author: Bartlett, J.:

text:
    THE NATIONAL BROADWAY BANK, Respondent, v. DAVID G. YUENGLING, Jr., Appellant, and Others.

      Defect of fourties defendant.

    In an action brought by a judgment-creditor to set aside certain conveyances made by a limited copartnership to a corporation, and to have a certain mortgage, Avhich had been executed by the corporation to the Farmers’ Loan and Trust Company, as trustee, adjudged fraudulent, it appeared that the transfer and mortgage thus attacked were made under an agreement between the limited copartnership and a corporation, and one of the members of the copartnership, individually, and certain creditors of such parties, and three trustees, by which it was provided that a new corporation, to be known as the David G. Yuengling, Jr., Brewing Company, should be organized, to which the pi operty of the limited copartnership, and of the individual member thereof, should be transferred, in consideration of which it should assume payment of all indebtedness owing to the creditors of the firm, and of the individual member thereof, and of the New York and Staten Island Brewing Company, who should sign such agreement.
    The complaint alleged that the agreement was carried out, but that the conveyances and transfers thereunder were made by the copartnership and the individual member thereof, and were accepted by the David G. Yuengling, Jr., Brewing Company with the intent and for the purpose of hindering, delaying and defrauding their creditors.
    Neither the New York and Staten Island Brewing Company, nor any of the creditors who signed the agreement, were made parties to the action, to the complaint in which the defendant Yuengling demurred on the ground that they were necessary parties to the action.

      Held, that the demurrer should be sustained.
    That as the complaint attacked not merely the conveyances and transfers of the judgment-debtor’s property, which were made pursuant to the agreement, but assailed the agreement itself, and further alleged that all the parties to the agreement had notice at the time it was executed of the intention to hinder, delay and defraud creditors, and asked that the said agreement be declared null and void as against the plaintiff, that the court could not properly adjudicate that the New York and Staten Island, Brewing Company, and the creditors signing this agreement, entered into the same knowing it to be fraudulent without affording them an opportunity to be heard on that subject.
    That these creditors were not represented in this respect by the Farmers’ Loan and Trust Company, which was made a party defendant to the action, as that corporation was not a trustee for these creditors as to any rights they had acquired directly under the agreement, nor the representative of the creditors in entering into the agreement.
    Appeal by the defendant David G. Ynengling, Jr., from a judg. ment of the Supreme Court, overruling a demurrer interposed by said defendant to the plaintiff’s complaint, which judgment was entered in the office of the clerk of the county of New York on the 12th day of April, 1889.
    The demurrer was interposed on the ground that there was a defect of parties defendant.

      Moses Weinman, for the appellant.

      Charles A. Meshon, for the respondent.
   Bartlett, J.:

The National Broadway Bank is a judgment-creditor of the defendant David G. Yuengling, Jr., having recovered twenty judgments against him as the general partner in a limited copartnership doing business under the firm name and style of D. G. Yuengling, Jr., the special partner being the defendant William Belden. The present suit is brought by the bank to set aside certain conveyances, transfers and assignments made by this firm of D. G: Yuengling, Jr., and by the defendants Yuengling and Belden to a corporation known as the D. G. Yuengling, Jr. Brewing Company, and also to have certain mortgages adjudged fraudulent which had been executed by the said corporation to the Farmers’ Loan and Trust Company, as trustee, in so far as the same cover property against which the plaintiff’s claims would be enforceable if still in the hands of the limited partnership or of the members of that firm.

The transfer and mortgage thus attacked were made under and pursuant to an agreement between David G. Yuengling, Jr., and William Belden, composing the firm already mentioned; David G. Yuengling, Jr., individually; The New York and Staten Island Brewing Company; such creditors of the three parties already mentioned as actually signed the instrument; and Conrad N. Jordan, George NX. Hard and Octavius D. Baldwin as trustees. This agreement recited that the firm, the defendant Yuengling, individually, and the New York and Staten Island Brewing Company had incurred obligations which they were unable to meet at maturity, but that they claimed to have assets, respectively, more than sufficient to discharge their respective obligations if the same were properly administered in connection with the brewing business of said firm and company. To this end it went on to provide that the defendants Yuengling and Belden should procure the formation of a corporation to be known as the D. G. Yuengling, Jr., Brewing Company, with a capital stock of two millions, to which should be transferred the property of the limited copartnership and of the defendant Yuengling individually, in return for which the corporation thus organized should issue its capital stock to the firm, and would assume payment, by means of its mortgage bonds, of all the indebtedness owing to such creditors of the firm and of the defendant Yuengling individually, and of the New York and Staten Island Brewing Company, as should sign the agreement, such indebtedness not to exceed $1,500,000 in the aggregate. It further provided that the new corporation should execute a mortgage to the Farmers’ Loan and Trust Company upon the property thus transferred to it, to secure payment of the bonds which were to be «issued to the creditors who signed the instrument; that the limited copartnership should assign to Messrs. Jordan, Hard and Baldwin, as trustees, all the capital stock in the new corporation to be held by them as security for the payment of the mortgage bonds, and the copartnership and the New York and Staten Island Brewing Company should also procure all the capital stock of the latter corporation to be assigned to the same trustees as like security ; and that the creditors of the firm and of the defendant Yuengling individually, and of the New York and Staten Island Brewing Company who signed, should accept the mortgage bonds of the new corporation in full release, satisfaction and discharge of their several claims. The complaint alleges, in substance, that this agreement was carried out, but that the conveyances and transfers thereunder were made by the defendant Yuengling and his firm and accepted by the D. G. Yuengling, Jr., Brewing Company, with the intent and for the purpose of hindering, delaying and defrauding their creditors. The New York and Staten Island Brewing Company was not inade a defendant in the present suit, nor was any one of the creditors who signed the agreement, and the defendant Yuengling demurred to the complaint, on the ground that both the brewing company and these creditors were necessary parties to the action. ITis demurrer was overruled at the Special Term and he has appealed to this court.

We think the demurrer ought to have been sustained. The complaint does not merely attack the transfers and conveyances of the judgment-debtors’ property which were made pursuant to the agreement that has been mentioned, but it assails the agreement itself. In the fifth subdivision of the complaint is an express averment that “the said agreement was made by the said firm of D. G. Yuengling, Jr., and the said David G. Yuengling, Jr., with intent to hinder, delay and defraud their creditors, and among them this plaintiff; ” and further, that all the parties to the agreement had notice at the time it was executed of such intent to hinder, delay and defraud. And in the demand for judgment, the first prayer for relief is that the said agreement of October 22,1887, be declared in all respects null and void as against the plaintiff. The averments of the complaint, as already set forth, suffice to show the existence of an interest on the part of the New York and Staten Island Brewing Company and the signing creditors, in opposition to any judicial action which might invalidate the agreement even as to a third party, like the present plaintiff; and we do not see how the court could properly adjudicate that this corporation and these creditors entered into the agreement knowing it to be fraudulent, as the complaint charges that they did, without affording them an opportunity to be heard on that subject. They are parties to the agreement and they must be parties to any suit in which the agreement is annulled.

A different question would be presented if the plaintiff had made no reference in his complaint to' the agreement; but had attacked only the subsequent transfers and conveyances.

It was the opinion of the learned judge at Special Term that the creditors were sufficiently represented by the Farmers’ Loan and Trust Company, which has been made a defendant. That corporation-, however, is not a trustee for these creditors as to any rights which they have acquired directly under the agreement; nor does it appear to have been in any sense the representative of the creditors in entering into the agreement. It is merely their trustee under the subsequent mortgage, and this relation does not make it an adequate representative of the creditors in an action to set the agreement aside.

The interlocutory judgment should be reversed, with costs, but with leave to the plaintiff to amend the summons and complaint upon the payment of such costs.

Barrett, J., concurred ; Yan Brunt, P. J., concurred in result.

Judgment reversed and demurrer sustained, with costs,-and with leave to the plaintiff to bring in other defendants, if so advised, and to-amend summons and complaint upon paying costs of the court below and of the appeal.


source: Caselaw Access Project

author: .Barrett, J.:

license: Public Domain

text:
    ELIZUR V. FOOTE, Appellant, v. THE MANHATTAN RAILWAY COMPANY and Another, Respondents.

      Reservation of all claim for damages, accrued and to arise to the land conveyed, resulting from the operation of an elevated railroad — what owner is affected thereby.

