author: Pollett, J.:

text:
    William S. Williams, Respondent, v. Robert Lindblom, Appellant, Impleaded with Others.

      Pleading —partnership accounting ■ — judgment.
    The practice, in an answer, of merely designating by a reference to folios the-allegations of the complaint undertaken to be denied, is to be condemned.
    If it cannot be determined from the answer what has been denied, none of the-allegations of the complaint will be deemed to have been controverted.
    In an action in equity for a partnership accounting, a money judgment cannot be-rendered without a previous determination of the state of the accounts between, the partners.
    On the trial of such an action, a specific request to state the accounts between the partners is not necessary to present on appeal the error committed in rendering a money judgment instead of stating the accounts, as required by the form of the action.
    Appeal by the defendant, Robert Lindblom, from a judgment of the Supreme Court entered in the office of the clerk of the city and county of New York on the 2d day of September, 1892, in favor of the plaintiff upon the report of a referee.
    June 21, 1883, Robert Lindblom and Nelson Yan Kirk, of Chicago, 111., and Nathan G. Miller and William S. Williams, of the. city of New York, entered into a written contract by which they formed a limited partnership for the transaction of a commission business at the city of Chicago, under the firm name of Robert. Lindblom & Co. It was mutually agreed that Lindblom and Yan Kirk should jointly contribute to the capital $150,000 in cash,, and Miller and Williams each $75,000 in cash. The partnership was to commence July 1, 1883, and continue for two years. The partners were to share in the profits in proportion to the amount of capital contributed by each, and were to bear the losses in the same proportion,' except that Williams was to be liable for losses only tq the extent of the sum contributed by him to the cajiital of the firm. The firm commenced business and continued until' April 3, 1884, When it was dissolved by mutual consent. These facts are conceded.
    January 17, 1890, the summons in this action was served on Lindblom and on Nathan G. Miller and John K. Kitchen in March ■of the same year. The action was for an accounting between the partners and for a judgment against the defendants for such sum as should be found due the plaintiff on the accounting. Miller did not appear in the action, but his receiver appeared and answered, ■submitting his rights to the court. Yan Kirk was not served and did not appear. Lindblom answered and prayed for a judgment for an accounting, and determining the rights of all the partners as between themselves. The action was tried before a referee, who rendered a personal judgment in favor of the plaintiff and against Robert Lindblom and Nathan G. Miller for $63,705.16 damages and ■costs, and that the plaintiff have execution therefor.

      Cephas Brainerd, for the appellant. ’

      JD. M. Porter, for the respondent.
   Pollett, J.:

The answer of Lindblom is so defective that had the decision turned upon the state of the issues presented by the pleadings, the defect might have proved fatal to the defendant. The answer “ denies the allegations contained in said complaint from the middle of the ninth folio down to the words anyone therefor,’ near the end of the twelfth folio of said, complaint, except,” etc. The folios referred to are evidently those of the original complaint, which are not identical with those of the complaint as printed in the record, and it is impossible to ascertain what is denied and what admitted. This vicious mode of pleading has been several times condemned in reported cases. (Caulkins v. Bolton, 98 N. Y. 511; Baylis v. Stimson, 110 id. 621; Crosley v. Cobb, 3 How. Pr. [N. S.] 37; Varnum v. Hart, 47 Hun, 18-23; Avery v. N. Y. C. & H. R. R. R. Co., 29 N. Y. St. Repr. 918.) Pleadings are to be construed strictly against the pleader, and if it cannot be determined what has been denied, none of the allegations of the complaint will be deemed to have been controverted.

An action at law cannot be maintained by one partner against another to recover a siui¿ of money arising out of the partnership transactions until a final accounting has heen had and the amount due ascertained. The case at bar is in equity for an accounting between several partners, but by the decision of the referee and the judgment entered thereon it was, in effect, turned into an action at law, and a judgment for a definite sum of money entered in favor of one partner against two others, without determining the state of the accounts between the partners.

The rule for taking a partnership account in an action like this is well stated by Mr. Bindley in his learned work on Partnerships:

44 1. Ascertain how the firm stands as regards nonpartners. 2. Ascertain what each partner is entitled to charge in account with his copartners, remembering, in the words of Lord Hardwicke, that 4 each is entitled to he allowed as against the other everything he has advanced or brought in as a partnership transaction, and to charge the other in the account with what that other has not brought in, or has taken out more than he ought.’ 3. Apportion between the partners all profits to be divided or losses to be made good, and ascertain what, if anything, each partner must pay to the others, in order that all cross-claims may be settled.” (2 Lind, on Partnership [3d Eng. ed.], 1031.)

This rule has been approved by'several cases in this State. (Neudecker v. Kohlberg, 3 Daly, 407; Rhiner v. Sweet, 2 Lans. 386; Butler v. Ballard, 11 J. & S. 191; Sweet v. Morrison, 103 N. Y. 235; McCall v. Moschowitz, 14 Daly, 16.) Such is the rule in New Hampshire (Raymond v. Came, 45 N. H. 201) and in Massachusetts (Paine v. Paine, 15 Gray, 299). The theory of this action was disregarded by the learned referee, whose decision and the judgment entered thereon violate the rule that judgments must be seewndum allegata et probata.

It was urged on the argument that the defendant did not, by an appropriate request, ask the referee to state the accounts between the partners. This was unnecessary, for counsel had the right to assume that a judgment appropriate to the form of the action would be rendered, and it was no more necessary to make a specific request than it would be, in an action for specific performance, to request that a judgment for money he not given, but that specific relief be awarded or denied.

The exceptions taken by the appellant to the conclusions of law-are sufficient to raise the questions here considered. In accountings between partners, it is not usual to award costs until the final judgment is entered, when they may be paid out of the fund, or charged against the delinquent partner, so the question of costs will be reserved until the final determination.

The judgment should be reversed and a new trial granted before a hew referee to be appointed by this court, with costs to appellant to abide the final award of costs.

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

Judgment reversed and new trial granted before a new referee to be appointed by this court, with costs to appellant to abide the final award of costs.


source: Caselaw Access Project

author: jMacomber, J.:

license: Public Domain

text:
    Elizabeth Ziegler, Respondent, v. Henry Ziegler, Appellant.

      Attachment — conversion of personal property — secreting property with intent to defraud creditor's.

    In an action brought to recover damages for the alleged wrongful conversion of personal property it appeared that the defendant, who had joined with the plaintiff in a sale, for cash, of real estate owned by them in common (under an agreement that the entire consideration should be divided between them equally and that the plaintiff should receive her half immediately upon the consummation of the sale), had received the whole consideration in money, and had failed and refused to pay the plaintiff her share on demand or to tell her where the money was, coupled with the boast that he had it in a safe place, after having persistently falsely denied that he had the money.
    Held, sufficient to support an action for the wrongful conversion of personal property, and to justify the issuance of an attachment therein on the ground that the defendant had secreted his property with the intent to defraud his creditors.
    Appeal by the defendant, Henry Ziegler, from an order made at the Monroe Special Term, and entered in the Monroe county clerk’s office November 1, 1892, denying his motion to vacate a warrant of attachment against his property.
    The attachment was granted on the ground that the defendant had disposed of or secreted property with intent to defraud his creditors, and the motion was made on the same papers upon which the attachment was granted.

      G. A. Keeler, for the appellant.

      Arthw JS. Sutherland, for the respohdent.
   jMacomber, J.:

This action is brought to recover the sum of $1,650 belonging to 'the plaintiff which had been wrongfully converted by the defendant to his own use. The warrant of attachment was issued under subdivision 2 of. section 635 of the Code of Civil Procedure, which permits such provisional remedy against the property of the defendant for the wrongful conversion of personal property.

