author: Pratt, J. :

text:
    Anna M. Arnold, Respondent, v. Norfolk and New Brunswick Hosiery Company, Appellant.

      Commendation of his wares by a vendor — when not fraudulent.

    The simple commendation of his wares by a vendor does not constitute fraud, and a dealer may pufE his wares, though he must not lie about them.
    Upon the sale of exclusive rights under certain letters patent relating to sewing machines, a statement by the vendor that he can make such machines which would go faster, does not constitute a fraud, when the vendee knew that the vendor had never made a machine that went faster than the one referred to.
    Appeal by the defendant, the N orfoik and N ew Brunswick Hosiery Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 10th day of August, 1893, rendered upon the decision of the court after a trial at the Kings County Special Term.
    The court before which the action was tried found among other things:
    That on the 10th day of April, 1882, the plaintiff and the defendant, for a valuable consideration, executed and delivered, each to the other, a written agreement under seal, made between Anna M. Arnold, of the city of New York, party of the first part, and the Norfolk and New Brunswick Hosiery Company, a corporation -created under the laws of the State of New Jersey, and doing business in the city of New Brunswick, New Jersey, and at Norfolk, Connecticut, party of the second part, reciting that the party of the first part was the exclusive owner of all rights, title and interest in and to certain letters patent: Letters patent of the United States granted to Satterlee Arnold, dated June 21, 1870, No. 104,532, for an “improvement in modes of uniting edges of knitted goods.” Letters patent of the United States granted to Satterlee Arnold,, assignor, dated May 10, 1881, No. 241,116, for a “device for securing knit fabrics while being cut and sewed,” and letters patent of the United States granted to Satterlee Arnold, assignor, dated November 22,1881, No. 249,734, for “ means for trimming fabrics; ” in which the party of the second part was desirous of acquiring certain rights and privileges and providing that the party of the first part thereby granted to the party of the second part the exclusive right for the United States of America under each of the above-named letters patent, and under any other patent which has been or may hereafter, during the continuance of this agreement, be granted to the party of the first part or to Satterlee Arnold, her husband,, for any improvement or invention whatsoever, appertaining to or useful in making what is known as the “ Anchor stitch seam ” or appertaining to “Anchor sewing machine trimming and holding device,” and under any such invention now or hereafter during the continuance of this agreement made by said Satterlee Arnold, to make, use and sell any and all kinds of knit shirts or drawers known as “ men’s, women’s and children’s underware,” with the Anchor-stitch seam or Anchor sewing machine trimming, and also to license others so to do. In consideration of which grant the party of the second part thereby covenanted and agreed to pay to the party of the first part, as royalty for and on account of the rights and privileges, certain sums of money on all shirts and drawers upon which said inventions, or either of them, should be used, such royalties to become due and to be paid as therein provided, guaranteeing that said royalties should amount to the average sum of $1,000 per month in every twelve months from and after the 1st day of January, 1883. The party of the first part further covenanted and agreed to furnish the party of the second part, at a reasonable price, as many Anchor sewing machines and appurtenances as the* party of the second part should désire.

      That such agreement was made, executed and delivered by tlie defendant after trial and experiment by the defendant of the capacity and operativeness of tlie machines referred to in tlie answer herein, and known lierein as the Anclior sewing machine No. 1.
    That tlie trial and experiment of said machines so made by tlie defendant was ample to enable said defendant practically to determine the number of stitches made by said machines per minute, and whether said machines “skipped” stitches or “puckered,” and generally to determine the durability, capacity and operativeness of said machines; and
    That said contract was made, executed and delivered by said defendant to said plaintiff without any inducement by any false or fraudulent representations made by said plaintiff or lier agents in respect to the capacity or operativeness of the said Anchor sewing machine No. 1.

      Walter J). Edmonds and John Hunter, Jr., for the appellant. ■

      Blackwell Bros., for the respondent.
   Pratt, J. :

The question of fact upon which this action depends, was properly determined at Special Term.

The opinion there delivered, is fully sustained by the evidence. "We have examined the numerous exceptions and find none that require discussion.

The judgment should be affirmed, with costs.

Dykman, J., concurred.

Order modified.

Order to be settled by Pratt, J.