    One Latlirop, in conveying a piece of property in the city of New York on West Fifty-third street, in front of which an elevated railroad had been constructed, by an independent and unrecorded agreement reserved “all right claim and demand heretofore accrued or arising, or which may hereafter arise or accrue to either of the parties to this agreement, against any and every corporations and corporation, person and persons, for or by reason of the erection and building and maintaining of the elevated railroad as at present constructed in Fifty-third street, in front of the premises above described,” and the right “to sue for, collect, compromise, compound and receive to his own use, and release and discharge, any and every such claim and demand now existing and accrued, or hereafter to arise and accrue, against any corporation or corporations, person or persons, for such elevated railroad, and the using and running of the same.”

      Held, that as the instrument in which this reservation was contained was unrecorded, a purchaser from Lathrop’s grantees was not bound thereby.

      Semble, that this was not a reservation of an easement, but simply of the claims for damages which had been sustained by the grantor by reason of the continuous trespasses of the elevated railroad while he was owner of the property, and also of the claims which might thereafter accrue to his grantees for such damages as they should sustain by reason of like trespasses during their ownership.
    That the instrument containing these reservations was a mere personal contract, ' binding only on the parties thereto, the grantor and grantees, and that a.purchaser from such grantees was entitled to bring an action to restrain the railroad company from operating its railroad in front of the premises, because of a continuous invasion of the plaintiff’s easement in the street, notwithstanding the fact that the railroad company had obtained from the grantor, Lathrop, a conveyance of his rights and such easements as were affected by the operation of its road.
    That the easements in question being appurtenant to the land and incident to its use, Lathrop, the grantor, could not reserve to himself the right to restrain their invasion after he had ceased to own the property.
    Appeal by the plaintiff Elizur Y. Foote from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of February, 1890, dismissing the plaintiff’s complaint after a trial at the New York Special Term.

      L. O. Dessar and Joseph B. BeilVy, for the appellant.

      Julien T. Davies and E. G. James, for the respondents.
   .Barrett, J.:

This is an action to restrain the defendants from operating their elevated railroad in front of the plaintiff’s premises, No. 104 West Fifty-third street, in this city, because of a continuous invasion of the plaintiff’s easements in that street. The complaint was dismissed upon the ground that the plaintiff had no title to such of these easements as are occupied by the defendants for the purpose of their railroad. The' plaintiff purchased the property in June, 1885, from James B. Grillie and Alexander Walker, receiving a full covenant warranty deed. In this deed the premises were properly described, and such description is followed by the usual phrase “ together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining.” This deed unquestionably carried with it the easements in question. Mr. Hilliard, in his work on Real Property ([3d ed.], vol. 2, p. 356) says: “An easement appurtenant to land passes with the land though the deed neither mentions the easement nor privileges and appurtenances generally, unless it be expressly reserved by the deed or by another made at the same time.”

And in Huttemeier v. Albro (18 N. Y., 51), Strong, J., observed: “ It is a general rule that, upon a conveyance, of land, whatever is in use for it, as an incident or appurtenance, passes with it.”

The easements in the case at bar were appurtenant and appendant to the estate conveyed. Therefore, they ran with the land and passed by the deed of conveyance. (Hills v. Miller, 3 Paige, 254; Manderbach v. Bethany Orphans' Home, 1 Cent. Rep. [Pa.], 402; Kuecker v. Voltz, 110 Ill., 264.) The defendants claim to have purchased so much of these easements as are occupied by them for the purposes of their railroad, The purchase, however, was from a former owner of the land (Mr. Lathrop), and was made long after the plaintiff acquired title. Mr. Lathrop conveyed the premises in question to the plaintiff’s grantors (Messrs. Gillie and Walker) by a full covenant warranty deed containing the same description and the same phrase respecting appurtenances which we find in the plaintiff’s deed. It seems, however, that Mr. Lathrop, by an independent agreement with Messrs. Gillie and Walker, reserved certain rights, claims and demands against these defendants, and it was because of this reservation that he claimed the right to sell these easements to them, even after Messrs. Gillie and Walker had conveyed to the plaintiff. The reservation signed and acknowledged by Gillie and Walker was in these words:

“ The party of the second part having agreed to convey to the party of the first part the premises on the southerly side of West Fifty-third street, in the city of New York, 25 feet in width by one hundred feet in depth, one hundred feet easterly of Sixth avenue. Now, it is mutually agreed between the parties that all right and claim cmd demand heretofore accrued or arisen, or which may hereafter arise or accrue, to'either of the parties to this agreement against any cmd every corporations and corporation, person cmd persons, for, or by reason of.the erection and building and maintaining of the elevated railroad, as at present constructed in Fifty-thi/rd street, in front of the premises above described, on West Fifty-third street, and the running and using of the same shall belong to, and are hereby retained by and reserved and granted to William J. Lathrop, Jr., and his legal representatives and assigns, and are hereby excluded and excepted from any and every grant and conveyance of said premises, or any part theieof, with full liberty and power and authority to said Lathrop to sue for, oolleot, compromise, compoumd and receive to Ms own use, and release and discharge any and every such claim and demand now existing and accrued, or hereafter to arrise and accrue against cmy corporation or corporations, person or persons, for such elevated railroad, and the using and running of the same?

This was not a reservation of the easement or of any part of it. It was simply a reservation of Mr. Lathrop’s rights, claims and demands against these corporations for the damages which he had sustained by reason of their continuous trespasses while he was the owner of the property; a reservation also of the rights, claims and demands which might thereafter accrue to Messrs. Gillie and Walker for such damages as they should sustain by reason of like trespasses during their ownership. And these reservations were a mere personal contract, binding only on Gillie and Walker.

The easements in question being appendant to the land and incidents to its use, Mr. Lathrop could not reserve to himself the right to restrain their invasion after he had ceased to own the property. The right to enjoin the continuous deprivation of such incidents can-only be possessed and enforced by the owner of the fee. He alone can be interested in maintaining free access to his premises, and in defending the incidental enjoyment of light and air.

But even if these easements could be and were reserved, the plaintiff purchased from Gillie and Walker without notice of such reservation. The instrument under which such reservation is claimed was not recorded, and the plaintiff was certainly not put upon inquiry as to an unrecorded document limiting the estate granted in a recorded deed. The only inquiry put upon the plaintiff was as to the rights of the defendants. If they had purchased the easements from some one authorized to sell them before the plaintiff acquired his title, he would have taken subject to the rights thus secured. (Mitchell v. Metropolitan Elevated Railroad Company, 56 Hun, 543.) But it would be a strange doctrine that would require a purchaser to look up former owners of land to see whether they have privately reserved easements which are fully covered by their recorded deeds.

The plaintiff made out a proper case for the usual relief in this class of actions, and the judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

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

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


author: Yan Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE FRINDEL, Appellant.

      Evidence—unsworn statement of a child—quarrelsome character of a complainant against one indicted for an assault.

    It is not proper or permissible on a criminal trial, where a child of eight years of age is called as a witness, who shows from his testimony that he has no apprehension of the nature of an oath, to permit him to testify without being sworn, and accept the unsworn statement of the witness for what it is worth.
    On the trial of a prisoner charged with having committed an assault in the second degree, the quarrelsome character of the complainant cannot be shown by proof of specific acts on his part, nor is evidence as to his general reputation in that respect admissible, where it is not claimed by the prisoner that the act complained of was committed in self-defense.
    Appeal by the defendant George Frindel from a judgment of conviction of an assault in the second degree, entered in the office of the clerk of the county of New York on the 27th day of February, 1890.
    The defendant was indicted for assault in the first degree, the indictment charging that he feloniously made an assault upon the body of one Michael Buhner with a certain knife, and did will..fully and feloniously strike and cut the said Michael Buhner with intent to kill him.

      A. Steclder, for the appellant.

      M. Semple, for the respondent.
   Yan Brunt, P. J.:

This appeal presents for review the question as to the propriety of the rulings of the court in excluding evidence offered by the defendant of the complainant’s character for quarrelsomeness.

This evidence was of two classes: One, an attempt to prove specific acts, and the other to establish the' complainant’s general reputation in that respect. It is not necessary to nmltiply authorities to show that evidence of specific acts is not admissible. (Thomas v. People, 67 N. Y., 218.) Neither was the evidence, as to general reputation, admissible in view of the nature of the defense, because it was not at all claimed by the prisoner that the act was committed in self-defense. Upon the contrary, he testified that the complainant ran into the knife himself, and that the knife was not taken out for any purposes of self-defense, but simply to scare the complainant. This seems to bring the case within the principle of Abbott v. People (86 N. Y., 470), in which it is held that testimony of a quarrelsome disposition is not admissible where, under the circumstances, there is no ground for claiming that the act for which the prisoner is being tried was committed in self-defense.