It appears that the plaintiff and defendant were owners in common of certain lands described in the complaint, and that they were ■•equally interested therein; and that they had, on consultation, agreed to sell and convey the same to one Hei’man F. Roesch and Barbara Roeschj- his wife, for the sum of $3,300 payable in cash; and that .thereafter and on September 11, 1892, a deed of such premises was duly delivered to the grantees. Before this conveyance was made, it was agreed between the parties hereto, that the entire consideration for the sale should be equally divided between them, share and share ¡alike, and that immediately upon the consummation of such sale the plaintiff should receive her half thereof, namely, $1,650. The defendant actually received the whole consideration from Roesch ¡and wife in money. Instead of turning the share of the plaintiff over to her or in any manner accounting for the moneys in his hands, he persistently denied, when applied to from time to time, that any money had been paid to him by the grantees, and continued ¡such denials up to the 29th day of September, 1892, when, being -confronted with the allegation or proof of his perfidy, he admitted to the plaintiff and others, that he had so received the entire sum of ^3,300, but refused to pay over any part thereof to the plaintiff ; on ‘the contrary, he averred that he would not pay the plaintiff anything, and refused to allow her any participation in such moneys. On being asked where he kept the money, or where it was, he refused to say anything except “ I have got it in a safe place.” He then jeered at the plaintiff and boasted of having caught her in a trap. This affidavit of the plaintiff is corroborated by others, and ffor the purposes of this motion must be deemed to be in all respects true. No fact contained therein being denied, every intendment must be made in its behalf.

Ve think that the affidavit makes out a sufficient case under this provision of the Code. It was the duty of the defendant upon receiving the money immediately to turn over one-half thereof to the plaintiff. Having failed to do so and refusing to pay the same iipon demand, he was guilty of a wrongful conversion, and this action, based on that ground, was properly brought. Under the allegations of the complaint it was not incumbent upon the plaintiff to resort to a mere accounting, but she had the right to bring her action in this form and to resort to the provisional remedy provided by the Code.

But it is argued by the counsel for the defendant that a debtor, when asked where his money is by his creditor, is not bound to tell where he keeps it. This undoubtedly is true in a general sense, but the position is hardly tenable under the facts disclosed in this case. The persistent falsehood indulged in by the defendant for two weeks in denying that he had the money, coupled with the boast that he had got it in a safe place, were affirmative facts sufficient to show that he had secreted his property with the intent to defraud the plaintiff.

The order appealed from should be affirmed.

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

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


author: Macomber, J.:

text:
    Ella J. Van Koughnet, Respondent, v. Louis Dennie, Appellant.

      Former adjudication — a party who has procured a judgment cannot impeach it.

      A person who has, by his acts, procured the rendition of a judgment in a given case, although not a party to the record, cannot afterwards be heard to impeach that judgment in any respect for his own benefit.
    In an action brought by a married woman to recover for money loaned and for services, in which the defendant pleaded a former adjudication as to the same subj ect-matter, it appeared that the claims in suit had been included in the complaint in an action previously brought by the plaintiff’s husband against the same defendant, in the prosecution of which the plaintiff actively assisted and in which she was a witness for her husband; that that action resulted in an allowance of the claims then presented by the husband, but such allowance was overcome hy a counterclaim, so that an affirmative judgment was rendered for the defendant, which stood unreversed.

      Held, that the plaintiff was hound hy such judgment and could not he heard to allege that, in the action in which it was entered, the wrong party called for payment of the claims in suit.
    Appeal by tbe defendant, Louis Dennie, from a judgment of tbe County Court of Wayne county, entered in tbe office of the clerk of Wayne county March 28, 1890, affirming a judgment of a justice of tbe peace, on appeal to that court on questions of law only.

      G. M. Allen, for tbe appellant.

      J. W. Dunwell, for tbe respondent.
   Macomber, J.:

Tbe plaintiff in tbis action recovered a judgment before tbe justice of tbe peace in tbe sum of forty-five dollars and twenty-five cents damages, besides costs. Tbe action was brought to recover tbe sum of twenty-one dollars, alleged to have been loaned by tbe plaintiff to tbe defendant in tbe year 1887, and for twenty-five weeks’ services rendered to tbe defendant by tbe plaintiff. Tbe answer consisted of a general denial, and a former adjudication of tbe same subject-matter by another justice of tbe peace, wherein Sylvester Yan ICougbnet; tbe husband of tbis plaintiff, was tbe plaintiff against tbe present defendant. Tbe proceedings in that action were put in evidence on tbe trial in the case involved on tbis appeal; and it appears therefrom, that tbe same matters claimed by tbis plaintiff against tbe defendant were set forth in tbe complaint of her husband, and formed tbe basis of bis action on tbe former trial against this defendant. That case resulted in an allowance of tbe portion of tbe claim there presented by tbe husband; but tbe same was more than overcome by tbe counterclaim set forth and proved by tbe defendant in that action, tbe result of all which was an affirmative judgment in favor of tbe defendant therein against Sylvester Yan Koughnet. That judgment stands unreversed and undisturbed by any appeal therefrom.

The judgment in tbe former action, by the husband of tbe plaintiff against tbis defendant, was not a former adjudication, technically so called, because that action was not between tbe parties to tbis record or then’ privies. But it appears that tbe plaintiff in the present action was active and mainly instrumental in prosecuting the action brought by her husband, and in establishing the claims therein which were allowed to him by the justice of the peace. At the trial of the present action, Mrs. Van Koughnet testified, that she attended the trial of the former action; that she conducted her husband to the justice’s office and back again, because he was blind; that she heard plainly all that was said in the room; that she was sworn and gave evidence as a witness; that she knew her husband was going to bring that suit before it was brought; that she went to the justice’s office on the return day; took note of the proceedings and, there being a bill of items demanded by the defendant for certain portions of a claim made in the husband’s complaint, the same was actually prepared and made up by this plaintiff herself. She now testifies that the items for twenty-one dollars for moneys loaned were, she supposed, the same as those mentioned 'upon-the trial of her husband’s case, and that the work, for which,,this action was brought to recover compensation, was the same work which formed the basis of a portion of the complaint in the other action.

Under these facts, notwithstanding the formal assertion by her that she did not know and was not informed that her claims made in this action were litigated and determined in the other action, the plaintiff is, as it seems to us, conclusively estopped by her acts which procured the judgment in the former case. An inspection of the record in her husband’s action leads to the conclusion, that he could not have maintained his ease except for the testimony given by his wife. Having by her own affirmative acts and testimony procured a judgment of a court, she cannot now be permitted to allege and prove, as against the same party, any fact inconsistent with the integrity of that judgment. The defendant has paid, through the allowance of his counterclaim in the former action, and its reduction by the amount of the bill then sued upon in the name of the husband and established by the testimony of the wife, these very claims now set up by the wife; and it would be unconscionable for her to obtain payment again, in her own name, of the identical indebtedness ; and it would be a fraud upon the defendant to compel him to pay the second time. It does not suffice for the plaintiff to say that the wrong party called for payment before, for she called with him, and equally with him is bound by that judgment.

The learned county judge in his opinion, affirming the judgment of the justice of the peace, regards himself bound upon this question by the decision of the court in Yorks v. Steele (50 Barb. 397). In that case the sheriff of Livingston county, by virtue of an execution against Yorlcs, levied upon, and took from the possession of Steele a horse as the property of Yorks. Steele sued the sheriff and recovered possession of the horse. On the trial of that action, Yorks was examined as a witness in behalf, not of Steele, but of the sheriff, and gave testimony to the effect that he owned the horse. Subsequently Yorks brought action against Steele to recover the same horse. It was claimed in behalf of Steele, that the action between him and the sheriff was a bar or estoppel to the action brought by Yorks and the trial court so decided. But the General Term reversed that decision and decided that the sheriff was in no sense the agent of Yorks, but that he was the agent of the plaintiff in the execution; that the sheriff was .the agent of Yorks’ adversary; that the action against the sheriff was merely to recover possession of the horse, and all that was necessary to determine was that Steele at that time had a right of possession as against the sheriff; that Yorks never had had his day in court on the question of tina and consequently the former judgment was no bar to his action. But Yorks did not in that action give any testimony to show that either of the contending parties therein was the true owner of the horse, but on the contrary, he testified there, as he did in his own action, that he was the owner of it, and his action against Steele was in perfect harmony with the testimony which he there was called upon to give.

