen only a part of these ten occasionally, and some he had not seen at all. To me, the evidence does not show that there was a substantial performance, and for this reason the judgment should be reversed.

The judgment in the marine court, as admitted by the pleading, established the existence and validity of the contract, and also that the second list of papers had been competently substituted for the first.

The form of the so-called “notices” and their situation as advertised by Jacobs was sufficient.

The judgment should be reversed, a new trial ordered, and the order of reference vacated, with costs to appellant to abide the event.

Speir and Freedman, JJ., concurred.