There is another reason why no error was committed in the exclusion of this testimony. At the time it was offered no evidence whatever had been given of an assault by the complainant upon the defendant, and the judge in excluding the testimony expressly stated that he excluded it at that stage of the case, and after the testimony of the defendant of an assault by the complainant, no offer of the testimony was made.

Another point is raised that the counsel for the defendant, after the people had rested their case, asked the court to take from the jury the consideration of the first count in the indictment which charged assault in the first degree. This was refused and the defendant excepted. The prisoner, however, does not seem to have been in any way injured by this ruling, because he was not found guilty of assault in the first, but in the second degree. It does not appear that the jury were influenced by it, nor that he was damaged thereby.

Another point raised is that a child of eight years called as a witness for the defendant, who showed, from his testimony that he had no apprehension of the nature of an oath, was not permitted to testify. It is claimed that it is a well known practice in criminal trials, wben such a witness is called by either party, to take the unsworn statement of the witness for what it is worth. With all due respect to the learned counsel, we are not aware of any such, rule or any such practice.

The law requires the testimony of witnesses to be given under the sanctity of an oath; and where a child is of such tender years as not to be able to comprehend the nature of an oath it seems to us. that the safeguards which the law has placed around human testimony would be entirely overthrown, were its statements permitted to be given.

There does not appear to be any error which calls for a reversal of the judgment, and it should be affirmed.

Brady and Daniels, J J., concurred.

Judgment affirmed.


author: Bartlett, J. : Tan Brunt, P. J.: Barrett, J.

text:
    RALPH H. WHITE and HENRY A. BELCHER, Plaintiffs, v. SAMUEL EISEMAN and MOSES L. EISEMAN, Defendants, Impleaded, etc.

      Limited partnership—money paid in by special pairtnersby a check, not cashed when the affidavit and certificate were made—liability of the special pmtners.

    Where an affidavit and a certificate, made under section 8 of title 1 of chapter 4 of part 2 of the Revised Statutes (1 R. S., 765), relating to limited partnerships, states that $10,000 contributed by two special partners, named therein, to the common stock, has been actually and in good faith paid in cash, and it appears tha<, in fact, no cash payment had been made by the special partners at the time the affidavit was verified, but a check for $10,000 had been drawn on that day by such special partners, which was certified on the following day, and was deposited to the credit of the partnership on the next day thereafter, on the afternoon of which latter day the certificate and affidavit were filed and recorded in the proper county clerk’s office, and that the next day the check was paid in due course of business to the bank in which it had been deposited.

      Held, that the special partners were liable for the debts of the partnership. (Barrett, J., dissenting.) . .... .
    That the truth of the affidavit was to be determined at the date at which it was sworn to, and not as of the date at which it was filed in the county clerk’s office, and that the affidavit was, therefore, false.'

      Exceptions ordered to be heard at the General Term in the first instance, after a trial at the New York Circuit on October 15,1889, at which a verdict was directed in favor of the plaintiffs for $1,463.
    The action was brought to recover from the defendants, who were special partners in the firm of Spencer & Perkins, a demand existing in favor of the plaintiffs against that firm, on the ground that the defendants were liable as general partners.
    The complaint alleged, among other things, “ that the amount of capital stated in the said certificate and affidavit to have been paid in cash by the defendants, Samuel Eiseman and Moses L. Eiseman, had not, either at the time of the execution or filing of the said certificate and affidavit, been paid in cash, and that such certificate and affidavit are false.”

      Charles Austin McMahon, for the plaintiffs.

      A. Blwmenstiel, for the defendants.
   Bartlett, J. :

Section 1 of the title of the Revised Statutes relating to limited partnerships (1 R. S., 165), requires that at the time of filing the original certificate an affidavit of one or more of the general partners shall also be filed in the office of the county clerk, stating that the sums specified in the certificate to have been contributed by each of the special partners to the common stock have been actually and in good faith paid in cash.

The next section (§ 8) is in the following words: “No such partnership shall be deemed to have been formed until a certificate shall have been made, acknowledged, filed and recorded, nor until an affidavit shall have been filed as above directed; and if any false statement be made in such certificate or affidavit, all the persons interested in such partnership, shall be liable for all the engagements thereof, as general partners.”

The question in the present case is whether the defendants Eiseman are liable as general partners in the firm of Spencer & Perkins by reason of the fact that a false statement was made in the statutory affidavit. The affidavit was made by Sidney S. Spencer, one of the general partners in the firm, and was sworn to in the county of Rensselaer on the 3d of August, 1886. The certificate, which appears to have been executed and acknowledged by all the partners on the same day, specified $10,000 as the sum contributed by the special partners, Samuel Eiseman and Moses L. Eiseman, to the common stock. The affidavit stated “ that the sum specified in said certificate to have been contributed by the special partners to the common stock has been actually and in good faith paid in cash.” As a matter of fact, however, no cash payment of the contribution of the special partners had actually been made at the time this affidavit was verified, nor was any cash payment thereof actually made at any time on the 3d day of August, 1886. A check for $10,000 on the Pacific Bank, payable to the order of Spencer & Perkins, was drawn by the defendants in the city of New York on August 3, 1886, and delivered to Sidney S. Spencer, the general partner who made the affidavit. The check was uncertified, but was certified on the following day, the fourth, and was deposited to the credit of the partnership a day later, on the fifth, in the city of Troy, at two o’clock in the afternoon. The certificate and affidavit were filed and recorded in the office of the county clerk of Bensselaer county on the same afternoon at a quarter to five o’clock. The check was paid in the due course of business on the 6th of August, 1886, to the Troy Bank in which it had been deposited.

Upon these facts the plaintiffs insist that the defendants Eiseman are liable as general partners, because, at the time the affidavit of the general partner was made it was not true, as therein stated, that the contribution of the special partners had been paid in cash; while the defendants contend that, inasmuch as the check had been certified and deposited in the bank account of the firm before the certificate and affidavit were filed, the statement contained in the affidavit must be regarded as true, because the affidavit is to be deemed to speak, not from the time when it was verified, but from the time when it was placed on file in the office of the county clerk.

The defendants, in support of their position, cite the various decisions holding that a substantial compliance with the terms of the statute concerning limited partnerships is all that will be insisted upon by the courts; that mere defects of form may be overlooked and'disregarded ; and that the provisions of the act should not be too strictly construed. There is no occasion to question the correctness of any of these propositions in the slightest degree in the case before us. Here, if there has been any failure to comply with the requirements of the statute at all, it is a failure in a matter of substance. The truthfulness of the statutory affidavit-is made, by the very terms of the law itself, essential to the valid constitution of a limited partnership, so that the only test which it is necessary to apply is a reference to the facts to ascertain whether they accord with the statement in the affidavit. In the present case it is plain that they do not, if the affidavit is to be construed as speaking with reference to the existing state of things at the time when the general partner swore to it. On that day there had been no act by or in behalf of the special partners which amounted to a completed cash payment of their contribution to the capital on any theory. The defendants cite Durant v. Abendroth (69 N. Y., 148) and the Metropolitan Bank v. Sirrett (97 id., 325) as authorities to the effect that the giving of a certified check is equivalent to a payment in cash; but whether that be so or not, no one pretends that the giving' of an uncertified check by the special partners to the general partners constitutes the cash payment which the statute prescribes. The question upon which the case at bar, therefore, turns is simply this: Is the truth of the statement contained in the affidavit to be determined as of the time when the affidavit was filed with the county clerk, or with reference to the time when the affidavit was actually verified by the general partner who made it %

So far as the certificate is concerned, it has been held to be sufficient that it shall be true at the time of filing and recording it. (Ropes v. Colgate, 17 Abb. N. C., 136.) It may well be that this unverified instrument can properly be signed before the events of which it is intended to be evidence have actually come to pass, so long as the signers are actuated by the intent that it shall not be used in any manner until the statements which it contains actually accord with the facts. Under such circumstances, until the certificate is placed in the hands of the county clerk to be filed and recorded, it is like a deed in escrow. But I do not see how any such view can possibly be taken of the affidavit. An affidavit must be true when it is made or it can never be true at all. The subsequent occurrence of the events therein stated to have happened cannot make the statement true that they had already happened at the time the affiant swore to it. In other words, affidavits cannot be made in escrow, because the affiant hopes or believes that what he swears to will afterwards come true. To tolerate or sanction the doctrine that an affidavit' speaks only from the time when it is used, instead of from the time when it is made, would be to encourage careless swearing and perjury.