This case, therefore, is not brought within the line of the decision of the case of Yorks v. Steele (supra), but rests rather upon the doctrine that a person, who has by his acts procured 'the rendition of a judgment in a given case, cannot afterwards be heard to impeach that judgment in any respect for his own benefit. This view of the case renders it unnecessary to consider any other question presented by the appellant.

It follows that the judgment appealed from should be reversed.

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

Judgment of the County Court of "Wayne county appealed from reversed, together with that of the justice of the peace, with costs in this court and in the County Court.


text:
    Michael Kavanagh, Appellant, v. Amzi L. Barber, Respondent.

      Nuisance — absence of title in the plaintiff to the premises affected — amendment of a complaint on the trial.

    On the trial of an action brought to recover damages for the personal discomfort, to which the plaintiff was subjected in the occupation of the house in which he- and his family dwelt, by reason of a nuisance created by the defendant in-operating an asphalt factory (the complaint in which action contained no allegation that the plaintiff had any title or interest, as lessee or otherwise, in the land which was affected by the nuisance), the plaintiff offered to show that, while the title to the premises was in his wife’s name, he had furnished the purchase money and paid the taxes and was in occupation and control under an agreement made with his wife.

      Held, that the offer was incompetent under the complaint, and the evidence was properly rejected.
    The Court of Appeals having reversed a former judgment in favor of the plaintiff on the ground that there was no allegation or proof in the case that plaintiff had any title or interest in the land which was affected by the nuisance, the-plaintiff, on the new trial, after the rejection of an offer to show that, while the-title to the land ivas in the plaintiff’s wife, he had furnished the purchase money and paid the taxes and was in occupation and control under an agreement, made with his wife, asked leave to amend the complaint by inserting an allegation that ever since the purchase of the premises in question he “has been- and is now in legal possession thereof, under an agreement with said wife,”" which was refused.

      Held, that no facts being shown excusing the failure to insert such an allegation, originally, the General Term would not be justified, under the circumstances,, in reversing the ruling made by the trial court.
    Appeal by the plaintiff, Michael Kavanagh, from a judgment of the Supreme Court, entered in the Erie county clerk’s office May 5,. 1892, upon a nonsuit directed at the Erie Circuit.
    The complaint in the action was as follows:
    “The plaintiff above named, by Day & Romer, his attorneys,, complains of the defendant above named, and for cause of action against him alleges on information and belief:
    “ That for about fourteen years last past, this plaintiff has resided-, with his family, consisting of his wife and five children, in a house- and lot owned by plaintiff’s wife, on the northerly side of Fourth' street, in the city of Buffalo, Erie county, N. V., said house being, known as No. 347 Fourth street.
    “ That on or about the 1st day of May, 1884, said defendant, in ■disregard of the rights of this plaintiff, erected, or caused to be ■erected, on a lot on the southerly side of Fourth street, opposite the house of this plaintiff, and has since maintained, or caused to be maintained, an establishment and apparatus for manufacturing paving and roofing material from asphaltum and other substances, and ■on the lot in question heats, boils and otherwise prepares and manipulates by day and by night, large quantities of asphaltum and substances which give forth and emit divers disagx’eeable, offensive, xxoxious axxd unwholesome gases, smells, odoi’s and stexxches, x’enderixxg the air and atmosphere in the locality of plaintiff’s dwelling foul and unwholesome, and by reason thereof plaintiff -and his family have been put to much and serious inconveniexice, discomfort, ¡sickness and damage, and have been obliged to keep the dooi’s and windows of their dwelling by day and by night tightly' closed, even in the waxmest weatlxex-, and the food px’epax’ed for the use of the plaintiff and his family has beexx so impregnated by said gases, and ' the foulness of the atxixosphei-e, caused as aforesaid, as to become ■disagx’eeable to the taste, and uxxwholesoxne, axxd the fine saxxd used by said defendant ixx his said.business, and the soot and other disagreeable axxd unwholesoxne xnatter 'engendered in his factoi’y, has beexx blown by the wind against and upon and into the dwelling of plaintiff, to such an extexit that plaintiff axxd his family have been ■deprived of the front room of said dwelling, and have been obliged to remove the curtains and carpet therefx’om, and have been prevented from pex’forming ordinary household work at usual and convenient times, and many times have been compelled to wash the ■clothes a second time, and have also been depxived, by x’eason of ■defendant’s said acts, axxd on account of such gases, smells, sand, soot and other disagx-eeable and unwholesome mattex*, of the ordixxax-y and comfoi’table use and exxjoyxnent of said premises axid dwelling, .and plaintiff’s said wife and family have been made ill and sick by said sxnells axxd stenches, caused and blown as afoi’esaid, and oxxe off plaintiff’s daughters, to wit, Annie, aged nineteen years, died on July 27, 1888, froxn sickness caused or aggi-avated by said stenches, smells, soot and sand, or some of them, and plaintiff has been deprived of the services of his said wife and children on account thereof, and has been compelled to expend divers large sums of money for medical attendance on account of such sickness caused as aforesaid, and by reason of the matters aforesaid, and of defendant’s wrongful acts in erecting and maintaining, or causing to be erected and maintained, the said apparatus and establishment, and carrying on said business as aforesaid, this plaintiff has sustained loss and damage in the sum of ten thousand dollars.
    “ Wherefore plaintiff demands judgment against said defendant for the sum of ten thousand dollars, besides costs.”

      H. G. Da/y, for the appellant.

      Sheldon T. Viele and Ghmton Spenoer, for the respondent.
   Macomber, J.:

Upon the first trial of this cause there was a disagreement of the jury. A second trial was had which resulted in a small verdict for the plaintiff. It was affirmed by this court in an opinion reported in 59 Hun, 60; 12 N. Y. Supp. 603; but was reversed by the Court of Appeals in a decision reported in 131 N. Y. 211.

This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of a nuisance created by the defendant in operating a factory for the manufacture of asphalt for paving purposes. There was sufficient evidence given on the former trial, which was reviewed by this court, to sustain the plaintiff’s allegation that the fumes arising from the asphalt penetrated' the house occupied by himself and his family to their great annoyance and discomfort. It was shown that the air of the whole neighborhood was tainted with the odor, and there was some evidence that members of the plaintiff’s family became ill thereby. The principal damage, however, for which this action was brought, as is stated by the Court of Appeals in its decision hereinafter referred to, was in the personal discomfort to which the plaintiff was subjected in the occupation of the house. The Court of Appeals reversed the judgment of this court, and granted a new trial upon the ground, as we understand it, that there was no allegation, or proof, that the plaintiff had any title or interest, as lessee or otherwise, in the land which was affected by the nuisance. That court, by Andrews, J., says: The house was owned by the plaintiff’s wife, and had been occupied for fourteen years by the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, had no lease or other interest in the realty. The family, as is to be inferred, lived in the house by sufferance of the wife. The possession of the house followed the legal title. Both the occupation and the possession, in a legal sense, was that of the wife and not of the husband. (Martin v. Rector, 101 N. Y. 77.) The husband supported the family. The, question presented is, whether under these circumstances a private action can be maintained by the husband for the discomfort caused by the offensive vapors. "We find no precedent for such an action by a person so situated.” Thence follows a review of the important and controlling cases and authorities upon the question discussed, and the conclusion, as above stated, was reached that the plaintiff could not maintain this action upon proofs as there disclosed, and a new trial was accordingly granted.

The learned counsel for the plaintiff, however, upon the third and last trial, when a nonsuit was directed by the trial court on the ground that the complaint did not state a cause of action, offered to prove certain facts which were stated by counsel in the opening of the case to the jury, the material portion of which was as follows: That the plaintiff intermarried with his present wife about twenty-two years ago, and that prior to that time he occupied another dwell7 ing in the same block as the one now owned by his Avife and occupied by her and the family, but his present wife continued to live with him in his former residence until they removed, with the children, to the present abode mentioned in the complaint; that the plaintiff furnished all the money to purchase the lot and to build the house No. 347 Fourth street, and has ever since occupied, possessed and controlled the same, paying all the taxes assessed thereon, and paying for all the repairs and improvements which have since been made thereto; that he, the said plaintiff, has ever since the purchase of said premises No. 347 Fourth street, and the building of said house thereon, occupied, possessed and controlled the same under an agreement made by him with his said wife, when said premises were first purchased and paid for by him, and the title thereto taken in the name "of his said Avife, that he, the said plaintiff, with his said children might occupy the same as a home for himself and his children so long as he lived, and that he might occupy, possess and control the same as his home the same as he had that in which they were then living.”