       Cullen, J.:
      Mr. Edmonds, I don’t think your client is entitled to relief in this case. How, take this in its broadest aspect, and just see.
      In the first place, you take the undisputed facts in this case. This man brought a seam to you. How, the court has seen, what you have produced as a sample of a similar seam, and it appears to be conceded by everybody that it is an excellent seam. How he is asked, “did you produce that by a machine?” “Yes.” There is no fraud in that. He has made the machine. He gives it to you. That the machine that he produced before you would make the stitch is undisputed; because, anyway, the first thing you would ask a man is, “if you have got a seam, let me see the machine which made it.” And so a boy in a store for two years would do.
      He brought this machine to you. How, he didn’t pretend that he had any other machine. These were the machines which had done that .work. He gave them to you, and you had them for a year. How, I can’t believe — all your arguments to the contrary, Mr. Edmonds — that long before the exuiration of that year your company was not fully aware of the defects as well as the advantages . of that present machine. Yours was an old company. From the fact that they had been in business so long the court must assume that they were a fairly successful company; and to be fairly successful in these times of sharp competition means business run with heads and brains; and I must believe that your people had just as much wit about an application for an invention of this kind as you would if a man had come and offered to sell you some peculiar, new kind of wool to put in your garments. Of course, the court does not suppose that you had the technical knowledge of the sewing machines in your business such as this man Arnold had; and if he had deceived you on a thing connected with that, the court might and would have granted you relief. But that is not the case. The fact was this. We take the machine as you state it. There is a machine which produces a stitch which is as good a stitch as could be wanted. The trouble is that it won’t produce that stitch quick enough to make it pay for you to do it. I won’t go over the old argument. Iiow slowly that ran you knew just as well as he did, from actual experience. You knew that anything he told you about what lie could do in the future was matter merely of opinion, because he could not have had the practical knowledge. He had never made such amachine. I agree with you, if there were something mechanical, so apparent that any mechanic might have known it — involving a question like the strength of iron, that a layman might be ignorant of —• he might have deceived you. But this was plainly nothing of that kind. He said that he could make them go faster, according to your account. Now, that could not be a fraud. It must only be a matter of expectation. You knew he never had made one ; otherwise he would have given you the machine that went faster. It was simply a statement of what he hoped to do. He admits that. Now, you have that agreement for six months; that enables you to cut that off. You gave him a part of the profit. You chose to change that into this other agreement. Now, the court cannot believe it took 180 — how many years was this to run ?
      Mr. Edmonds. — -Seventeen years.
      The Court.— At $13,000 a year?
      Mr. Edmonds. — Yes.
      The Court.— Well, it took over $300,000. Now, the court can’t believe but that you used some wit, some business ability about such a thing, and the fact must have been that, whatever the subsequent facts proved to be, you people must have believed that a machine of that kind was a thing which would turn out profitably. Whether it turned out profitably did not depend alone on the machine. It depended on how the market would take the product. Now, it has turned out that it .has not been profitable, but what was the cause I do not know. That this plaintiff’s husband could have made the representation that you set up in answer, that it would be commercially profitable, cannot be the fact. What would be commercially profitable would depend upon the trade.
      Now, this machine has been made, and you have abandoned it. What the reason is does not appear. You say that it is because it would not do any of the work. The court cannot believe that that is the only reason ; because after you had had that for a year, when you had had this optional agreement for six months, you never would have taken the risk of tying-yourselves up unless you had believed at that time that those goods would pajr.
      Now, it has turned out the same way as with other people who make speculations and fail on them, who have judgment. It has turned out that you cannot make the goods on that, or that the goods you make don’t give you sufficient price, compared to other goods, to make a profit. Whether it is that the market don’t take them, and you were mistaken in your j udgment when you thought you had such a good thing, I cannot tell. I am very clear it did not come from the defect of the machine. And the same way, as the court has already told you, if you have those eighty machines, if they were running for six or eight months, j-ou would have sent those back, and your correspondence would be filled with the upbraiding of that man for sending a machine which had been defective. And yet you took them.
      Now, I can believe that you have got there the machine which you supposed at the time was going to be a good and profitable machine, and that he made some representations about it; I have no' doubt that he said it was a good thing, that it was the best invention made, and would revolutionize the trade — probably all those things, and more. The rule is plain that simple commendation does not constitute fraud. A dealer may puff his wares, though he must not lie about them. But I cannot see that there was any statement of fact, or any statement which could be construed as a statement of fact even if it was a matter which could be termed opinion, if it was an existing tiling, that he made at that time, which was false. I cannot believe that you ever relied on any statement about the conditions of that machine, and went and made this contract. I don’t believe that he made even those promises that they should go so much faster; because if lie did, as I say, you would not have taken them when you knew that a machine of 300 was worth nothing. You would have said : ‘ ‘ Make me a machine of a 1,000, and then we will make the contract.” I don’t believe that, also, because you would have sent the machines hack.
      So much for the character of the machine. Now, you come to another set of facts, and that is as to the representations as to the state of his patent. Now, while a man may puff his goods, a man must not tell falsehoods to' induce others to buy them. But did this man tell a falsehood ? Did you act on it ? Did you rely on it ? If I found he had told material falsehoods, it would not take very much evidence to make me believe that you had acted on it, for I am not in favor of fraud in these times. But did lie ?
      Now, this agreement was very loosely drawn. He does not bind himself to get any particular patents. It is very evident, though, and I find the fact, that it did relate to this anchor stitch. He talked with Mr. Letsen. This letter is produced. I think it is clear as anything can be, from the tone and character of that letter, Mr. Edmonds, that that letter was not meant to be shown to a board of directors ; that that was the very letter that a man 'would write in the ordinary course. It would be very likely, if he intended it for the board, that he would commence: “Mr. Letsen, for the sake of your directors, whom it is to be put before, my proposition is stated.” Now, look at that letter. If this was to the board of directors — the very terms of the agreement are not agreed upon. He says: “Now it is your turn to suggest amendments.” You have not fixed on the terms of the agreement. So with the whole context of that letter. Unless you imagine a man with'ingenuity and genius which would be marvelous, having preconceived this scheme of fraud from the beginning, and, therefore, written a letter not to look like it, that letter was never written to be shown to a directors’ meeting at all. Now, Mr. Letsen and this man must have talked together very often about it. It is very evident, really, from this. It is plain that this gentleman, Mr. Carpender, is not entirely memory-clear. His memory has been refreshed from time to time. He may be very wrong, and honestly, wrong, on a transaction nine years ago. But when you come to set aside, on the ground of fraud, a contract that has been lived up'to, the evidence ought to be plainer than it is.
      Now, I think this letter solely applies to the two-stitch patent, and not to the three, and there is nothing there to show that it was otherwise. If he wanted to put it to a board of directors, so that the board of directors would examine them, would n’t this have put them right on their guard — the opinion which he quoted ? The fact was that the board of directors was Mr. Johnson Letsen. This thing was done by Mr. Johnson Letsen himself, and if the board of directors had been active persons, one of them would have inquired: “ What does this mean —there may be a fight there?” Now, I cannot believe anything of the kind. I must believe that Mr. Johnson Letsen knew, from lime to time, tlie condition of these patents. He lived till 1884. Until that time, he.knew everything that this man had told and been told. If the machines were furnished in 1888, nothing had come out about the patents. But the fact is, as how these machines were working, lie was tlie man, at any time, to have put an end to that contraer, and would have done it in his lifetime -if this man had told him a falsehood.
      There is another thing. Your people don’t think they are defrauded themselves. He gave an interest to Ashwell, who has been sitting here with them. If, as you have said (and I don’t say it is not subject to that criticism), Arnold sought to interest him in the machine and get you to take it, and you have been defiauded into a contract of nearly §200,000 or more, there is a man who you claim should have been loyal to you, who helps impose this fraud upon you, and yet you keep him there and pay him. If he were the best salesman in his department, you wouldn’t have him.
      Now, this is an unfortunate speculation for this company, but it is not the only unfortunate speculation which people go into. One of your witnesses told the whole story as well as it could be told. He said: “ This is just like perpetual motion. People are always just about to get it.” It has proved an unfortunate speculation, but I find that there is no evidence of fraud here in this case.
      I should have preferred to have formulated my views in writing. But the time is so short that, as I have to go away, and I want to leave time enough for you gentlemen to present your requests to find, I have preferred to do it at this stage.


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    Norfolk and New Brunswick Hosiery Company, Respondent, v. Anna M. Arnold, Appellant.

      Vexatious action — order restraining its prosecution.

    A person in bringing suit upon a contract declared to be valid cannot be said to be acting vexatiously or oppressively; on tlie contrary, he is availing himself of a clear legal right.
    An order should not be granted, which restrains a person from prosecuting a certain action, and from bringing any subsequent action, to enforce a contract adjudged to be valid.
    Appeal by tlie defendant, Anna M. Arnold, from an order of the Supreme Court, made at the "Westchester County Special Term and entered in tlie office of tlie clerk of the county of Queens on the 24th day of October, 1893, enjoining, the- defendant from taking any further proceedings in a certain action brought by her against the plaintiff, or from bringing any other action against it to enforce a certain contract during the pendency of this action.

      Frank F. Blackwell, for the appellant.

      Walter J). Edmonds and John Hunter, Jr., for the respondent.
   Pratt, J.:

Defendant Arnold has recovered in this court a judgment against this plaintiff upon several installments of a continuous contract, from which judgment an appeal is pending.

Since the first action was begun further installments have become due, to recover which this defendant brings an action in New York Common Pleas.

The plaintiff now brings this suit, praying that defendant he restrained. from prosecuting the action iii the New York Common Pleas, and from bringing any subsequent action to enforce tlie contract.

Tlie effect of tlie judgment recovered was to establish tlie validity of the contract. Tlie affirmative relief against it, sought in the first action by the present plaintiff, having been denied, and the contract declared valid, the court could not in that action have restrained 'the successful party from proceeding to enforce the contract. (Spears v. Mathews, 66 N. Y. 127.) We are at loss to see that the court has in the present action any better right to restrain the successful party from exercising the rights to which it has been declared entitled than it had in the previous action. (Waring v. Yale, 1 Hun, 492.)

This defendant in bringing suit upon a contract declared to be valid, cannot be said to be acting vexatiously or oppressively; on the contrary, she is availing herself of a clear legal right.