I see no room for doubt in this case that the statement contained in the affidavit of the general partner was false, and, therefore, rendered the special partners liable for the engagements of the firm. It is my opinion, therefore, that the exceptions in behalf of the defendants Eiseman should be overruled, and that the plaintiffs should have judgment upon the verdict.

Tan Brunt, P. J.:

I concur in the conclusion reached by Mr. Justice Bartlett in this case. The statute in respect to the formation of limited partnerships exempts the special partner from the ordinary personal liability of a partner if certain requirements of the statute are complied with, one of which is the making and filing of an affidavit that the special cajutal has been actually paid in cash; now, as I understand it, an affidavit false when made always remains false, and the subsequent happening of the event sworn to does not make it true.

An affidavit cannot be made and delivered to be held in escrow, to become an affidavit if the events sworn to as having taken place, but which have not, in fact, happened, do at some future time occur, otherwise to be null and void. The requirements of the statute are simple enough and easily followed. If the special partner thinks they are otherwise, he need not embark in the adventure. The hardships referred to by Mr. Justice Barrett seem to me to be more imaginary than real; and if following the plain requirements of the statute is deemed impossible, nobody is bound to incur any risk, as no one is required to seek the shelter of the statute.

Barrett, J.

(dissenting):

I am unable to concur with my brother Bartlett in this case. .It seems to me that the strict letter of the statute should not be applied against a special partner where every essential has been complied with. Here the special partner’s certified check for the amount of his contribution to the capital was actually on deposit in the firm’s bank at the time when the certificate and affidavit were filed. Every statement contained in these papers was true at the moment of such filing. If this affidavit, just as it stood, verbatim et literatim, had been reverified a moment before the filing, it is not pretended that the special partner would have been liable. A special partner cannot make this affidavit. That must be done by one or more of the general partners. If the affidavit is false, the special partner is nevertheless liable. Thus the burden is put upon him to see to it that a truthful affidavit is filed. If here the special partner had read the affidavit at the moment of filing, he would have seen that the exact truth was stated therein. Yet he is sought to be held because he did not happen to observe the precise date of the jurat. Upon this construction of the statute, even lynx-eyed observation of the date of the jurat would not always avail the special partner. For, as a matter of fact, the affidavit might have been sworn to upon the very day when the cash was actually paid in, but yet a few hours before such payment. Such a claim, if allowed, would sacrifice substance to form, and if pursued with regard to the statute generally, would ruin innocent people upon pure technicalities. In my judgment, the false statement contemplated by the statute, 'whether made in the certificate or in the affidavit, is a statement which, when it meets the eye of the public, is in any particular misleading. “ The object of the statute,” said Folger, J., in Van Ingen v. Whitman (62 N. Y., 520), “is, by the payment into the capital of a specified sum in cash, to give reasonable security to the portion of the public likely to deal with the partnership; and to insure the payment of that sum, thus, it requires the affidavit that the payment thereof has been thus made before the partnership can start as a limited one. The statement of the amount of the cash payment is required so that the public may guage thereby the extent of its dealings with the firm. The affidavit is called for that the public may hare relia/nce upon the existence of the fact of payment!

That the statute should receive a reasonable construction was held by the Court of Appeals in President, etc., v. Laimbeer (108 N. Y., 582). In that ease Peckham, J., speaking of the plaintiff’s contention that the statute must be strictly construed and all its provisions fully and even technically complied with before exemption from general liability can be claimed, observed:

“Acts providing for the formation of a limited partnership should receive a reasonable construction, not such as to make its formation almost impossible, and not such that where the slightest and most innocent (and to third persons an entirely harmless) deviation from the strictest construction that can be given to a statute shall work results to the special partner of possibly a most disastrous and utterly ruinous nature, including liability for enormous debts incurred by the general partners where the credit given was not in the least based upon any assumed liability of the special partner greater than the capital he had contributed.”

In Durant v. Abendroth (69 N. Y., 148) the certificate and affidavit were actually filed on the 23d of December, 1870, and the partnership did not commence until the first of the following January, nor was the capital actually paid in until the second of January. Both the certificate and affidavit, therefore, were untrue at the time when they were filed, but even with reference to that state of facts, Beckham, J., in the Laimbeer Case (supra), said :

“ I think it was a very stern and technical application of the statute, because, confessedly, before one particle of business was transacted by the firm, and on the earliest possible day after the commencement of the term of partnership at which it could be done, the chech was paid and the cash contributed by the special partner to the general fund. It does not seem, to me as if the principle of that case should be extended.”

The Laimbeer Case seems to be a distinct authority against a technical construction of the statute, especially in non-essentials, and in favor of the sufficiency of a substantial compliance with its terms.

I see no distinction in principle between the present case and Ropes v. Colgate (17 Abb. N. C., 136). In that case Justice Brown said that, “ What is required of parties desirous of availing themselves of the - privileges conferred by the statute in question, is a substantial compliance with its terms. Of what importance is it whether the capital contributed by the special partner is paid in a few minutes before or a few minutes after the certificate is signed, so long as it is paid in good faith before the partnership comes into existence ? In my judgment, if, at the moment the partnership is formed by the act of filing the certificate, all its statements are true, there is both a substantial and a literal compliance with the statute, and the special partner is not liable to the creditors of the firm.”

The statute in this respect makes no distinction between the certificate and the affidavit. If either is false, the specified consequences follow. In one case there is a false statement, in the other a false oath. If either tends to thwart the statute, mislead the public or induce any one to rely upon a fact which does not exist at the moment of filing of the papers, the liability of general partner follows. It is not until that moment that the partnership becomes complete, and it is not until that moment that the affidavit becomes material. It is not a question of the criminal law, nor yet of moral obliquity. It is simply a question of a statement placed on file for the inspection and advice of persons about to deal with the firm. What difference can it possibly make to such persons whether the truthful facts placed before them on the files were sworn to on the day of filing or the day before; on the day when the check was cashed or the day before? Where, then, the special capital has been paid in, in cash, prior to the filing of the certificate and affidavit, and these documents so state, everything essential or substantial has been done. To hold a special partner liable under these circumstances is simply to fine him the debts of the firm, not because of his own perjury, but because of an anticipatory statement made by another person, technically inaccurate at the time it was verified, but true when used pursuant to the requirements of the law, and which could not possibly have affected any person who ever had dealings with the firm.

I think the exceptions should be sustained and a new trial ordered.

Exceptions overruled as to defendants Eiseman, and judgment ordered for plaintiffs upon the verdict.


author: Brady, J.: Yan Bbunt, P. J.:

text:
    AUGUSTA G. GENET, Appellant, v. THE PRESIDENT, ETC., OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondents.

      Lease and contract for sale of coal to be mined—right of lessee to make use of any other product than the kind to be paid for under the contract.

    In an action based upon an agreement which had been entered into between the plaintiff and the defendant, under which, for each ton of clean and merchantable coal, exclusive of culm or mine waste, to be passed through a mesh of one-half square inch, taken from certain coal lands in the State of Pennsylvania, the defendant was required to pay twelve and one-half cents, the complaint alleged that the defendant in preparing the coal for market used a mesh five-eighths of an inch square instead of half an inch square, in consequence of which ten per cent of all the coal mined, or 30,000 tons, had passed through the five-eighths mesh, which would have gone over the half-inch mesh.
    It was also alleged that the defendant had prepared what was known as pea coal, by screening the coal which had passed through the five-eighths mesh over a mesh of seven-sixteenths of an inch.
    And, also, that the residue of the coal remaining after the preparation of the pea coal was again screened by the defendant and separated into two grades, buckwheat and birdseye coal, and that 100,000 tons of such coal had been taken and carried away by the defendant.
    And, further, that although the defendant had mined and taken away from the land at least 1,300,000 tons of coal, it had paid the plaintiff for less than one-half that amount, and asked for a general accounting for the value of all coal mined.
    At the time the contract was made all the sizes of coal, called pea, buckwheat and birdseye, were considered worthless, and were included in the waste products of the mine under the name of culm.