This offer was objected to and rejected by the court, and thereupon the plaintiff’s counsel asked the privilege of amending the complaint by inserting after No. 347 Fourth street, the words, “and ever since the purchase thereof ,has been and is now in legal possession thereof under an agreement with said wife.”

Notwithstanding the elaborate argument addressed to us upon the main question by the learned counsel for the appellant, it is clear that under the decision of the Court of Appeals, in this case, no recovery could be had upon the complaint, and the offer of proof thereunder was, within the reasoning of the Court of Appeals, incompetent.

But it is insisted that the trial court erred in refusing the application of the plaintiff to amend his complaint in the respect above stated. It is apparent, that the proposed amendment was offered in order to meet the objection made by the Court of Appeals. Whether the same should, or should not, have been allowed under-section 723 of the Code of Civil Procedu ye depended upon many circumstances. The appeal book contains no affidavit or other proof' excusing the failure of the plaintiff to insert such an allegation in the original complaint. Though the plaintiff upon this question is. entitled to the exercise of the discretion of the court at General Term, yet, under the established practice, we should not be justified in reversing a ruling made under the circumstances disclosed, unless, some facts were laid before us excusing the failure to insert such an allegation originally; thus presenting some ground for the exercise of a judicial power. After a protracted and thorough litigation, such as this action has undergone, we think it will not suffice, for the plaintiff merely to rise in court at the trial and ask for an amendment of the character and controlling influence of the on©; proposed in this instance.

It follows that the judgment appealed from should be affirmed.

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

Judgment appealed from affirmed.


author: Maoomber, J.:

text:
    Sarah V. Denise, Respondent, v. Albert L. Swett, Appellant.

      Manufacture of a patented w'ticle— implied contract to continue to pay royalties — ba/i'rel headers and presses — methods of construction and operation — jurisdiction of the State courts — licensee estopped from questioning the validity of patent.

    A. manufacturer obtained from the owner of a patent an exclusive license to manufacture and sell the patented article, subject to the payment of a stipulated royalty; the contract, which was made for one year, contained a provision that it might be extended for any length of time which the licensee might desire, within the life of the patent, and also provided that in case of a violation by the licensee of the terms of the agreement, it should, at the option of the owner of the patent, be and become null and void, and he might resort to any legal remedy, and that the manufacturer should not thereby be discharged from liability for royalty due at the time of the exercise of such option.
    After the contract had been extended several times from year to year by mutual consent, negotiations for a further extension were had at about the end of the term of the last extension, but they proved fruitless, and the patentee thereupon notified the licensee that negotiations for an extension were ended ; the licensee accounted for and paid the royalties accrued up to the end of the year for which the license had been last extended, and thereafter proceeded to manufacture and sell articles substantially the same as the patented article, but refused to continue the payment of royalties, although the patent was still in force.
    The owner of the patent took no measures to prevent such manufacture and sale, but after it had continued for some time, sued the manufacturer to recover royalties at the rate fixed in the contract, and recovered judgment therefor.

      Meld, that the recovery was to be sustained on the ground of an implied contract which was manifested by the conduct of the defendant.
    'That having once settled upon the existence and terms of the contract there necessarily arose an implied promise on the part of the defendant to pay for the use of the patented invention under that agreement the sum therein provided for.
    'That the fact that the owner of the patent affirmatively objected to such further manufacture and refused to continue the contract under the old terms, did not preclude a recovery, for the reason that the defendant ought not to be heard to deny the existence of a contract without which he would not originally have begun the manufacture and sale of the patented article.
    'That the conduct of the parties created a virtual extension of the original contract.
    The articles manufactured and sold by the defendant were barrel headers and presses, and it appeared that the only difference between the machines made before the alleged expiration of the contract between the parties and those made thereafter, consisted in the mode of fastening the follower to the screw, but each arrangement served the purpose, and that only, described in the specifications annexed to the patent.

      Held, that the two methods were “equivalents,” and that the machines were substantially the same.
    The answer contained an averment that the machines on which royalties were, sought to be recovered, under the contract, were not covered by the plaintiff’s, patent, and did not infringe it.

      Held, as the only effect of such allegation was to raise a question of comparison, between the machines manufactured at different periods, which comparison was. material for the sole purpose of determining whether during the period in suit the defendant had manufactured and sold machines answering to the description contained in the contract, and if so, how many, that no question off infringement was raised, and consequently the State court was not deprived, by reason of such allegation, of jurisdiction of the action for royalties brought, upon the contract.
    The defendant urged that the principle of the plaintiff’s patent had been in public use before his patent was issued, and, therefore, the patent was useless.

      Held, that the defendant, having entered into the contract with the plaintiff, and having taken from him a license to make and sell the subject of the patent,, could not, for the purpose of a defense to an action to recover royalties, question the validity of the patent.
    Appeal by tbe defendant, Albert L. Swett, from a judgment, of the Supreme Court entered in the Monroe county clerk’s office: October 5, 1892, on the report of a referee.

      P. JO. Pitts, for the appellant.

      Q. Van Voorhis, for the respondent.
   Maoomber, J.:

The defendant was formerly a member of the firm of Sampson &■ Swett, a copartnership engaged in a manufacturing business. This. copartnership was dissolved in the month of January, 1890, and the: defendant .assumed all obligations of the firm then outstanding, and agreed to indemnify Sampson from any loss, damages or costs growing out of their joint business.

On the 3d day of July, 1882, an agreement was made between, one Henry H. Brown, of the first part, and Sampson & Swett, of' the second part, by which Brown, who was the owner of an invention known as an improvement in barrel headers, for which, and also for ‘an improved screw barrel press, letters patent had been, issued, agreed to license for the term of one year from the 1st day of July, 1882, Sampson & Swett to manufacture and sell, exclusively, such improvements within the entire territory covered by the-letters. Brown further agreed, upon receiving a notice of at least, sixty days before the expiration of such license, to extend the contract for any length of time within the life of the patents which Sampson & Swett might desire. Sampson & Swett, on their part, agreed to pay for the use of such patented inventions a license fee or royalty of three dollars and fifty cents upon each and every dozen presses manufactured and sold by them. The contract contained a further clause to the effect that in case the licensees should violate the terms of the agreement in respect to payments, etc., “ this contract and all the provisions thereof shall, at the option of the party of the first part, be and become in all things null and void, and the party of the first part may resort to any legal remedy, and the party of the second part shall not thereby be discharged from liability to the party of the first part for any license fees, commissions or royalty due at the time of the exercise of such option.”

Under this agreement, the defendant and his copartner began to manufacture and sell the machines, and continued to manufacture and sell the same up to the time of the dissolution of the defendants’ firm, and after such dissolution this defendant continued alone to manufacture and sell the same up to the beginning of this action, which was on November 16, 1891. The defense interposed consisted of a denial of liability for the manufacture and sale of such machines after the month of June, 1886, when,, as it is claimed, the above contract was terminated. The further defense is, that the machines manufactured by the firm and by the defendant after the last-named date differed materially from the machines manufactured and sold under Brown’s patents.

The referee, in accordance with a clear preponderance of the evidence, has found in his report that there was no substantial difference in such machines. It is further abundantly established by the evidence that after the month of June, 1886, and up to November, 1891, there were manufactured and sold by Sampson & Swett and by the defendant Swett, in all, 529 dozen upon which no royalties or license fees had been paid, for which, at the rate of three dollars and fifty cents per dozen, this plaintiff, as assignee of Brown, brings this action, and judgment in the sum of $1,851.50 was accordingly directed in behalf of the plaintiff.

It is contended by the learned counsel for the appellant that the agreement of 1882 was not continued after June 30, 1886, and was not in force or effect between the parties thereto after that date. This proposition was the subject of several requests made to the referee to find as a fact.