Cushman v. Leland (93 N. Y. 652) does not afford authority for this action. There a trustee in a mortgage to secure a general issue of bonds brought an action to foreclose the mortgage. The holder of one of the bonds, who was a party to the first action, and had therein set up his rights and submitted them to the court, was restrained from prosecuting a separate action for his individual benefit. This was a clear case of a multiplicity of suits.

The prosecution of the individual action was in no sense requisite to protect the plaintiff’s rights, which could be fully protected in the action brought by the trustee.

The order granting an injunction must be reversed, with costs.

Present — Pratt and Cullen, JJ.

Judgment affirmed, with costs.


author: Cullen, J.:

text:
    Henry A. Root, Respondent, v. The New York and New England Railroad Company, Appellant.

      Shipping agent — •power of an agent to fix the terms of shipment — submission to the jury of a question as to his authority.

    An agent to ship has power to contract as to the terms and conditions of shipment, and it is an error requiring the reversal óf a judgment in favor of the plaintiff, in an action brought to recover the value of a horse shipped for transportation and fatally injured through the carrier’s negligence, to submit to the jury the question whether plaintiff’s shipping agent had authority to bind his principal by a contract, and to refuse to charge that such agent possessed such authority.
    Appeal by the defendant, The New York and New England Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 22d day of June, 1893, upon the verdict of a jury for $527.50 after a trial at the Putnam County Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 19th day of June, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Walter G. Anthony, for the appellant.

      Frederick S. Barnum, for the respondent.
   Cullen, J.:

This is an action to recover the value of a horse shipped for transportation by the defendant, and fatally injured, it is claimed, through defendant’s negligence. The defendant put in evidence a printed form of contract, signed, not by the plaintiff, but by one Cornue, the shipper, by which it was contended that the defendant was released from liability, except for gross negligence, and that the amount of recovery for the value of the horse was limited to one hundred dollars ($100).

We think that the motion for a nonsuit was properly denied. The evidence was sufficient to justify the submission of defendant’s negligence, and the plaintiff’s freedom from fault, to the jury, and that there was also sufficient evidence as to the circumstances attending tlie execution of a contract to submit to tlie jury tlie question whether it bound the plaintiff. But the court also submitted to the jury the authority of Cornue to bind the plaintiff by his contract of shipment, and refused to charge that he possessed such authority. This was erroneous. An agent to ship lias power to contract as to the terms and conditions of shipment. (Shelton v. Merchants’ Dispatch Trans. Co., 59 N. Y. 258; Nelson v. Hudson River Railroad Company, 48 id. 498.)

For this error tlie judgment must be reversed.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment and order denying new trial reversed and new trial ordered, with costs to abide the event.


text:
    Mary A. Walsh, Respondent, v. The Brooklyn Elevated Railroad Company and Another, Appellants.

      Damages to real estate from an derated railroad —error in failing to find that certain easements icere of hut a 'nominal ralue — rule of damages.

    From tlie evidence introduced upon the trial of an action brought to recover damages to property by reason of the construction and operation of an elevated railroad, the trial court should have found that the plaintiff's easements in a certain street, of light, air and access, were, of themselves, of only nominal value. The court failed to so find, but suc.li failure in no way affected the judgment rendered for the plaintiff, and the court did find, as a matter of fact, that the abutting premises were worth a certain amount less than they would have been had the plaintiff’s easements not been taken; a judgment was given for such amount, and no award was made for the easements.

      Held, that the correct rule of damages was applied, and the judgment should not be disturbed. - .
    Appeal by the defendants, Tlie Brooklyn Elevated Railroad Company and another, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of tlie county of Kings oil tlie 8th day of April, 1893, rendered upon tlie decision of tlie court after a trial at tlie Kings County Special Term.
    This action was brought to recover past and fee damages alleged' to have been caused to certain real estate belonging to the plaintiff by reason of tlie construction and operation of tbe defendants’ elevated railroad.

      Wm. W. Cohen, for tlie appellants.

      8tej)hen M. Hoye and Enmois Bttssell Whitney, for tlie respondent.
   Cullen, J.:

This is an appeal from a judgment awarding plaintiff an injunction unless the defendants pay $500 for damages to the fee of plaintiff’s property.

Under the decisions of the Court of Appeals the trial court should have found that plaintiff’s easements in the street, of light, air and access, were in themselves only of nominal value. (Bookman v. N. Y. Elevated R. R. Co., 137 N. Y. 302.)

But the failure to so find in no wise affected the judgment. The court found as a matter of fact that the abutting premises were worth $500 less than they would have been had plaintiff’s easements not been taken. This was tlie correct rule of damage. For that $500 judgment was given, and no award was made for the easements in themselves.

There was evidence which justifies tlie finding, and it should not be disturbed.

The judgment appealed from should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    George H. Maynard, Appellant, v. Angeline Vanderwerker, Respondent.

      Decision of the trial court — token reversed upon the facts.

    The facts and circumstances considered and commented upon which necessitate the reversal of tlie decision reached by a trial court, upon the question whether or not the defendant was made a beneficiary of a certain certificate under an agreement that it should be issued to her, and that she should thereafter pay all assessments levied thereon. (Cullen, J., dissenting.)

      Appeal by tlie plaintiff, George II. Maynard, from a judgment of tlie Supreme Court in favor of tlie defendant, entered in the office of the clerk of. tlie county of Kings on tlie 2d day of August, 1893, upon the decision of the court rendered at the Kings County Special Term, dismissing the plaintiff's complaint upon tlie merits.

      Sidney Williams and 1£. B. Barmom, for the appellant.

      Thomas E. Pearsall, for the respondent.
   Pratt, J. :

This case was decided at Special Term clearly in accordance with an overwhelming weight of evidence upon all tlie issues except one, to wit, whether or not tlie defendant was made a beneficiary of the certificate in question under an agreement that it should be issued to her, and she should thereafter pay all the assessments levied thereon.

It is not without much hesitation that I am constrained to disagree with the conclusion reached by the learned judge who tried the the case with the greatest care and circumspection, Avitli the advantage of seeing the witnesses and hearing them testify ; but a careful reading of the evidence lias impressed me so strongly, that upon the one issue above stated the decided weight of eAddence is so much against the contention of the defendant, that I feel constrained to write for a reversal.

Nay, more; I am of opinion that this defense is an afterthought born of a failure to make out any case on the ground of incapacity, fraud or undue influence.

In the first place, there is no sufficient evidence that such an agreement was ever made. The principal witness for defendant upon this point is her husband avIio is interested in the result, but he fails to testify to any agreement; besides, what he did say Avas made to appear unreasonable and incredible on a cross-examination, lie nowhere states that the defendant agreed to accept the policy or pay the assessments.

A Mrs. Tams is tlie next Avitness in importance. She testifies to nothing as regards such a contract except to certain alleged declarations made by Ray Smalley, the insured, before she was married to the plaintiff.

The only matter testified to by Mrs. Tams which looks like an agreement, is the statement that Ray said “ My aunt agreed Avlien I insured to pay the assessments, and I agreed that it should always be hers.”

It is to be observed that this is evidence of declarations given long after they were made, which: should always be scrutinized with great care. For my part I do not believe that Ray Smalley ever made such a declaration. It is unreasonable that such an agreement, would be entered into by a person of years with a young person like Ray Smalley, but what makes it • more unreasonable is that it is inconsistent with the whole conduct of all the parties. Besides, the cross-examination of this witness showed either that her story was unreasonable or her memory sadly at fault.