      Seld, that there was no intention on the part of the plaintiff to convey to the defendant any beneficial result of the mining operations, as a gratuity.
    That it was the duty of the defendant to pay for all coal mined and taken out, in pursuance of the agreement, exclusive of the coal which possessed no marketable quality.
    That while the defendant might not have had a right, under the terms of the agreement, to utilize the culm, yet, having done so, the product became a part of the subject-matter of the contract and gave the plaintiff the right to insist upon compensation therefor.
    That, in any event, the defendant had utilized the culm, in which the agreement gave him no rights, which was, in fact, owned by the plaintiff, who thereby acquired a cause of action against the defendant. (Van Brunt, P. X, dissenting.)
    Appeal by tbe plaintiff from a judgment entered in the office of the clerk of the county of New York on the 19th day of October, 1889, after a trial before a referee appointed to hear and determine the issues in the action. The judgment was in favor of the plaintiff and against the defendant for $4,947.21, and directed that the third cause of action alleged in the complaint be dismissed upon the merits.
    The complaint alleged that the plaintiff was the owner in fee, as her separate estate, of about one hundred acres of coal land in Pennsylvania; that the defendant was a corporation duly incorporated by an act of the legislature of the State of New York, engaged in the business of mining coal and transporting the same to be sold in New York and at other places; that an agreement had been entered into by which the defendant leased “ all the coal contained in, on or under that certain piece or parcel of land,” etc., * * * “ to include all the coal that can be economically mined or taken out from the above described premises, together with the right to enter upon and into said lands and to dig and mine and remove said coal through or out of any shafts, slopes or tunnels that they may dig, erect or construct upon the premises, * * * and the said party of the second part agrees to pay for the coal mined and taken out in pursuance of this agreement at the rate of twelve and one-half cents (12-|) for every ton of .(2,240) twenty-two hundred and forty pounds of clear merchantable coal, exclusive of culm or mine waste, that will pass through a mesh of one-half inch square.”

      G. G. Genet, for the appellant.

      F. F. Smith, for the respondent.
   Brady, J.:

The judgment appealed from is two-fold: First, a money judgment in favor of the plaintiff for $4,947.21; and, second, a judgment dismissing one cause of action upon the merits. If, upon a consideration of the whole case, therefore, the judgment dismissing the cause of action suggested is erroneous, there must be a new trial without reference to the exceptions relating to other parts of the case.

The basis of the action is an agreement between the parties by which certain coal lands in the State of Pennsylvania were leased to the defendant, one of the terms of which required the defendant to pay twelve and a half cents for each ton of clean and merchantable coal, exclusive of culm or mine waste, to be passed through a mesh of one-half square inch.

The first cause of action, after referring to the agreement mentioned, the working of the mine and the rendering of accounts, alleges that the defendant, in preparing the coal for market, used a mesh five-eighths of an inch square instead of half an inch square as required by the agreement, and that, as a result, ten per cent of all the .coal mined, or 30,000 tons, had passed through a five-eighths mesh, which would have gone over a half-inch mesh, and this amount was omitted from the account.

The second cause of action alleges the preparation by the defendant of what is known as pea coal by screening what goes through a five-eighths mesh over a mesh of seven-sixteenths of an inch, and seeks to recover the stipulated royalty on the whole of the pea coal taken from the mine in question, and claimed to amount to 150,000 tons.

The third cause of action alleges that the coal left, after the preparation of the pea coal, is again screened by defendant and separated into two other grades of coal called buckwheat and birds-eye, and that such coal, to the amount of 100,000 tons, had been taken and carried away by the defendant, the value of which was $35,000, which sum was claimed.

The fourth cause of action was a charge that the defendant had mined and taken from the land in question at least 1,200,000 tons of coal, but had paid plaintiff for less than half that amount, and that the accounts rendered by the defendant were false. The prayer for judgment was for a general accounting for the value of all coal mined; for the value of the small coal that would pass through a half-inch mesh, that is, all pea coal and all buckwheat and birdseye coal; for damages to the amount of $10,000, caused by recrushing the coal and reducing the same to dust or culm, and for general relief.

In reference to these different sorts of coal the referee found that the various sizes or grades in which anthracite coal is placed upon the market are called lump, steamboat, grate, egg, stove, chestnut, pea, buckwheat and birdseye, and these sizes, with the exception of pea, buckwheat and birdseye, were substantially the same as those in which anthracite coal had been placed upon the market for more than forty years, and that the sizes of coal, now called pea, buckwheat and birdseye were formerly considered worthless, and were included in the other waste products of the mine under the name of culm; that the size now called pea was first separated from the culm and put on the market about 1857, but did not become one of the sizes commonly dealt in until about 1865, or later, while buckwheat and birdseye have been so separated and sold only since about 1880. As will have been observed, the third cause of action .relates to the size just mentioned, and which was dismissed upon the trial.

The question which presents itself vn limine is whether the dismissal of that cause of action was erroneous or not. The agreement was made on the 28th of March, 1864, and contains the following: And the said party of the second part agree to pay for the coal mined and taken out, in pursuance of this agreement, at the rate of twelve and a half cents (12J) for every ton of (2,240) twenty-two hundred and forty pounds of clean merchantable coal, exclusive of culm or mine waste that will pass through a mesh of one-half inch square.”

At that time, as found by the referee, the sizes now called pea, buckwheat and birdseye were considered worthless and were included in the other waste products of the mine under the name of culm. It is quite apparent that the language of the agreement, to which particular attention has been called, exclusive of culm or mine waste, was adopted with reference to the then supposed worthlessness of that product of the mine. And it is equally evident, from an interpretation of the whole instrument, that there was no intention on the part of the plaintiff to convey to the defendant any beneficial result of mining operations as a gratuity; nor is there any ground for the defendant to claim the right thereunder to appropriate the same to its own advantage without.due compensation. The manifest design of the agreement was to authorize the defendant to conduct such mining operations as would develop a marketable article for which a marketable compensation was to be paid. It was thereby made the duty of the defendant to pay for all coal mined and taken out in pursuance of the agreement, exclusive of culm or mine waste; so exclusive because it was supposed to possess no marketable quality, and, indeed, had none, as already suggested, until 1865, and subsequent to the making of the agreement between the parties.

It makes no difference whether the agreement makes the defendant the absolute owner of the coal, as if by deed in fee simple, or a lessee with rights and privileges in reference to the mineral found upon or under the surface, inasmuch as the mining of the coal involved the payment for its appropriation of a royalty agreed upon by the parties. It would be absurd to hold that, under such an agreement, no matter how it may be designated in legal parlance, the coal was transferred unqualifiedly, and it is not at all likely that any court of justice will so adjudicate. Whenever coal is taken from the land embraced within the agreement, it must be paid for whether it is the result of a new process with regard to culm or not.

It is true that the defendant, under a strict construction of the agreement, would be under no obligation to utilize the culm, but,, having done so, the product became a part of the subject-matter of the contract and gave the plaintiff the right to insist upon such compensation as might be awarded, if the royalty provided for by the agreement had no application. But even if this be not so, the utilization by the defendant of the culm in which he had no property, and as to which the agreement gave it no rights, and which was, in fact, owned by the plaintiff, created an independent cause of action which could be enforced herein, but which was disregarded by the referee, and it is thought erroneously.

The record in this case has been the subject of many examinations with its numerous exceptions and complications, but the recurrent thought has been that the exclusion of the third cause of action was improper, and deliberate consideration of that proposition has led to the conclusion herein stated, a conclusion which renders it entirely unnecessary to consider any of the other exceptions presented on behalf of the plaintiff.

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

Daniels, J., concurred.

Yan Bbunt, P. J.:

I dissent from the conclusions of Mr. Justice Beady and concurred in by Mr. Justice Daniels. The coal lands were leased to the defendants for mining purposes. The rents were fixed upon the basis of a payment of twelve and a half cents for every ton of merchantable coal which would pass through a mesh one-half inch square. Tbe evidence showed that this necessarily excluded buckwheat and birdseye coal. It is evident that all the coal mined by the defendants belonged to them, and if they found, after the execution of the lease, that they could make use of what they previously had been compelled to throw away, I see no basis arising from that fact for a change in the standard by which the rent is to be measured. The parties fixed the method of determining the rent and the court cannot now alter the contract.

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


text:
    In the Matter of the Application of the SOUTHERN BOULEVARD RAILROAD COMPANY to Acquire the Right to Construct and Operate its Road upon that Part of the Southern Boulevard, in the City of New York, which Formerly Belonged to PAUL SPOFFORD, Deceased.

      Conditions under which land is taken for a highway— cannot be done away with by the legislature to the prejudice of adjoining owners, without compensating them.