It is true that the agreement between the parties was not in terms extended by Brown beyond June 30, 1886. From that date to the beginning of this action, the defendant denied all liability to Brown, and his counsel now urges that inasmuch as the contract had not in words been extended, there can be no recovery, but that the plaintiff’s remedy, if any, is hy an action for the infringement of his patents, and that such action is solely cognizable by the Federal courts. But the recovery, we think, may in this case be sustained upon the ground of an implied contract which was manifested by the conduct of the defendant and his copartner. Having once settled upon the existence and terms of the contract in words, there would necessarily arise an implied promise on the part of the defendants to pay for the use of such patented inventions under this agreement the sum therein provided for. And, notwithstanding the fact that the plaintiff’s assignor, Brown, affirmatively objected to such further manufacture and refused to continue the contract under the old terms, it does not, as it seems to us, preclude a recovery, for the reason that the defendant ought not to be heard to deny the existence of a contract without which he would not originally have begun the manufacture and sale of barrel headers. Having once entered into contractual relations with the owner of the patent of the character above mentioned, it cannot be permitted to the licensee to repudiate liability measured by the terms and conditions of the contract.

The learned referee, James O. Smith, has written the following opinion, which we adopt, fully covering other branches of the case: “ The agreement, which was made in July, 1882, for the term of one year, contained a provision that it might he extended for any length of time which the defendant’s firm might desire, within the life of the patents therein mentioned. By mutual consent, it was extended from year to year, until July, 1886. Negotiations for a further extension were had about that time, hut they proved fruitless, and Brown gave notice that negotiations for an extension were ended. Thereupon a settlement was had, and the firm paid royalties, at the rate stipulated in the agreement, on all the barrel headers and presses made and sold by them' prior to July, 1886. Nevertheless, the firm while it existed, and the defendant, after he acquired the interest of his partner in the firm, continued to manufacture and sell barrel headers and presses, which the plaintiff contends were substantially like those which had been previously made and sold by them. That contention is controverted by the defendant, he asserting that there were material differences between the machines made subsequently to the 1st of July, 1886, and those made previously.

“ The evidence on that point supports the plaintiff’s contention. A specimen of each class of machines was produced at the trial, and testimony was given as to their differences. The only difference appears to be in the mode of fastening the follower to the screw. The defendant testified that the machines made by him prior to July, 1886, had £ a pin through the screw under the washer; the pressure of the screw came on top of the washer.’ Those made since £ have a groove turned in the lower end of the screw, and is held in place by a washer made in two parts, the washer fitting into the groove in the screw; the pressure of the screw bears upon a separate casting placed on the inside of the follower and under the washer.’ The substance of the testimony is understood to be that the fastening in the earlier machines was by means of a pin through the end of the screw ; in the later ones, it was by means of a groove at the end of the screw, and a washer fitting into the groove. ’So far as can be gathered from the testimony, each arrangement seems to serve the purpose (and that only) described in the specifications annexed to the patent, of £ fastening the follower to the end of the screw, but swivelling it in place, so that it can turn freely in either direction.’ £ Swivel ’ is defined by Ainsworth, in his dictionary, as £ something used in or on another body, so as to turn round in or upon it.’ The definition applies to either arrangement.

££ It does not appear that either method differs from the other in practical operation or utility, or even hi durability or cost. The two seem to be identical in function, and substantially identical in performing that function,’ and so are equivalents.’ Walker on Patents (2d ed.), § 362.

“ It must be held, therefore, that the machines made during the two periods were substantially alike. That being the case, I think the defendant and his firm, in continuing to make and sell the machines after June, 1886, in the circumstances shown, became liable * to pay the royalties thereon fixed hy the contract, notwithstanding there was no express extension of the contract, and notwithstanding the notice then given by Brown that negotiations for a further extension were at an end. The subsequent conduct of the parties, in the circumstances, was a virtual extension of the contract.

“ The case of the Union Manufacturing Co. v. Lounsbury (41 N. Y. 363) seems to he an authority for that position. The learned counsel for the defendant suggests that that case is distinguishable from this, by reason of the fact that there the notice forbidding the further use of rights under the agreement was given during the lifetime of the agreement, while here the notice that negotiations, for an extension were ended was not given until the agreement had expired. It is true that the term covered by the extension of the agreement in question expired with the month of June, 1886, and the notice referred to was given at about that time, as has been remarked, but the agreement, by its terms, -was to be extended for any length of time during the life of the patents that the defendant’s firm might desire, the firm giving notice of such desire. Nothing-was done by Brown towards rescinding the agreement or prohibiting the use of the rights conferred by it, beyond giving the notice, already mentioned. It was competent for the parties to continue the agreement, notwithstanding that notice, and to waive the formalities prescribed by the agreement. The desire of the defendant and his firm to extend the agreement was manifested by then continuing to use the right, which it gave them, of manufacturing aud selling the machines, and the plaintiff’s acquiescence in such use was; shown by his taking no measures to prevent it and by his suing for the royalties provided for by the agreement. There does not. appear to he any substantial difference between this ease and that of the Manufacturing Co. v. Lounsbury, so far as the point under consideration is concerned.

The cases cited hy the defendant’s counsel, which hold that a State court has not jurisdiction to try the question of an infringement of a patent for an invention, have no application to the case in hand. There -is no question of an infringment here. The action is on the contract. The only allusion to an infringement in the pleadings is .found in one of the counts in the defendant’s answer, which alleges that the machines made and sold after July 1, 1886, were not •covered by Brown’s patent and did not infringe it. That averment • does not deprive the State court of its jurisdiction to try the question whether the plaintiff is entitled to recover upon the contract • set forth in the complaint. Nor would it have given a Federal court jurisdiction of the action, if the action had been brought there, and the like pleadings had been put in. (Hartell v Tilghman, 9 Otto, 547; Albright v. Teas, 16 id. 613; Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46.)

In the circumstances of the case, the only question raised by the portion of the answer referred to, is one of comparison between the machines made at the different periods above mentioned, and that comparison is material, not for the purpose of determining whether the defendant has infringed the plaintiff’s patent, but for the sole purpose of determining whether, since June, 1886, the defendant, or his firm, has made and sold machines answering to the description contained in the contract, and if so, how many.

“ If that question takes the case out of the jurisdiction of the 'court, it follows that the defendant, in every action brought in a State court to recover royalties or other comjiensation agreed to be paid for the use of a patent right, may oust the court of jurisdiction by interposing a defense like the one in question, and if he is then ■sued by the plaintiff in a Federal court for the same cause, he may procure there a dismissal of the complaint for want of jurisdiction in that court, by omitting to set up such defense in his answer.

“ In Hyatt v. Ingalls (124 N. Y. 93) it was contended that a i-eissue of a patent, under which the plaintiff claimed, was void for the reason that it embraced claims not included in a former reissue, :and omitted claims which were in the latter, and it was also con-fended that the issue thus made was not within the jurisdiction of the State court (p. 102), but the contention did not prevail, the court holding that it was matter of comparative construction of the two reissues, and although the last reissue was broader than the first, it embraced the claims represented by the former reissue substantially, •and with a sufficient distinctness to preserve them within the prin■ciple that the reissue of letters patent, embracing more than did ■■those surrendered, will be deemed invalid as to the excess, or new claims only, and the State court had jurisdiction (p. 103). So here, the matter is one of comparison of the two machines, and they being substantially alike, no question arises which the State court cannot determine.

“ The defendant’s counsel argues that the principle of the Brown patent had been in public use before his patent was issued, and, therefore, the patent is worthless. The defendant, or his firm, in whose place he now stands, having entered into the contract with Brown, and having taken from, him a license to make and sell the subject of the patent, cannot, for the purpose of a defense to an action to recover the royalties, question the validity of the patent. (Marston v. Swett, 66 N. Y. 206; S. C. on 2d appeal, 82 id. 527; Hyatt v. Dale Tile Manfg. Co., 106 id. 651.)

“ The defendant, having assumed the liabilities of his firm, on its dissolution, is liable for royalties on the machines made by the firm, as w;ell as on those made by himself, since June, 1886.