The most charitable construction which, in view of all the circumstances, can be placed upon her testimony, is that she has talked so-much about this matter with the defendant and others that she liasgot matters mixed in her mind.

But the evidence, I think, plainly shows that the defendant never paid any assessments on this policy, and never had rightful possession of it after the marriage of Ray Smalley; it is even doubtful if she ever had it before that time. Here the husband of defendant again says that upon one occasion he saw his wife hand Ray some money to pay an assessment. That might have been a loan, as the balance-of the conversation was not given, but what stamps this assessment, theory is the fact that on one occasion, in the presence of Mm Livingston, a disinterested witness, Ray asked- the defendant to lend her a small sum to make up enough to pay an assessment; the defendant did so, and said : I will lend it to you, be sure and pay me back,” which is utterly inconsistent with the' theory that she was paying the assessments.

There is not a scintilla of proof by any officer of the company* nor by a receipt, that defendant ever paid an assessment, except one-receipt, which was proved to be a forgery.

The fact that defendant had a few receipts was exjilained by the fact that Ray kept them in her trunk or box, which was left at the house’ of defendant, to which she had access, and the contents of which she admits she took possession.

Neither do I think there is much doubt that the defendant took the policy from the trunk, and afterwards stated to Ray that it had been lost. Ray Smalley certainly wanted it in order to effect a transfer to her husband, and went to defendant, who told her it was lost, which was untrue as proved by the declarations of the defendant to Mrs. Livingston. The whole conduct of defendant is inconsistent with her claim. If there was such an agreement and she had paid the assessments, would she have told Ray Smalley it was lost ? Would she not rather have told her that she had it and owned it by virtue of the agreement?

Again, the conversation with Mrs. Livingston is remarkable; she does not say I took it out of the trunk because it was mine, or because she had agreed to pay assessments on it, but she gives as a reason that it was made out in her name.”

It is to be noticed that at no time during the life of the insured did the defendant lay any claim to the policy. There cannot be any doubt of the policy being taken from the trunk, as two disinterested witnesses testify to defendant’s admissions in regard to it.

Again, in writing to the supreme secretary stating her claim, after ■she had time to consider all the matters, she writes, Mr. Maynard could have had the policy at any time if he desired.” Also, in a conversation with Mr. Livingston a short time before the trial, she stated “ That if Ray or Mr. Maynard had asked me for the certificate I would have given it to them willingly.”

Are these statements at all reconcilable with her claim of absolute ■ownership? Further, can there be any doubt that Ray did call ■on her for the certificate in order to make the change, and was told it was lost, and, on the strength of that statement, made oath of its loss to effect the transfer ?

It is a significant fact- that the claim of a vested interest in the ■certificate appears for the first time in the amended answer. In the whole history of the case no claim is made of vested ownership by defendant until this amended answer is filed, although it was asserted in an affidavit and letter that she had paid some assessments, but not that she had ever agreed to pay assessments.

It is clear that she paid no assessments after the marriage, and there is no proof worthy of belief that she paid any before that event.

In writing this opinion I have assumed that the evidence of Mrs. Tams and defendant’s husband of the declarations of Ray Smalley were competent to prove the contention of defendant, but it is in tlie nature of the declarations of an assignor after an assignment to impeach the title of a subsecpient assignee from the same assignor. Assuming, however, that this evidence was properly admitted and considered, I think that the case on the part of the defendant utterly fails.

Much might be said of the contradiction and inconsistencies of the evidence offered by defendant, but enough has been said to show the effect the evidence has had upon my mind. It may be added, however, that the fact that plaintiff became the beneficiary'in good faith and supposed he ivas rightfully vested with such interest is-shown by his changing his policies in favor of his wife, the deceased.

Tlie judgment must be reversed and a new trial granted, costs to abide the event.

Dyicman, J'., concurred; Cullen, J., dissented.

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


text:
    Mary Wiley, an Infant, by John Wiley, her Guardian ad litem, Appellant, v. The Long Island Railroad Company, Respondent.

      Beciew of judgment of nonsuit — when negligence of a railroad company is shown — when contributory negligence is not established — inference that a child is non sui juris.

    Upon tlie review of a judgment of nonsuit tlie appellant has the right to have-the testimony regarded in the light most favorable to him.
    Upon the trial of an action brought to recover the damages resulting from personal injuries sustained by reason of the alleged negligence of a railroad company, it was shown that the defendant’s train was backed towards the public crossing without a brakeman at the rear, and without notice by bell or whistle; that the flagman or gate-tender was absent from his post, and the position of tlie gates, if not an invitation to pedestrians to cross, was, at least, ambiguous.

      Held, that the negligence of the defendant railroad corporation was clearly shown. •
    The mother of the plaintiff, an infant, approached the crossing with care, leading1 her child by the hand. The tracks were numerous, and while she was hesitating whether or not to advance, the child broke away from her and hastened to cross the tracks.-

      Meld, that the mother was not bound to anticipate such movement on the part of the child, and she could not be said to have been negligent;
    That the question whether or not the child was sui juris, and'if she was, whether she failed to use such care as the law required from a person of her age, could not be determined where her age was not given; although, as most of the witnesses spoke of her as a little child, and as she was of an age to be led by the hand, the inference would be that she was non sui juris, in which case she was not chargeable with negligence;
    That even if she were sui juris she was not negligent, as it was a fair presumption from the testimony that her attempt to cross the track was an effort on her part to escape the threatened peril, and though such decision on her part might have been an error, even an adult is not required by law to decide wisely when an occasion calls for instant action.
    (Cullen, J., dissenting.)
    Appeal by the plaintiff, Mary Wiley, an infant, by Jobn Wiley, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of October, 1892, rendered at the Kings County Circuit, dismissing the plaintiff’s complaint, and for costs.

      M. L. Towns, for the appellant.

      W. O. Beecher, for the respondent.
   Pratt, J.:

As a nonsuit was granted, the appellant has a right to claim that the testimony be regarded in the light most favorable to the plaintiff.

It was shown that defendant’s train was backed towards the public crossing without a brakeman at the rear and without notice by bell or whistle. The flagman or gate-tender was absent from his post and the position of the gates, if not an invitation to pedestrians to cross, was, at least, ambiguous. The negligence of defendant was clearly shown.

We do not see that the infant’s mother can be said to be negligent. She approached the crossing with care, leading the child by the hand. The tracks were numerous. While she was hesitating whether or not to advance, the child broke from her and hastened to cross the track. That was not a movement the mother was bound to anticipate. Pier attention was necessarily divided between the child and the eleven tracks, upon each of which a train was liable to approach from either direction at any moment. She could not give her whole care to her hold upon the child, and the fact that for an instant her grasp loosened, does not prove negligence on her part.

The question remains whether the child was mi j'ioris, and if she was, did she fail in using such care as the law required from a person of her age? We are not able to say that she was sui juris. Her age is not given, but most of the witnesses speak of her as a little child, and she was of an age to be led by the hand. The inference would be that she was non sui juris. If so, she was not chargeable with negligence, and the nonsuit was wrong. (Huerzeler v. C. C. T. R. R. Co., 139 N. Y. 490, 494.)

If she was sui jv/ris, did she fail in the care required of her by law? We think the fair presumption from the testimony is that she saw the train before her mother did, and that her attempt to cross the track was an effort on her part ■ to escape the threatened peril. That may have been an error of judgment, but she was a child, and even an adult is not required by law to decide wisely when the occasion calls for instant action. If she used such discretion as could be expected from one of her years and acted promptly, we cannot hold her negligent.