    By chapter 290 of 1867 the legislature authorized the .towns of Morrisania and West Farms to widen, make and extend a highway in said towns,to be called. the Southern Boulevard; and further provided that, “except for the purpose of crossing the same, no railway or tram-way. shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of this State for that purpose first had and obtained; ” and further provided, that in case such special act should be passed the right should exist in the several owners of land which should be taken for the road, to claim and recover from the person or corporation obtaining authority to construct such railway the full value of all the land taken, to the same extent as if no such road had ever been laid out on said land. Subsequently, by chapter 723 of 1887, the legislature authorized a railroad to be constructed upon this boulevard.
    In procedings taken by said railroad company to acquire the right to lay and operate its road upon the said boulevard, commissioners were appointed, who awarded only nominal damages to the owners.

      Held, that the legislature, having authorized the taking of the land for public use, upon certain conditions, could not abolish those conditions and treat the property as tliougli no such conditions had been attached to its condemnation when first taken.'
    That such conditions constituted a contract between the owners and the people, which the legislature had no right to abrogate.
    Appeal by Paul N. Spofford and Joseph L. Spofford, individually and as surviving executors and trustees under the last will and testament of .Paul Spofford, deceased, Edward Clarence Spofford and others, from the appraisal and report of the commissioners of appraisal, made in the above-entitled matter and filed with the clerk of the county of New York on the 14th day of May, 1890; and also from an order of the Supreme Court, made at Special Term confirming the said report, which order was entered in said clerk’s office on the 15th day of May, 1890.

      W. P. Williams, for Paul N. Spofford and another, appellants.

      John N. Lewis, for the petitioner, respondent.
   Yan Brunt, P. J.:

In 186J the legislature’passed an act (chap. 290), to authorize the towns of Morrisania and West Farms to widen, make, extend and improve a highway in said towns to be called the Southern boulevard, and by the act commissioners were appointed with power to perform the several acts and duties therein prescribed. Amongst other things it was provided in said act as follows:

Section 24. Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and except for the purpose of crossing the same no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of this State for that purpose first had and obtained; and in case the legislature of this State shall, at any future time, grant to any person or corporation the right to construct any rail or tramway upon said road or any part thereof, nothing in this act contained shall be construed to affect or cut off the rights of the several owners of lands, which shall be taken for laying out the road hereby authorized, to claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tramway.”

The proposed boulevard was laid out pursuant to the authority of that act, and commissioners of estimate and assessment were appointed for the assessment of damage and benefit, whose report was duly confirmed and the said boulevard duly opened. In the year 1887 the legislature, by chapter 723, amended the act of 1867 by making section 24 of that act read as follows:

“ Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard and no railway or tramway shall be laid or constructed thereon except by a railroad company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter two hundred and fifty-two of the Laws of eighteen hundred and eighty-four, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities.”

The Southern Boulevard Railroad Company, organized under the said act of 1884, began those proceedings to acquire the right to lay and operate its road upon the said boulevard. Commissioners were appointed, who made simply a nominal award; apparently having based their award upon the provisions of section 24, as amended in 1887, and not as originally enacted.

From this award the appellants, who were owners of property taken for the opening of the boulevard, appeal; and the question presented seems to be, whether the legislature, after having author ized the taking for public use of property upon certain conditions, can abolish those conditions and treat the property as though, in the first proceeding, no conditions whatever had been attached to its condemnation.

We think that this cannot be done. The provisions for the protection of the owners of property taken or assessed for the opening of the boulevard constituted a contract between such owners and the people of the State of New York which the legislature had no power by its subsequent action to impair.

Undoubtedly the awards made as compensation for the property taken were affected by the provisions contained in the act of 1867, whereby, in ease (as had frequently been done) the street was to be prostituted to the uses of a private corporation, the owners should receive full indemnification for the taking of their property as though the proceedings for opening it as a highway had never been taken.

This was the offer which the legislature made to the owners of the property. This was the offer which they accepted, and the legislature had no power to recede from this bargain after it had been consummated by the opening of the street in accordance with the terms of the act in question.

It is urged that this construction affirms the proposition that one legislature has the power to bind a subsequent legislature by a provision which would prohibit a new inquiry into the subject-matter and new legislation, a proposition which needs but to be stated tobe condemned, and which has been specially repudiated by the court in this department in reference to this very statute of 1867. (Harlem Bridge, M. and F. R. R. Co. v. Southern Boulevard, etc., 41 Hun, 553.)

An examination of the case cited shows that it has no applicability whatever to the question involved upon this appeal. All that was intimated in that case, a point which it was not necessary to decide, was that the legislature could repeal the act of 1867. There is no question but that it could so repeal that act, and if it did so, the lands occupied by the Southern boulevard would at once- revert to their owners; but the legislature has no power to repeal that part of the act whereby, as an inducement to the owners of land to permit the improvement, it covenanted for their protection. The legislature authorized the people to take the land under certain conditions and the people cannot hold the land in disregard of those conditions. Neither can this private corporation come in and claim this property in condemnation proceedings without due regard to the conditions under which it was in the first instance devoted to public use.

"We think that by the terms of the act of 1867 a contract was entered into between the people of the State and the owners of this property; that after this improvement was made and paid for by the adjacent, ow;ners. no railroad company should be pérmitted to seize,upon this,avenue without compensating the owners for'tlieiir property so'taken.

We think, therefore, under the circumstances, that the owners of this property were-entitled to more than a nominal award and that they were entitled to receive the actual value of the land as though no street had ever been opened.

The order should be reversed and the proceedings sent back to the commissioners for further examination, with costs to the appellants to abide the final event.

Brady and Daniels, JJ., concurred.

Order reversed and proceedings sent back to the commissioners for further examination, with costs to the appellants to abide the final'event.


text:
    GEORGE JOHNSON, Respondent, v. CHARLES R. TYNG, Appellant.

      An agreement, terminable by ten days’ notice, continues in force for ten days after such notice is given — dfault therein—waiver.

    Under an agreement, entered into by a manufacturer, owning a steel rolling-mill, with a vendor of steel, the latter agreed to furnish crude steel, and the former to manufacture it, at a fixed rate of compensation.' The agreement was to continue during the mutual pleasure of the parties, and to terminate only after two ; months’ notice, This agreement was afterwards terminated upon notice, at which < time there was $381.56 due to the plaintiff.
    Thereafter the parties entered into an agreement which was to continue for five years, during which the vendor of steel was to have the exclusive sale of the entire product, with a credit of sixty days from the date of each monthly account within which to pay the amount thereof; and in case of his failure to ■ make payment as provided for, it was stated therein that the agreement should, • upon ten days’ personal notice, be null and void.
    This last-mentioned agreement was performed on both sides for about a year, at the end of which time it was claimed by the manufacturer that the vendor had made default in one of his payments, and a notice of ten days terminating the agreement was given by the manufacturer, who immediately stopped work.
    In an action brought by the manufacturer to recover a balance due under each of these agreements, it was claimed by the defendant that the plaintiff could not recover the money sued for, because he had failed to perform the contract under which these moneys were earned, and that the breach of the contract had caused damage to the defendant.

      ■Meld, that, in view of the negotiations between the parties, which resulted in the ■ making of the second agreement, any defaults which might have taken place under the first agreement were waived, and that a right of action existed against the defendant for the amount due under the first agreement at the time the second agreement was entered into.
    That, under the second agreement, the manufacturer having at once stopped work, instead of waiting until the ten days fixed by the contract had expired, had broken the terms of this agreement.
    That as it was necessary, in order that the plaintiff should recover the amount which he claimed under this contract, that he should show that he had performed it, no right of action existed in his favor and he could not recover for the work done prior to its breach.
    Appeal by the defendant Challes R. Tyng from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 19th day of March, 1890, in favor of the plaintiff, after a trial at the New York Circuit before the court without a jury.

      T. M. Tyng, for the appellant.

      J. G. O' Gonnor, Jr., for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover certain moneys claimed to be d-ue by defendant to plaintiff. The plaintiff was a manufacturer, working a steel rolling-mill, and the defendant was a vendor of steel.