The assignment made by Dunning, as the general assignee of Brown to the plaintiff, carried the claim sought to be recovered herein.

“ If the views above expressed are correct, the plaintiff is entitled to recover.

“ There is evidence tending to show that the defendant and his firm have made and sold 6,347 machines since June, 1886, upon which no royalty has been paid. The royalty upon them, at the rate fixed by the contract — three dollars fifty cents per dozen — amounts to $1,851.50. It appears that forty-eight machines, sold in July, 1886, were manufactured previously, and the royalties on them were paid.

The plaintiff’s counsel claims interest on the amount due, but interest is not demanded in the complaint, and as it appears that no demand was made for payment or for a report of sales until about the time of the commencement of the suit, I think no interest should be allowed.”

It follows that the judgment appealed from should be afiirmed, with costs.

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

Judgment appealed from affirmed, with costs.


text:
    Louis J. Shelmire, Respondent, v. Williams & Clark Fertilizer Company, Appellant.

      Contract in writing, in supposed duplicate — variances in the writings retained by the respective pa/rties ■— burden of proof.

    In an action brought to recover a salary claimed to have accrued after an alleged unlawful discharge-from employment before the expiration of the term of such employment, it appeared that the contract of employment was executed in supposed duplicate, but the paper retained by the plaintiff read: “We to have your services for two additional years,” while the paper retained by the defendant read: “We to have the refusal of your services for two additional years.”

      Held, that for the purposes of arriving at the intent of the parties, and particularly for the purpose of determining the liability of the defendant, the two instruments must be construed together as constituting the agreement between the parties.
    That the burden of proof rested upon the plaintiff to show that the contract in his possession was the true one, and that he failed to do this, for the reason that the contract in the possession of the defendant must be deemed equally true and binding.
    That the plaintiff having failed to establish his case by a preponderance of evidence, and the evidence in the case consisting wholly of writings, the construction of which was to be determined by the court, should have been nonsuited.
    The action was tried in a County Court, and at the trial the plaintiff was permitted to give evidence designed to establish that the verbal agreement between the parties preceding the written contract was for an employment for the period and at the rate of salary claimed by the plaintiff.

      Held, that in an action of law, in a court having no general equity jurisdiction, and hence with no power to reform the contract, the evidence was imcompetent, under the rule that all negotiations leading up to a written contract are deemed to be merged in the written instrument.
    Appeal by the defendant, the "Williams & Clark Fertilizer Company, from a judgment of the County Court of Monroe county, entered in the Monroe county clerk’s office November 23, 1892, on the verdict of a jury in an action brought by an appeal by the plaintiff to that court from a judgment of the Municipal Court of the city of Rochester, and also from an order denying the defendant’s motion for a new trial made on the county judge’s minutes, entered in said clerk’s office on November 23, 1892.

      JR. JS. White, for the appellant.

      T. D. Wilkioi, for the respondent.
   Macomber, J.:

This action, was originally brought in the Municipal Court of the city of Rochester, and, on the trial thereof before one of the judges of that court, resulted in a decision in favor of the defendant upon the merits. On appeal by the plaintiff from such judgment demanding a new trial, the case was retried in the County Court of Monroe county, before the county judge and a jury, and resulted in a verdict in favor of the plaintiff for the amount claimed in the complaint, and to which the plaintiff was entitled, provided he had any right of action.

The action was brought to recover the plaintiff’s unpaid and unearned salary for five months from September. 30, 1891, upon the ground of a discharge of the plaintiff from the employment of the defendant in violation of the written agreement between the parties. This contract bears date October 3, 1890. It appears, however, that it was executed in duplicate, or in supposed duplicate, consisting of a letter from defendant to the plaintiff and the latter’s acceptance of the same. The one relied upon by the plaintiff is as follows : “Mr. L. J. Shelmire. Dear Sir — We will pay you the sum of eight hundred dollars and traveling expenses, for the term of one year, commencing Oct. 1, 1890, and ending Sept. 30, 1891. We to have your services for two additional years at a salary of one thousand dollars per year and expenses as above stated. You to attend to shipping and such office work as we may assign to you, and traveling on the road, soliciting orders if we wish. you to.” The defendant duly accepted in writing the terms of the foregoing proposition properly indorsed upon the letter. The paper which was retained by the plaintiff was marked “ copy,” although it was in fact signed by the defendant as an original, and accepted as an original by the plaintiff.

The contract retained by the defendant, executed in the same way, was in all respects like the one above quoted except, that in the second sentence it read: “We to have the refusal of your services for two additional years ” instead of “We to have your services for two additional years.”

It is plain, therefore, if the contract relied upon by the plaintiff was the true and only one between the parties, that the judgment appealed from should be sustained; while it is equally apparent, that if the contract retained by'tlie defendant is the true one, no cause of action was made out by the plaintiff ; for it is clear that a contract for the “ refusal ” of the services of the employee for tho two years would not obligate tlie employer to accept such services.

But for the purposes of arriving at the intent of the parties, and particularly for the purpose of determining any liability of the defendant, these two instruments must be construed together as constituting the agreement between the parties. (Morss v. Salisbury, 48 N. Y. 648; Martin v. Martin, 48 N. Y. St. Repr. 690.)

The plaintiff had no legal right, because he happens to be in possession of the duplicate favorable to his present contention, to claim that the defendant should respond to him in damages, while the duplicate of such agreement, executed with the same formalities, in the hands of the defendant, shows that he cannot recover anything. The burden of proof rested upon the plaintiff to show that the contract in his possession was the true one. This he has failed to do, because the contract in the possession of the defendant must be deemed equally true and binding. The plaintiff having failed, therefore, to establish his case by a preponderance of the evidence, such evidence consisting wholly of writings for the construction of the court, should have been nonsuited at the trial. (Syms v. Vyse, 2 N. Y. St. Repr. 106.)

It is true that evidence was permitted to be given upon the trial by the plaintiff, designed to establish that the verbal agreement between the plaintiff and the defendant was for an employment for three years at the rate of $800 for the first year, and $1,000 per year for the two remaining .years. But in an action at law, in a court having no general equity jurisdiction, and hence with no power to reform a contract, this evidence appears to us to have been incompetent under the well-established rule that all negotiations leading up to a written contract are deemed to be merged in the written instrument.

The learned county judge permitted the jury to have recourse to the conversation and circumstances anteceding the making of the agreement. The relation of facts given by the plaintiff was diametrically denied by the principal officer of the defendant with whom the negotiations were conducted, and whose testimony tended to show quite clearly that on account of the lack of experience of the plaintiff, and hence the uncertainty of his giving satisfaction to the. company, the defendant’s agent would not enter into any arrangement beyond one year at the outset, but would determine afterwards,, and in view of the character of the services, whether he would retain the plaintiff in the employment of his company. These were-the only two witnesses testifying upon that subject.

Should this judgment be permitted to stand, it would be palpably in violation of a written contract executed by the plaintiff and held by the defendant. We must hold, therefore (the' case having originated in a court where a reformation of the contract was neither sought nor attainable), that the plaintiff has failed to carry the burden imposed upon him by law, showing that his right to recover was. based upon a preponderance of the evidence.

The judgment and order appealed from should be reversed.

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

Judgment and order of the County Court of Monroe county appealed from, reversed, and a iiew trial granted, with costs to abide the event.


text:
    Reuben Doty and Joseph Doty, Appellants, v. Alexander Smith, Respondent.

      Independent entry, in a book of accounts, inf amor of the party making it.

    An entry, made by one party to an action against tbe other party, oí a singly charge of a certain sum, in an account book, is not within the rule making admia • sible in evidence an entry upon a merchant’s book, but is an independent entry, by a party, oí evidence in his own behalf, and, therefore, is incompetent when, offered in his behalf.
    The admission in evidence of such entry, by a referee, in a case presenting a closes question as to defendant’s right to succeed, is an error which requires a reversal of a judgment rendered in favor of the party offering it.
    Appeal by the plaintiffs, Reuben Doty and Joseph Doty, from a judgment of the Supreme Court, entered in the office of the clerk of Allegany county November 18, 1892, on the report of areferee.

      William Spargur, for the appellants.