It has been said that where one is run down by a train in broad daylight, when the view of the track is not obstructed, negligence may be predicated as a matter of law. But in this case it may not have been easy to see that the train was in motion. The revolution of the wheels is not easily seen. To one standing close to the track the position of the train was a fixed one or nearly so, and a portion of the attention must be given to each of the eleven tracks, and to both directions upon each track.

Giving due weight to the distracting circumstances, we must hold that the question whether the child exercised such care’as the law required from her should not have been taken from the jury.

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

Dykman, J., concurred; Cullen, J., dissented.

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


author:
Pratt, J.:
      Cullen, J.

text:
    United States Trust Company of New York, as Substituted Trustee, etc., Respondent, v. Philip V. R. Stanton, Appellant, Impleaded and Others.

      Mortgage foreclosure — Statute of Limitations — burden of proof— admission against interest of a payment — when the words “executors and trustees" are merely descriptive.

    In an action brought to foreclose a bond and mortgage to which the defense of the Statute of Limitations is interposed, the burden of proof is upon the plaintiff to prove that the last payment of interest was made within the time fixed by the statute.
    The admission of an obligee that a sum of money was paid as interest on a bond, when at the time at which it was made it was an admission against his interest, is competent evidence to prove the payment of such amount.
    Upon the trial of an action brought on the 10th day of October, 1887, to foreclose a bond and mortgage, the defense interposed was the Statute of Limitations. A bond ivas put in evidence upon the trial, which bore an indorsement of the payment of interest dated October 23, 1867, and a witness was called who testified that he made the indorsement on that day ; that he received the money, not from the debtor, but from the obligee, and that he had no personal knowledge of the date when the obligee received the money from the debtor, and that for all he knew the obligee might have had the money for a year. The defendant was not put upon the witness stand.

      Held, that the burden of proof was upon the plaintiff to prove that the last indorsement of interest was made later than October 10, 1867. (Cullen, J., dissenting.)
    That the evidence ivent no further than to prove that the payment was made on or previous to October 23, 1867, and was manifestly insufficient to remove the bar of the Statute of Limitations. (Cullen, J., dissenting.)
    That if any presumption ought to be indulged as to the time of payment it would be presumed that the interest ivas paid when due. (Cullen, J., dissenting.)
    That no presumption could be indulged in against the defendant because of - his failure to testify in his oivn behalf.
    The complaint in such action alleged that the bond and mortgage were executed to Leveridge and Duryea, “ executors of the last will and testament of Bowne, and trustees appointed in and by his last will,” and that the plaintiff had been appointed trustee under the will of Bowne in place of Leveridge, deceased; and that by such appointment the bond and mortgage passed to the plaintiff. There was no allegation that the bond and mortgage were assets of the estate of Bowne, and no allegation that such will established any trust of personal property.

      Held, that the words “executors and trustees,” were only descriptive of the person;
    That the complaint failed to state a cause of action. (Cullen, J., dissenting.)

      Appeal by the defendant, Philip Y. R. Stanton from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of October, 1893, rendered upon the decision of the court after a trial at the Kings County Special Term.
    This action was brought October 10,1881, to foreclose a mortgage. The answer pleaded the Statute of Limitations and alleged that the bond and mortgage affected property of John Leveridge and liarmanus B. Duryea, and was not a part of the estate of Gilbert W. Bowne, deceased. It denied that any amount was due and unpaid upon the mortgage, and further alleged that the'action was not prosecuted in the name of the real party in interest, and set up a counterclaim.

      Josiah T. Marean, for the appellant.

      Edwcvrd W. Sheldon, for the respondent.
   Pratt, J.:

The burden was upon plaintiff to prove that the last indorsement of interest was made later than October, 1861. Por that purpose was put in evidence the bond, which bore an indorsement dated October 23, 1861, and a witness was called who testified that he made the indorsement on that date. Further examined, he testified that he received the money, not from the debtor in the bond, but from the obligee, and that he had no personal knowledge of the date when the obligee received the money from the debtor.

Upon the question being put to the witness whether the obligee may not, at that time, have had the money for a month, he answers “ he may have had it for a year for what I know.”

The admission of the obligee that the eighty-seven dollars interest was paid, was at that time against his interest, and is, therefore, competent evidence to prove the payment.

Whether a statement of the obligee as to the time of payment, not being against interest, could be put in evidence, is a different question, but no such statement was made.

We are at loss to see that the proof goes any farther than to prove that the payment was made at some time on or previous to October 23,1867. That is manifestly insufficient to prove the bar of the Statute.

The interest was due on May 1, 1867, and if any presumption can be indulged in as to the time of payment, it is probable that payment was made when due.

The court below felt the weight of these considerations, but, on the ground that the defendant did not personally offer to testify, gave judgment for plaintiff. We think this was error. If plaintiff desired defendant’s testimony it should have called him. Where a transaction is so ancient a witness whose professional experience must have taught him the imperfection of human memory, may well hesitate to offer himself as a witness in his own behalf. We do not see that any presumption should from that be drawn against him.

The court below seemed to consider that the burden was on defendant to prove the payment was not within twenty years. We think that was error.

The complaint alleges that the bond and mortgage were executed by plaintiff to Leveridge and Duryea, “ executors of the last will and testament of Bowne, and trustees appointed in and by his last will.”

It further alleges that plaintiff has been appointed trustee under the will of Bowne in place of Leveridge, deceased, and the conclusion of law is alleged that by the appointment the bond and mortgage passed to the plaintiff.

There is no allegation that the bond and mortgage were an asset of the estate of Bowne. The words “executors and trustees” are only descriptive of the person. There is no allegation that the will established any trust of personal property.

The complaint, therefore, failed to state a cause of action in the plaintiff, and the motion made at the opening of the trial to dismiss the complaint should have been granted.

The judgment must be reversed, .and as the cause, for reasons which have abiindantly appeared on the former trials, is not one in which an amendment of the complaint should be granted, final judgment must be given for defendant, with costs.

Dykman, J., concurred.

Cullen, J.

(dissenting):

This is an appeal from a judgment of the Special Term for the foreclosure of a mortgage.

The complaint sufficiently averred title in the plaintiff. It alleged that the bond and mortgage in suit passed to the,plaintiff as part of the estate of Gilbert W. Bowne under the order of the court appointing plaintiff trustee. The bond ran to Beveridge and Duryea, “ executors of the last will and testament of Gilbert W. Bowne, deceased, and trustees appointed in and by said will,” conditioned for payment to said Beveridge and Duryea and the survivor- of them, their or his successors in office or assigns. Granting that the omission of the word “ as ” in the first portion of the instrument made tlie terms “executors and trustees” standing by themselves mere descriptive persones, the condition of the bond that the payment was to be made to Beveridge and Duryea, their survivors and successors in office, clearly shows that the obligation ran to them in their representative capacity. (People v. Miner, 37 Barb. 466; Beers v. Simmon, 73 N. Y. 292.) The mortgage is of the same tenor. The case is, therefore, plainly to be distinguished from that' of Peck v. Mallams (10 N. Y. 509).