In 1879 the defendant made an agreement with the father of the plaintiff, by which he agreed to furnish crude steel to the father of the plaintiff, the latter to manufacture it for him at a fixed rate of compensation. The agreement was to continue during the mutual pleasure of the parties and to terminate only after two months’ notice of such discontinuance and the completion of all contracts then entered into. In December, 1881, the father of the plaintiff died, and subsequent thereto the defendant entered into an agreement with the plaintiff, who had succeeded to his father’s interest in the mill, which had, in the meantime, been removed to Pennsylvania. This agreement was a continuation of the agreement theretofore made between the defendant and plaintiff’s father, and provided that the defendant should supply raw material, and the plaintiff was to work it up and defendant was to pay plaintiff at the prices fixed in the agreement, and that the agreement was' to terminate on two months’ notice. Under this agreement the parties continued business over two and a half years, until the 16th of July, 1884, when notice was given terminating the same two months thereafter. At this time there was $331.66 due under this second agreement, and the plaintiff stopped working thereunder.

On the 31st of July, 1884, the parties entered into a third agreement, which provided for its continuance for five years, during which the defendant was to have the exclusive sale of the entire products of the plaintiff’s mill, with, a credit of sixty days from the date of each monthly account, within which to pay the amount thereof.

It further provided, that in case the defendant should fail to make payment as provided in the agreement, that the agreement should, upon ten days’ personal notice, be null and void. This third agreement was performed on both sides for -a year after it was made until the 25th of July, 1885; at that time it being claimed by the plaintiff that the defendant had made default in one of his payments, he gave defendant the notice of ten days, terminating the agreement, and immediately stopped work. There was a balance claimed to be due upon this third agreement at this time, and for the balance due under the second agreement, and under this third agreement this action was brought, and recovery was had for the whole amount, and from the judgment thereupon entered this appeal is taken.

The claim of the defendant is that the plaintiff cannot recover the moneys sued for, because he failed to perform the contract under which these moneys were earned, and that the breach of the contract caused the defendant certain damages as alleged in the counter-claim.

It seems to us, in view of the negotiations between these parties which resulted in the making of the third agreement, that whatever defaults may have taken place under the second agreement were waived, and that the plaintiff would have a right of action against the defendant for the amount due under that second agreement at the time at which the third agreement was entered into.

The case, in respect to the claim, made under the third agreement, however, is entirely different. By the terms of the third agreement the plaintiff was to have the right to terminate the same in case the defendant should fail to make payment as therein provided upon ten days’ personal notice. And the plaintiff expressly states, in the course of his cross-examination, that the object of requiring the ten days’ notice was to enable the defendant to hold on to the agreement for these ten days.

It appears from'the uncontradicted evidence in the case that, instead of waiting till the end of the ten.days to stop work, at which time the agreement became null and void by its terms, the plaintiff stopped work instantly and refused to go on during the period of these ten days, and thus broke the agreement upon his part. The terms of the agreement did not provide that the agreement should become null and void in case the defendant failed to make payment in accordance with its terms; but it gave the plaintiff the option, in case of Such failure, to terminate the agreement by giving ten days’ notice, such termination evidently to take place after the expiration of the ten days for which the notice had been given. Therefore, the position of the plaintiff is a breach upon his part of the terms of the agreement under which he claims judgment against the defendant. In order that the plaintiff should recover these various sums of money which he claims, it was necessary for him to show that he had performed the contract on his part, and until he established that proposition no right of action in. his favor existed. The plaintiff not only did not establish this proposition, but it was proven that lie broke the agreement himself by failure to comply with its terms. This being the condition of the proof, we do not see how the plaintiff can recover .for the work done prior to the breach.

It is urged that by the provisions of the agreement the plaintiff was to have a lien upon the termination of the agreement upon all the material which was sent to him by the defendant in case of a ‘breach. But that lien did not exist until the expiration of the ten days after the giving of the notice, and after the agreement had become null and void. The provision is as follows: “ It is further agreed that in case the party of the second part shall fail to make payments as above provided, this agreement shall upon ten (10) days personal notice, be null and void, and any sum or sums which may at such time be due the party of the first part, shall be a lien upon any stock or material belonging to the party of the second part, which may then be in the mill.” The words “ at such time ” 'evidently refer to the time when the agreement shall become null and void, namely, ten days after' notice. The material belonging to the party of the second part which may thm be in the mill.” The phrase “ then ” applies clearly to the time when the agreement becomes null and void, as aforesaid on the tenth day after the giving of the notice, otherwise no effect can be given to the requirement of ten days’ notice.

There is nothing in the agreement going to show that because of the failure of the defendant to pay pursuant to its terms, the plaintiff had a right then to stop. The parties had expressly provided otherwise ; .they had expressly provided that for ten days after defendant had been in default, he could claim that the plaintiff should perform his part of the contract although the defendant had failed to perform his. The parties having contracted in this manner, the plaintiff cannot be heard now to claim that he should not be bound by the provisions of .his contract. ’’

We think, therefore, that the judgment was erroneous and that the same should be reversed and a new trial ordered, with costs to appellant to abide event.

Brady and Daniels,' JJ., concurred.

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


author: Beady, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of AUGUSTUS ZEREGA, Deceased.

      ■Surrogate —cannot, even with the consent of all parties in interest, admit to probate the will of a citizen of the State not a resident of his county,

    A surrogate has no jurisdiction to admit to probate in his court the will of a citizen of the State who is not a resident of his county.
    Although all the parties interested in an estate give their consent to the probate of the will of the deceased by the surrogate of a county in which the deceased did not reside, and although the executors under the will accept letters testamentary based upon it, this does not give jurisdiction to the court.
    Appeal by the petitioners, Francis A. Zerega and others, from an order or decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said county on May 9, 1889, denying the petitioners’ application that the decree entered in said office admitting the will of Augustus Zerega to probate be reopened, vacated and set aside, and that a new trial or new hearing be granted.
    The question presented by the petitioners related to the residence of the deceased.

      A. Gdllwp, for the petitioners, appellants.

      De Witt, Lockmom & De Witt, Samuel Huntington and Horace Barnard, for the proponents and respondents.
   Beady, J.:

This application, so far as it charges Mr. Barnard with misrepresentations, is not sustained. The facts and circumstances disclosed and duly considered justify this conclusion. It is not deemed at all necessary to state them in detail.

The proposition that Mr. Zerega, at the time of his death, was a resident of the city of New York, has not been sustained, however, but, on the contrary, has been successfully assailed. He had a temporary abode here, it is true, but it was in a house occupied by his daughter, for whose use it seems to have been purchased at the time of her marriage. He paid for his accommodation therein while he remained in it, which was during the interval between his departure from his residence in "Westchester in the fall of the year and the following spring, a mode of life adopted and kept up for many years prior to his death. The testimony of disinterested persons, of his admissions and declarations in regard to his residence, establishes the conclusion that he considered himself to be a resident of "Westchester, and so described himself in his will; and this necessarily went hand in hand with his intention to be such a resident and made him such by act and expressed intent. In addition to this he voted and paid taxes there; and when he expressed his wish to sell his residence there, it was coupled with a statement of an object in view, namely, that he might travel, but not to return to a city residence here, and, indeed, not making any reference to it. This indicated 'a wish to change his mode of life and to be relieved from a local habitation.

When the residence is thus adopted and proclaimed, especially in connection with an existing domicile, it is not necessary to seek the aid of adjudications bearing upon the much distorted questions of residence and domicile and the difference between them for certain purposes, taxation and the like. A man may reside where he chooses, and although by a quasi fiction of the law he may be located in different places for public purposes, such as taxation and the like, yet his home he determines for himself; and where that is in this State, his residence, as described for the appropriation of his estate by the legal processes provided by law, is where that is situate. The Code gives no jurisdiction to the surrogate of this county in such a case.

It is true that the parties interested in the estate gave consent to the probate, and that the executors accepted letters testamentary based upon it, but this did not confer jurisdiction, and is, therefore, of no avail. The standing in court of these persons is such that, if the probate could be upheld, it should not be interfered with on this application, whether the motive which induced the application was in good faith or otherwise.

The surrogate proceeded upon papers regular upon their face and containing all the requisite jurisdictional facts under the provisions of the Code (§§ 2474-2476), and the estate could be administered in all respects as well under his authority as that of any other. But the question of jurisdiction is always a factor of great and continuing importance in courts of justice, and its absence may be successfully resorted to as a destructive negation.

The order appealed from must be reversed, but without costs.

Van Brunt, P. J., and Daniels, <7., concurred.

Order reversed, without costs.


author: Brady, J.:

text:
    THOMAS WILLIAMS, as Administrator, etc., Respondent, v. REBECCA GARDINER, Appellant

      Negligence of a child in whose cha/rge a younger sister is at the time of an accident to the latter — how fa/r it bars the recovery of damages.