      Church & Church, for the respondent.
   Macomber, J.:

This action was brought upon an open account, and. judgment was prayed for the sum of $1,275.58. The defense was a denial, payment, Statute of Limitations and counterclaim, with a prayer for ■■an affirmative judgment for $1,621.41. The referee found a balance due to the plaintiff upon the open account of $123.28, for the value of a wagon, $80, and for the value of land sold by the plaintiffs at the request of the defendant, $73.61, amounting in all to the ■sum of $276.89.

He also found that the defendant should be credited with the sum •of $400, which would leave a balance due to the defendant of $123.11, for which, with interest, judgment was directed.

The only question upon this appeal relates to the proof of the counterclaim of $400. The referee found that between the years 1882 and 1886, the defendant, upon an oral agreement, sold to the plaintiffs all his right, title and interest in a claim which he, the defendant, had to the payment for one-half of the expense in building a partition wall upon liis lands and those of one "William T. Barnes. In the year 1871, the defendant was preparing to build a brick store upon his lot, and thereupon he and Barnes entered into an oral agreement by which it was agreed that the defendant should erect the northerly wall of his store building on the division line between his lands and those of Barnes, so that one-lialf of the wall would stand on each lot, and Barnes, when he built on his lot, should pay Smith, the defendant, one-half of the cost. In pursuance •of this agreement, Smith built upon the division line a stone cellar wall extending from the front to the rear of his lot, and a brick wall upon the stone cellar wall, and such wall has ever since been used. Barnes made some prepai-ations to build and to use this wall, but did not in fact, use the same during his lifetime. The title of the Bames lot came into the hands of one A. O. Yery, and Mr. Yery was preparing to build a brick store upon the lot,- but did not do so, but shortly thereafter conveyed the land to one Dr. W. W. Crandall, who erected a store building thereon and used the wall as a party wall, and he is now using the same.

Sometime before this, however, the defendant undertook to xecover from the Barnes estate one-half of the expenses of building the wall, but failed in his action solely upon the ground that the condition upon which he should receive such pay had never been fulfilled, inasmuch as neither Barnes nor his grantees had then erected a building and used the wall. ■ But after the erection of the building and the use of it by Crandall, this claim was made against the plaintiffs. It is claimed, that at the time of making this oral agreement, the plaintiffs applied towards the $400 (which was claimed by the defendant to be the sum agreed upon although somewhat less than one-lialf the expense of building the wall) a wagon, of the agreed price of ninety dollars, as part payment for the oral transfer of the claim assigned to the plaintiffs against the estate of Barnes. That estate, however, was hopelessly insolvent and was believed by the plaintiffs to'be insolvent at the time that the defendant claimed this oral agreement was made.

The proof of the defendant’s counterclaim rests upon the testimony of himself and that of his wife, taken upon the previous trial of this action. It is, in its nature, quite fragmentary and inconclusive. The bargain and transfer were denied by the plaintiffs, who claimed that the ninety dollars for the wagon was a part of their original account against the defendant.

The case presented a very close question in regard to the principal fact contended for by the defendant, and was one where it is extremely doubtful if the defendant succeeded in bearing successfully the burden imposed upon him by law, to establish his counterclaim by a preponderance of the evidence. The defendant testified that he charged, at or about the time of the transaction, the plaintiffs with this sum of $400 upon his books. He says he was keeping his own books at the time; that he was unable to find his journal, but found his ledger in which this account appeared. He identified the entry upon the ledger, and said: This is the charge. This refers to the matter I have been speaking of. This is the identical matter. This charge was made at the time. This charge was copied from my day book.” Thereupon counsel offered in evidence the $400 charge against the plaintiffs, as the same appeared on page 27 of the defendant’s ledger. This was objected to as incompetent, and the objection overrule - and an exception was taken; but the evidence was received.

It is stated in the case that this entry appears on the book under date December 13, 1881, in this maimer: R. & J. Doty, to Alexander Smith, Dr. $400.” It is urged upon our attention by the learned counsel for the respondent, that even though it was error to receive defendant’s ledger in evidence, yet that evidence may be disregarded; for, as he contends, there was abundant other evidence to establish the defendant’s case. That this evidence was incompetent admits of no doubt. It was not an entry upon a merchant’s book, but was, on the contrary, an independent entry, by a party to the suit, of evidence in his own behalf. Its reception by the referee may have turned, and probably did turn, the scales of his decision in favor of the defendant upon this question of fact. It is such an error, we think, as requires us to reverse the judgment entered upon the report, and to grant a new trial.

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

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


author: Macomber, J. :

text:
    Clare A. Benedict, Respondent, v. Milton T. Richardson Appellant.

      Commission to examine witnesses in another State — deposition taken after the return of the commission.

    When a commission, issued out of the Supreme Court of the State of New York, to take the depositions of witnesses in another State upon interrogatories, has been returned with the depositions of some of the witnesses named therein attached thereto, and filed with the clerk, the commissioner to whom it was issued has no power, without further authority being conferred upon him, to thereafter take the deposition of another witness named in the commission.
    If such a deposition is taken, after the return of the commission, it may properly he suppressed under section 910 of the Code of Civil Procedure, on the ground that it was improperly and irregularly taken.
    Appeal by tbe defendant, Milton T. Richardson, from an order of the Monroe Special Term granted October 31, 1892, suppressing a deposition of one Emma C. Benedict, the wife of the plaintiff, purporting to have been taken in Chicago under the authority of a commission issued to one John 3L Prindiville.

      G. Doremus, for tbe appellant.

      Abraham Benedict, for the respondent.
   Macomber, J. :

By stipulation an order was made, at the instance of the defendant’s counsel, in June, 1891, directing that a commission issue to a person named in Chicago, to take the depositions of nine witnesses, one of whom was Emma C. Benedict, upon interrogatories, annexed to the commission. A commission in pursuance of such order having been issued, the commissioner proceeded to take evidence in Chicago, and did actually take the depositions of six witnesses, but not that of Emma O. Benedict. These depositions were returned with the original commission, and properly filed with the clerk of Monroe county on the 21st day of September, 1891. Subsequently, and without any further authority conferred upon the commissioner, the latter proceeded, on the 31st day of May, 1892, to take the deposition of Emma C. Benedict; It does not appear clearly when such deposition was filed.

• The order suppressing this deposition under section 910, upon the-ground that it was improperly and irregularly taken, was correct and should be affirmed. When the commissioner returned his. original commission, in pursuance of the directions contained therein,, and the same was filed with the county clerk of Monroe county, the proper custodian thereof, he no longer possessed any power to-act as a commissioner to take the testimony outside of the State of New York to be used in this State.

We do not think that laches can be imputed to the plaintiff in not making this motion earlier ; for it does not appear distinctly when the deposition so irregularly taken was filed with the county clerk. But the motion was made before any term of the court at which the-case might have been tried, and consequently the defendant could not be prejudiced by the brief delay.

The order appealed from should be affirmed.

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

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


text:
    Theodore E. Bramble, Respondent, v. Elston Hunt and Others, Appellants.

      The value of an attoi'ney’s services — hypothetical questions — the estimate of witnesses not controlling.