It is conceded that the indorsement on the bond of the payment of interest was primeo facie sufficient to take the claim out of the Statute of Bimitations. But it is.said that in this case the indorsement has no probative effect because it appears from the testimony of the person -who made it that the check or money was received from one of the trustees who might have obtained it time enough before the making of the indorsement to bar the mortgage by the statute. That trustee is dead, the transaction is over twenty-five years old, and the witness who was the clerk and accountant of the trustee naturally cannot recall the details of the payment. We think the presumption is that the payment was made at the time of the entry, especially in the absence of any evidence to the contrary on the part of the defendant.

The judgment appealed from should be affirmed, with costs.

Judgment reversed and final judgment directed in favor' of defendant, with costs.


text:
    In the Matter of the Judicial Settlement of the Account of Thomas J. Ritch, Jr., as Administrator, etc., of Nathaniel O. Hauxhurst, Deceased.

      Appeal by an administrator — when justifiable — reasonable disbursements made therefor must be allowed.

    When the questions raised in an action are sufficiently doubtful to warrant the hope that a judgment recovered against an estate may be reversed, and when all the next of kin, other than the judgment creditor, urge an appeal from, such judgment, the administrator of the e.state is justified in taking an appeal therefrom, and upon his accounting should be allowed his reasonable disbursements connected therewith.
    Appeal by the administrator, Thomas J. Ritch, Jr., from portions of a decree of the Surrogate’s Court of Queens county, made on the 31st day of October, 1893, and entered in the office of the cleric of the Queens County Surrogate’s Court, judicially settling his accounts as administrator with the will annexed of the goods, chattels and credits of Nathaniel O. Hauxkurst, deceased.

      Geo. O. Brainerd, for the appellant.

      Benjamin W. Downing, for the respondent.
   Pratt, J. :

This matter seems to have been determined by the surrogate, not upon the ground that the services for which the $200 were charged were not performed, or that they were not worth that amount, but. upon the theory that no appeal ought to have been taken, and hence that they were unnecessary.

It is plain, I think, that if the decision was based upon the point the services were not worth the amount charged, it is not sustained by the proofs, as there is no evidence going to show that they were.worth less than charged, neither is there any direct proof that they were incurred in bad faith.

The surrogate, however, has found as a fact “ that all said next of' kin (except the plaintiff who had recovered the judgment) then united in a request and a statement that said administrator have the said, judgment reviewed by other tribunals.”

Here was a judgment that swept away the entire estate, and it is not to be supposed for an instant that a clamerous judgment creditor would favor an appeal that might upset his judgment.

The questions raised upon the appeal were sufficiently doubtful to warrant a hope that the judgment might be reversed. Considering this fact, and the further fact that all the next of kin urged an appeal, we think the administrator acted in good faith; that he had reasonable grounds upon which to appeal, and should be allowed his reasonable disbursements.

The order must be reversed, with costs.

Cullen and Dykman, JJ., concurred.

Order reversed, with costs.


text:
    Coe H. Ten Eyck, Respondent, v. George W. Sayer and Others, Appellants.

      Dissolution of an injunction — damages properly recover alie on an undertaking.

    A defendant -who has been successful in obtaining the dissolution of an injunction is entitled to recover on the undertaking his damages resulting therefrom, and his reasonable counsel fees and expenses for obtaining the dissolution thereof.
    “Where an injunction restrained a defendant from preventing the closing and opening of a swing bridge on a public highway, which necessitated the employment of a man to open and close the bridge, the wages of the bridge tender during the continuance of the injunction should be allowed as a part of the defendant’s damages.
    Appeal by the defendants, George AY Sayer and others, from that portion of an order, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Orange on the 13th day of November, 1893, which disallows certain items claimed as damages, sustained by the defendants, on an undertaking given upon the granting of an injunction.

      Bacon <& Merritt, for the appellants.

      James Parher, for the respondent.
   Cullen, J.:

This is an appeal by defendants from an order of the Special Term assessing their damages, by reason of an injunction,, at ninety-four dollars.

The injunction restrained defendant from preventing the closing and opening of a swing bridge on a public highway. This necessitated the employment of a man to open and close the bridge. The wages of the bridge tender during the continuance of the injunction, twenty-eight- dollars, should have been allowed.

The defendants having been successful in obtaining a dissolution of the injunction, their reasonable counsel fees and expenses for that purpose were properly recovered on the undertaking. (Hovey v. Rubber-Tip Pencil Co., 50 N. Y. 335; Andrews y. Glenville Woolen Co., Id. 282.)

In the fact that they succeeded in the motion to dissolve lies the difference between this case and that of Randall v. Carpenter (88 N. Y. 293). The Special Term having allowed such damages, the-only question is whethér it fixed the amount at too small, a sum. We think it did. The action was important; the case involved substantial questions of law and fact, and the affidavits were voluminous. On the evidence an allowance of $100 for the services of Mr. Bacon in preparing for and arguing the motion to continue the. injunction would be entirely moderate. An allowance of twenty-five dollars should also be made for similar services by his associate. The other charges of counsel seem fairly to relate to the general •conduct of the action.

The order appealed from should be modified by increasing the amount awarded defendants by $103, with ten dollars costs and disbursements to appellants.

Pratt and Dykman, JJ., concurred.

Order modified by increasing the amount awarded the defendants, by $103, with ten dollars costs and disbursements.


author: Cullen, J.: Dykman, J.:

text:
    William S. Forbes, Respondent, v. Rachel L. Kennedy, as Executrix, etc., of Robert Lenox Kennedy, Appellant.

      Professional services — quantum meruit — payment by a patient to Ms physician — applied in reductioji of the physician’s claim.

    Where tliere is no specific agreement as to the compensation of a physician, in an action brought to recover the value of his services, he must recover, if at all, upon a quantum meruit.

    A physician presented a claim against a decedent’s estate for §5,000 for professional services alleged to have been rendered, and upon the trial of the action brought to recover the amount thereof, it was conceded that the decedent gave the plaintiff £200 by a letter of credit. There was no evidence that such services were worth §5,000 over and above the expenses of the physician, nor of any usage or custom that the patient should pay the physician’s expenses, nor of the amount of such expenses'.

      Held, that the £200 should be applied towards the reduction of the plaintiff’s claim.
    Appeal by the defendant, Rachel L. Kennedy, as executrix, etc., of Robert Lenox Kennedy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of October, 1893, upon the report of a referee, and also from an order entered in said clerk’s office on the 25th day of September, 1893, confirming the report of the referee and denying the defendant’s motion to set aside the same.

      Walter Edwards, for the appellant.

      Geo. A. Strong, for the respondent.
   Cullen, J.:

This is an appeal from a judgment entered upon the report of a referee on a disputed claim against the estate of a deceased person. The report was confirmed at Special Term.

When this case was before the court on a prior appeal we -were of opinion that there was no evidence sufficient to make out the plaintiff’s case. Our judgment was reversed by the Court of Appeals (Forbes v. Chicester, 125 N. Y. 769), where it was held that the evidence was sufficient to require a court or jury to pass upon the question of fact. Accepting this decision, that the question of fact as to the claimant’s employment as a physician by the .deceased was fairly presented by the evidence, we cannot say that the referee erred in deciding that question in favor of the claimant. The case had to be proven by circumstantial evidence, and our prior decision was not based on our disbelief of any employment, but on what we deemed the insufficiency of the evidence legally to establish that fact.