    In an action brought to recover damages arising from the negligent killing of an ; infant four years .and nine months of age, it appeared that the defendant had a life interest and was in possession of certain premises in Harlem, the only means of access to the privy connected with which was by going' out through a door in the second floor to a shed, and from the shed to the yard, by a stairway; that ' the mother of the deceased-had placed her in charge of her sister, who was nine . years of age, and who went with the deceased down into the back-yard and then .. .came up the steps. The deceased was behind her sister., who went into the house when the former was two steps from the top of the stairway. ■ The * sister returned at once from the house and found that the deceased had fallen down the steps and was killed.
    The defendant’^ counsel.asked thq court to charge that .if the mother selected an , • older child to accompany the deceased upon the occasion in question, and the one so selected was negligent in caring for the deceased,' the plaintiff could not recover, which the court declined to do.

      Held, that the court erred in refusing to so charge.
    That the deceased- was evidently placed in charge of her sister, and the care taken , of her by the -latter was a proper subject of inquiry, and the question in regard to . the negligence of the sister should have been submitted to the jury as requested.
    ' Appeal by tbe defendant Rebecca Gardiner from a judgment of tbe Supreme Court, entered in tbe office of the clerk of tbe county of New York on tbe lltb day of February, 1890; and also from an order denying defendant’s motion for a new trial made on tbe minutes of tbe court.
    The action was tried before tbe court' and a jury at tbe New York Circuit, at which a verdict was rendered in favor of tbe plaintiff for the sum of $2,000.

      Artemus H. Holmes, for the appellant.

      John D. Townsend, for tbe respondent.
   Brady, J.:

This action was brought under the statute to recover damages for negligently causing the death of Lillie Williams, tbe plaintiff’s intestate and daughter, aged four years and nine months.

The defendant had a life interest in and was in possession of premises in Harlem. The building was three stories- in height, the lower floor being rented for business purposes. The only public means of access to the privy was by going but through a door in the second floor to a shed which was sixteen feet or more from the yard, and from the shed to the yard by a stairway.

On the 26th of January, 1889, the plaintiff’s intestate, while returning from the privy in company with her sister, who was nine years old, fell, it would seem, from the stairs mentioned, into the cellar and fractured her skull, death ensuing within a day or two> thereafter.

Upon the trial it appeared, among other things, from the testimony of the mother, that she had forbidden the children going into the yard, and for the purpose of securing obedience caused them to go through her room and tried to keep the door locked to prevent-their going out, her husband being an invalid and apparently incapable of looking after them. She said, also, I placed the little one in charge of the other at all times; they were always together j she always looked after the little one.” “ The other,” so-called, was the daughter Lottie Sinclair, a bright and intelligent child, apparently, who said: ‘‘ Before the accident I and my sister went down into the back-yard and then came up the steps; she was behind me, and I went into the house.” And, further: “ When I saw her two steps from the top (that is when they were returning) I went into the hall and then out again ; I did not then find her two steps from the top; I saw her down in the cellar; when I went in I came right back. She came up the stairs, she was behind me, and when I got to the top I saw her two steps from the top; ” showing, it would seem, that the child was in her charge but was abandoned for the moment when within two steps of the top of the stairway, when she fell and was killed. Assuming (which may be done for the purposes of the appeal) that all the legal propositions which the facts and circumstances invoked were properly stated to the jury except the one to which attention is about to be called, the omission to grant that request, embracing, as it did, the proposition suggested, seems to. be fatal to the maintenance of the judgment.

The child was not in the immediate cafe of- either of her parents at the time the accident occurred, but was in the custody ;of her sister, to whose care she was generally committed by the mother, as we have already seen.

After the delivery of the charge, which was comprehensive, and in which the doctrine of negligence to be applied to the intestate, as well as to the parents, under the circumstances disclosed, was dwelt upon elaborately, the defendant’s counsel asked the judge to charge that, if the mother selected an elder child to accompany the deceased upon the occasion in question, and the one so selected was negligent in caring for the deceased, the plaintiff could not recover. It will be remembered that the mother testified she placed the intestate in charge of the other one (that is, Lotta Sinclair) at all times; they were always together; she always looked out for the little one. The object of this request to charge was, no doubt, to invoke for the defendant’s benefit the rule, seemingly well established, that if in a case of this kind the parent or the guardian, or person in whose custody the child is placed, is guilty of negligence, there can be no recovery. The person selected as guardian or custodian becomes the alter ego of the parent, and upon the one so chosen devolves the proper care and management of the child.

A kindred question was involved in the case of Ihl v. The Forty-second Street Railroad Company (47 N. Y., 317), in which a child of three years and two months crossed the avenue, upon which the defendant operated its railroad, in charge of a sister, nine and a half years of age. The court there said: The defendant relied wholly upon the proposition that the sending of the ebild across the avenue and track unattended, except by another child so young as the attendant in this case was proved to be, was negligence per se; ” and, further, that the refusal so to charge was not error, but that it was properly left to the jury to say whether it was negligence to permit the little daughter between nine and ten years of age to take the little boy to the drug store in the way she started to do it; that the competency of the little child to act as attendant of the deceased was matter of judgment, and there was no positive rule by which it could be determined.

The doctrine of that case, as declared by the case of Kunz v. City of Troy (104 N. Y., 351), is, that there must be concurrent negligence on the part of the parents or guardians, the court saying: “In the absence of negligence on the part of the parents or guardian the doctrine of contributory negligence has no application.” The law imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care and the infant is thereby brought into danger, and the result is injury from the negligent act of another, their negligence is deemed the negligence of the infant.

Under these circumstances the refusal to charge as requested was erroneous. The intestate was evidently placed in charge of her sister, and the care taken by the latter of the former was a subject of inquiry and should have been submitted to the jury as requested.

For these reasons the judgment must be reversed and a new trial ordered.

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

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


text:
    EDWARD F. BROWN, as Assignee for the Benefit of the Creditors of JACOB F. WYCKOFF, Respondent, v. WALTER P. BUTLER, as Administrator, with the Will Annexed, of the Estate of W. I. BUTLER, Deceased, Appellant.

      Bight to withdraw a counter-claim, upon a trial before a referee.

    Upon the trial of an action before a referee the defendant may withdraw a counterclaim set up in his answer, in the same manner that the plaintiff may submit to a nonsuit on a trial at circuit, up to the time that the case is submitted to the jury.
    When a counter-claim is thus withdrawn, it is improper for the referee to make any adjudication upon the merits thereof.
    Appeal by the defendant Walter P. Butler, as administrator, etc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 4th day of January, 1889, in favor of the plaintiff, upon the report of a referee.

      James R. Marvin, for the appellant.

      Edward F. Frown, for the respondent.
   Bartlett, J.:

This action was brought upon three promissory notes, aggregating $2,200, made by W. I. Butler, and payable on demand to the order of J. F. Wyckoff. The defense chiefly relied upon on the trial was that the payee agreed to accept the professional services of the maker as an attorney and counselor-at-law in payment of the notes, and that the notes were fully paid by the rendition of such services. The referee found that the alleged agreement was made in regard to the mode of payment, but refused to find that the notes had been paid in the manner thus provided for.

The evidenee on that question was conflicting, and we are not prepared to say that the conclusion reached by the referee was not correct.

There would be no occasion to interfere with the judgment, therefore, if it was confined to an adjudication that the plaintiff was entitled to recover from the defendant the amount of the notes, with interest and costs. It goes much further, however, and determines adversely to the defendant a certain portion of the counter-claim interposed by his amended answer, which his counsel had withdrawn in the course of the trial. The right thus to withdraw a counterclaim is questioned by the learned1 counsel for the respondent; but we cannot see why it does not exist, just as a plaintiff may submit to a nonsuit up to the time when a case goes to the jury. So far as his counter-claim is concerned, the defendant occupies the position of a plaintiff.

The judgment ought to be modified by striking therefrom the provisions relating to those portions of the counter-claim which were withdrawn during the progress of the reference, and, as thus modified, it should be affirmed, without costs to either party upon this appeal.

Judgment modified so as to exclude any adjudication on the merits of the counter-claim which was withdrawn, and, as thus modified; affirmed, without costs. Order to be settled by Mr. Justice Bartlett.

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

Judgment modified so as to exclude any adjudication on the merits of the counter-claim which was withdrawn, and, as thus modified, affirmed, without costs.