    .An error in admitting, on a trial by a referee of an action brought to recover for services rendered by an attorney at law, a question put to a witness for the plaintiff as to the value of tbe services, which was incompetent under the rule that a hypothetical question should be throughout what its name imports and not a question calling for the personal' judgment of the witness upon facts known to him outside of the question and outside of the testimony, does not require a reversal of a judgment in favor of the plaintiff, when it appeared that the value put upon the plaintiff’s services by the answer to such question was the lowest given by any of the several witnesses on the subject, and was in itself a low estimate.
    'Courts are not confined, in their judgment, to a statement in figures of the value of professional services rendered by a lawyer; such matters being peculiarly within the knowledge of courts; when the facts are disclosed, a mere opinion of a witness, though entitled often to much respect, is not by any means controlling.
    Appeal by Elston Hunt, William B. Hunt and Arthur H. Hunt, •defendants, from a judgment entered in the office of the clerk of Monroe county September 14, 1891, on the report of a referee in •an action brought by the plaintiff to recover for professional services rendered by him, as an attorney and counselor at law.
    The hypothetical question, the competency of which is discussed -at the end of the opinion in this case, was as follows :
    Marsenus H. Briggs, sworn for the plaintiff:
    “ I am an attorney and counselor at law; have been since the fall ■of ’74; practiced in Bocliester and know plaintiff, Theodore E. Bramble; • I know his standing as a lawyer; his reputation as a lawyer is very good ; I knew the proceedings for the condemnation of the water rights of Hemlock lake outlet at the time of it, and of 'the plaintiff’s acting with Mr. Bacon as attorney for the mill owners •on Honeoye creek.
    “ Q. Assuming plaintiff to be a lawyer of good ability and high ¡standing, retained by defendants, with others, the owners of upwards ■of twenty mills and factories on Honeoye creek, as junior counsel to 'protect their rights in the proceeding instituted by the city of Rochester to acquire the right to draw water from Hemlock and Canadice lakes, for public use; that the proceedings began in the early part of the year 1884, and were not terminated until the close of 1885; that there were numerous consultations between the defendants and the plaintiff, and between plaintiff and Mr. Bacon, senior counsel, who lived at Rochester, as to the proper men for appointment as commissioners of appraisal in that proceeding ; that, plaintiff prepared said case for trial; that in the trial of said case evidence was given on both sides, of a general character affecting the condition of the stream known as Honeoye creek, which evidence was by agreement of counsel made applicable to the cases of all the property owners claiming damages, and that after such general evidence was in, special evidence was given affecting the particular property of each claimant, including these defendants; that in making preparation for the said trial plaintiff examined upwards of thirty witnesses to be sworn upon said trial, in many cases, re-examining and cross-examining said witnesses and writing out a trial brief of testimony which would be given by each of said witnesses ; that about eighteen or twenty of these witnesses sworn on the trial gave testimony of a general character, affecting all the cases, including defendants, that-four of these witnesses sworn gave testimony as to value of defendants’ property, and . four more w'ere examined by plaintiff on the question of the value of defendants’ property, and weremot sworn upon the trial; that the said case was well prepared for trial; that plaintiff assisted Mr. Bacon in the trial of said case, and conducted in whole or part the cross-examination of twenty witnesses introduced by the city of Rochester; that ten days were consumed in the taking of evidence before the commissioners and two in the argument; that the plaintiff, during the pendency of said proceeding, was in consultation with Mr. Bacon on some matter concerning the proceeding, on an average of once or twice a week, and that the defendant, William Hunt, consulted with plaintiff, on an average of twice a week, with reference to said litigation, from June, 1883, to September, 1885 ; that the damages, in said proceeding claimed by defendants were about- the sum of $19,000, and that the damages actually awarded defendants by the commission were the sum of $8,500; that after the report of the commissioners was made and confirmed, an appeal was taken from the order of commissioners, and that after said appeal, there were numerous consultations between defendant and the plaintiff, concerning the aj>peal and matters connected therewith — what, in your judgment, were the services of the plaintiff rendered to these defendants reasonably worth ?
    “The defendant objected to the question as incompetent and improper; it does not fully state the facts of the case as already proved, too general and indefinite.
    “ Q. You are acquainted with the value of legal services ? A. I don’t know as anybody is; I know the market price of legal services, I think.
    “ The hypothetical question renewed, the objections renewed, and also that the service referred to in the question was not done or performed for these defendants.
    “ Objection was overruled and the defendant excepted.”

      Edmim, Hicks, for the appellants.

      George F. Slocv/m, for the respondent.
   Maoomber, J.:

The plaintiff, between the years 1880 and 1881, rendered professional services, as an attorney and counselor at law, to the defendants, who were copartners in business at Honeoye Falls, N. Y., under the firm name of Hunt Bros., and who were engaged in the manufacture of woolen goods in their mills, situated on the outlet of Hemlock, Oanadice and Honeoye lakes. These services to the defendants grew out of the fact that the defendants, with many other mill owners, were interested and were parties to proceedings instituted by the city of Rochester to acquire the right to draw water from Hemlock and Canadice lakes for public use. The defendants were not consequently the sole parties interested in those proceedings. Nor has the learned-referee attempted to hold them for any more than a fair proportionate share of the expense for the services of the plaintiff. No question, however, is made in regard to the liability of other persons to counsel. Indeed, we do not see how any question of liability of the defendants, jointly with other millers, could be raised, because a nonjoinder of their associates was not set up in their answer; and not having been pleaded is unavailable to them under sections 488, 498 and 499 of tbe Code of Civil Procedure.

An examination of the testimony convinces us that the allowance made by the referee to the plaintiff, which was the sum of $250, was not excessive, but was rather a conservative. estimate of the value of the plaintiff’s actual services to these defendants.

But a somewhat embarrassing question is presented in respect to the mode by which this conclusion was reached by the referee. He says in his opinion that he has adopted, as the proper measure of damages in this case, the sum mentioned by the witness, Beckley, who was called in behalf of the plaintiff. Mr. Beckley was asked: “ Q. Mr. Beckley, from what you know of the services of Mr. Bramble to the defendants, Hunt Bros., in this litigation, what you know of his standing as a lawyer, the responsibility of the work, and from your personal knowledge of all the facts in the case, and assuming Mr. Bramble did prepare the trial brief of the evidence in all these cases; that the Hunt Bros, claim, in round numbers, $19,500, and that they were awarded $8,500, what, in your judgment, were the plaintiff’s services to these defendants worth?” This was objected to as incompetent, and upon the ground that it involved the services performed in nineteen other cases besides that of the defendants, and that the witness was not qualified to answer the question. The objection was overruled, and the defendant excepted. His answer was : “ I should put the value of the services, in answer to the question put to me, as about $250, and if Mr. Hunt’s case had been tried alone, I should put a much greater value on them.”

The referee says in his opinion: “ It has seemed to me, therefore, that I may with propriety, rely upon the judgment of Mr. Beckley, who was engaged in the proceedings on the opposite side throughout, and whose opportunities for knowing the value of the services are better than those of one whose only knowledge is derived from the statement of witnesses as to what the services were.”

That this question put to Mr. Beckley was incompetent, hardly admits of doubt under the decision of Carpenter v. Blake, 2 Lans. 206, and Seymour v. Fellows, 17 N. Y. 180, which follow the well, established rule, that a hypothetical question should be throughout what its name imports, and not a question calling for the personal judgment of the witness upon facts known to him outside of the question and outside of the1 testimony.

This would ordinarily lead to a reversal of the judgment and to a new trial. But we find that Mr. Beckley’s estimate of the value of the plaintiffs services was the smallest of the three witnesses who were called and gave testimony upon that subject. The witness Briggs estimated them to be worth $350, and the witness Humphrey, $300. It is true that the referee was not bound either by the judgment of the witness Beckley, or by that of the other two witnesses; but his being the lowest estimate of the value of the services, and such estimate, being in our judgment, manifestly small, under the facts, we hardly deem it necessary to grant a new trial upon that ground. The opinion of the referee cannot be resorted to for the purpose of reversing his findings. Such findings show, not Mr. Beckley’s- estimate, but the referee’s judgment upon the whole case of the value of the plaintiff’s services.

But it is urged by the learned counsel for the appellant, that the hypothetical question put to the witnesses Briggs and Humphrey was also objectionable. It was, it is true, objected to as incompetent ; but on examination, the question shows that it did not contain the vice ascribed to the question put to the witness Beckley, in that it did not call upon these witnesses to take into account, their own personal knowledge of the extent and value of the services-as actually rendered.

But neither was the learned referee nor is this court, confined in its judgment to a statement in figures, of the value of professional services rendered by a lawyer. Being matters peculiarly within the* knowledge of courts, when the facts are disclosed, a mere opinion of a witness, though entitled often to much respect, is not by any means controlling. "We think, taking all of the circumstances. together, that while the question put to Mr. Beckley was incompetent, no harm has resulted to the defendants by reason of the error, and that consequently we are not compelled to reverse the-judgment upon that ground.

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

Judgment appealed from affirmed.