The referee found that there was no specific agreement as to compensation. The plaintiff, therefore, must recover on a quantum meruit. The referee has found that the claimant’s services were rendered on the implied promise by the deceased to bear all the expenses, and to pay what the services were fairly and reasonably worth. The value was found to be $5,000. This sum seems to us large, considering the plaintiff’s ordinary professional income, but as it was the value testified to by the witnesses for the plaintiff, and no evidence was given to controvert it, the finding in this respect must stand. But we can find no evidence in the case that the services were worth this sum over and above the expenses of the plaintiff, and no proof of any usage or custom that the patient should pay the physician’s expenses. There is no proof of what the expenses of the plaintiff were. Certainly the expenditures made by the plaintiff and his wife in traveling apart from the deceased, could not be fairly termed expenses of the plaintiff’s employment. It is conceded that the deceased gave plaintiff £200 by a letter of credit. We cannot see why, in any aspect of the case, the defendant should not have credit for this sum.

We think the judgment must be reversed and a new trial had, unless the plaintiff stipulates to reduce the judgment by the equivalent of £200, with interest, in which case the judgment is affirmed, without costs of this appeal to either party.

Pratt, J., concurred.

Dykman, J.:

I am in favor of a new trial unconditionally.

Judgment reversed and new trial granted, with costs to abide the event, unless plaintiff stipulates to deduct £200, with interest, from the judgment, in which case the judgment is affirmed, without costs on this appeal.


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    Sarah M. Jackson, by Guardian, etc., Respondent, v. Pierre M. Brown, Appellant.

      Action for conversion — when a release, obtained by fraud, may be rescinded by an infant without restoration — when restoration unnecessary by an adult.

    Upon the trial of an action for conversion, wherein a release was pleaded as a defense, the plaintiff offered to prove that the release had been procured by fraud; the court excluded the proof on the ground that fraud was not stated in the pleading, and directed a verdict for the defendant. Upon motion a new trial was granted.

      Held, that the court erred on the trial in excluding the proof of fraud, and properly granted a new trial;
    That the plaintiff being an infant might, upon showing her inability to make restoration, rescind the release without restoration;
    That she would be bound to show affirmatively a case which entitled her to rescind, without restoration, but the evidence of fraud having been excluded upon the ground that it was not pleaded, it was unnecessary for her to make further offer of proof;
    That if she should establish fraud in procuring the execution of the release in ■ that it was represented to her to be a mere receipt, it would not be necessary for her to make restoration, even if an adult.
    Appeal by the defendant, Pierre M. Brown, from a judgment for costs of tlie County Conrt of Queens county in favor of tlie defendant, entered in the office of tlie clerk of tlie county of Queens on tlie 13tli day of March, 1893, rendered upon tlie verdict of a jury by direction of tlie court, and also from an order made on tlie 1st day of April, 1893, and entered in said clerk’s office, granting tlie plaintiff’s motion for a new trial.

      A. A. Gardner•, for tlie appellant.

      J£ Gompton, for tlie respondent.
   Cullen, J.:

This is an appeal from an order of the County Conrt granting a new trial. The action was for conversion; the defendant pleaded a release. Plaintiff offered to prove that tlie release bad been procured by fraud. Tlie conrt excluded tlie jiroof on tlie ground tliat fraud was not set up in tbe pleadings, and directed a verdict for tlie defendant. On motion of tlie plaintiff the court granted a new trial.

We tliink that tlie court erred on the trial in excluding the proof of fraud and properly granted a new trial. Concededly it erred in tlie ground upon which it excluded 'tlie testimony. But the defendant contended on the trial, and now contends, that the evidence should have been excluded because the consideration for the release had not been returned or offered to him before the action was begun. This contention we think erroneous. Being an infant the plaintiff might, upon showing her inability to make restoration, rescind the release without restoration. (Green v. Green, 69 N. Y. 553.)

It was true that she would be bound to show affirmatively a case which entitled her to rescind without restoration, but the court having excluded the evidence of fraud upon the ground that it was not pleaded, it was not necessary for her to make further offers of proof. The ruling made, if correct, was fatal to her case. But apart from this she offered to prove fraudulent representations as to the character and contents of the instrument she had signed; that it was represented that it was a mere receipt. If she should establish a fraud in this respect it would not be necessary for her to make restoration even if an adult. (Cleary v. Municipal Light Co., 139 N. Y. 643.)

Order granting new trial should be affirmed, with costs.

Pratt and Dykman, J J., concurred.

Order granting new trial affirmed, with costs.


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    Daniel E. Christie, Respondent, v. Robert Bowne, Appellant.

      Ooming in of the jury — duty of the defendant to he present — trial commenced in one room and finished in another.

    It is tlie duty oí the defendant in an action to remain ■with the judge, and not the judge’s duty to keep the jury in waiting until the defendant’s attorney arrives, especially when such attorney leaves no word with the judge that he shall be sent for when the jury comes in.
    The fact that a trial was begun in one room and finished in another across the hall from the first room, does not prejudice any right of the defendant.
    Appeal by the defendant, Robert Bowne, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of November, 1893, denying the defendant’s motion, made upon the minutes, to set aside the verdict and for a new trial, on the ground of the invalidity and irregularity of the verdict of the jury and from the whole thereof.

      Charles Strauss, for the appellant.

      Henry L. Brant, for the respondent.
   Pratt, J.:

The affidavits in support of the motion allege that the verdict was-received in a private room, which is contradicted by the opposing affidavits.

The court has personal knowledge that the room described is a public room occupied by this court for many years for the hearing of motions and the trial of causes.

The facts resolve themselves into this, that the trial was begun in one room and finished in another across the hall from the first. This-did not prejudice any right of the defendant. Besides, it was the defendant’s fault that the verdict was taken in his absence. It was his duty to remain with the judge, and.not the-judge’s duty to keep-the jury in waiting until defendant’s attorney arrived, especially as he left no word with the judge that he should be sent for when the jury came in.

Again, we think if the defendant had any merit in this matter h& waived it by not moving at once, and by making other motions not consistent with his claim upon this motion.

The order must be affirmed, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


text:
    Elwin S. Piper, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Passengers in sleeping cars — uses of the conveniences thereof during the night — lights in toilet room — negligence as a matter of law — learning rear car door open— when negligent.

    A person who is a passenger on a sleeping car has a right to expect to find the conveniences which are furnished by such cars and for which he has paid.
    It is a matter of common knowledge that on sleeping cars passengers are expected to use the conveniences of the car during the night, and also are awakened in time that they may both dress and make their toilet before arriving at their destination.
    It cannot be said as a matter of law that a person upon discovering the darkness of the toilet room of a sleeping car should return to the body of the car, find the porter and wait until the room is lighted.
    It is the duty of a railroad company not only to light the lamps in the toilet room of its sleeping cars, but also to use reasonable care to keep them lighted, and its neglect to do so a jury may determine to constitute negligence.

      Senible, that the negligence of a railroad company may be inferred from the leaving open of the rear door of the last car of a train, when the rules of the company provide that it shall be kept closed between stations.
    Appeal by tlie plaintiff, Elwin S. Piper, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of June, 1893, dismissing the plaintiff’s complaint, and for costs, upon the verdict of a jury rendered by direction of the court after a trial at the Kings •County Circuit, and' also from an order made on the 22d day of June, 1893, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

      Jos. A. Burr, Jr., for the appellant.

      Thornd/ihe Saunders and Edwin D. Worcester, Jr., for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the defendant upon a verdict at Circuit directed by the court.

The plaintiff, on an evening in January, took a sleeping car at Albany bound for New York, where the train was to arrive at six-thirty in the morning. His testimony was to the effect that on the approach of the train to the city, about six o’clock, he was awakened by the porter; that, partially dressed, he started for the washroom, which he found wholly dark; that, to comply with a call of nature, he felt for the water closet, the location of which he knew, having been there the night before; that he grasped for the knob, and found one which he supposed to be that of the closet, but which proved to have been that of the rear door of the car, which had been left open, and that he was immediately precipitated through it from the train upon the ground, and was seriously injured.

That the plaintiff fell from the car was not disputed, but the absence of light, and that the door was open, were disputed. There was no such conclusiveness of the evidence in favor of the defendant as justified a direction in its favor on the disputed questions of fact. It is, therefore, to be determined whether, in the most favorable aspect of the evidence, the plaintiff failed as a matter of law to show any liability on the part of the defendant.

The plaintiff, being a passenger on the sleeping car, had the right to expect those conveniences which are furnished by such cars, and for which he had paid. (Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 58.) It is a matter of common knowledge that on such cars passengers are expected to use the conveniences of the car during the night, and also are awakened in time that they may both dress and make their toilets before arriving at their destination. When the plaintiff reached the toilet room he found it dark. He had a call of nature which it was reasonable for him to discharge, provided he did not place himself in danger. We think that it cannot be said as a matter of law that the plaintiff, upon discovering the darkness of the toilet room, should have returned to the body of the car, found the porter, and waited until the room was lighted. The question of contributory negligence, therefore, was for the jury.

The defendant’s negligence was also for the jury. We think no negligence can be predicated on the character of the car itself. But the absence of light might be found to be negligence, for the duty of the defendant was not only to light the lamps, but also to use reasonable diligence to maintain the light in the toilet room. Negligence possibly might also be predicated from the door being left open. The rules of the company provided that it should be kept closed between the stations. As this was the last car of the train it was not necessary to open the door for communication between different cars. It is not entirely clear how this door was required by the rules to be fastened, and it may appear on another trial that it might have been opened by a passenger for any purpose, such as air or to go out on the platform. But we think, in any aspect of the case, the question of negligence, based on the absence of light, should have been submitted to the jury.

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

Dykman and Pratt, JJ., concurred.

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


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    Henry A. Bowerman, Respondent, v. Warren D. Bowerman and Others, Appellants.

      Account stated — how fan' opened — action to set aside a deed, as fraudulent — evidence of the reputation of the deceased grantee for honesty, proper.

    To open an account stated it is usually required that the account be produced and the errors pointed out; whatever has been entered in error or wrongfully omitted being shown, the necessary rectification should be made, and, so far as not impeached, the account will stand as stated.
    Upon the trial of an action brought to set aside a deed as fraudulent and for a co-partnership accounting, evidence was offered of the reputation for honesty and integrity and the general reputation during his lifetime of a decedent who was alleged to have secured the execution of such deed bjr fraud, which evidence was excluded.

      Held, that under the circumstances of the case such testimony was admissible.
    Appeal by tbe defendants, Warren D. Bowerman and others, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of June, 1893, upon the report of a referee, and also by the defendants, Julia M. Bowerman and others, from an order made on the 9th day of June, 1893, granting the plaintiff an extra allowance of $2,000.

      William G. De Witt, for the appellants.

      Horace Seeor, Jr., for tlie respondent.
   Pratt, J.:

This action is brought to set aside a deed made in 1884 by the plaintiff to William D. Bowerman, deceased, and for a co-partnership acounting.

It is alleged that in 1882 William D. Bowerman fraudulently represented that an indebtedness of $12,000 existed in his favor and against the plaintiff; that plaintiff believed the statement and executed the conveyance in discharge of the alleged indebtedness, which, in fact, had no existence.

William D. Bowerman died in September, 1891, and in November, 1891, this action was begun.

In 1882 the plaintiff and William D. Bowerman had been co-partners for about thirty years, and had also had many outside speculations apart from the firm affairs. During most of that time, and until 1879, they resided with their mother, and the evidence shows that their evenings were generally spent with her, and their business affairs were a principal subject of their evening conversations, in which their mother freely and intelligently participated, the sons consulting the mother about their business.

In 1882 William D. Bowerman claimed that plaintiff was in his debt $12,000. Plaintiff was somewhat surprised.

William told his brother Benjamin, also a partner, that plaintiff owed iiim (William) $12,000. Benjamin was very much surprised.

A few days later, William, in presence of Benjamin and of W. S. Childs, their cousin, who was familiar with their speculations, gave plaintiff a statement which purported to show how the indebtedness arose. Childs examined the statement and plaintiff had a conversation with him on the subject that may have lasted five or ten minutes.

Plaintiff does not remember how long he kept the paper, but thinks two or three days; “ he probably put it in his pocket and looked it over.”

He afterwards gave it back to William and has not seen it since. After examination he believed that he owed William the $12,000, and suggested that the claim be discharged by a deed of the "Westchester property. This was plaintiff’s own offer, and it is clear that William was in no haste to profit by it, for two years elapsed before the deed was executed which is now the subject of attack.

The claim is now made that William’s statement of a balance due him from Henry was willfully' false, and plaintiff asks that the account thus stated be opened and the deed by which it was settled be set aside.

To open an account stated it is usually required that the account be produced, the errors pointed out; whatever has been entered in error or wrongfully omitted being shown, the necessary rectification can be made, and, so far as not impeached, the account will stand as stated.

In the present case the account is not produced and the parties who examined it do not claim to remember any of the items. Obviously it must have been a statement which, if true, would prove the $12,000 debt, and the plaintiff testified that he believed -it to be true. It cannot be said that he was hasty in acting upon his belief, for it was two years before he made his deed, and apparently no thought of questioning the deed or the account stated occurred to plaintiff until after his brother’s death.

The ground upon which we are asked to find the account stated to be false and fraudulent is that an examination now made of such accounts as can be found is said not to show the• plaintiff indebted to William, but the contrary.

If. none but firm transactions had taken place between the partners there would be considerable force in the argument, for the firm books were regularly kept by expert bookkeepers; they were constantly open to the inspection of all the partners ; trial balances were prepared and given to each partner twice a year, and in the ordinary course of business a correct record would be made of firm transactions, and any error would be discovered, if not before, when the trial balances were inspected by the partners. But the force of this argument in the present case is diminished when we learn that the plaintiff and William H. Bowerman had numerous and important speculations in whieli large sums were invested which had no connection with the partnership, and of which slight trace, if any, can be found in the firm books. They were not reported to the bookkeepers, and outside of the two persons directly interested no one seems to have had much knowledge of them, if we except their mother, who died in 1879.

The records which exist and have been produced upon the trial obviously fail to afford the complete knowledge which would be requisite to accurately state the condition of the accounts in 1882, at the time the account was stated, or in 1881, when the indebtedness then said to exist against the plaintiff was discharged by the conveyance now attacked.

The transactions upon which that account rested and to investigate which an attempt has been made are ancient.

The Metropolitan Collar Company business, from which the referee finds a present indebtedness in favor of the plaintiff of $28,000, was closed in July, 1868. It was not a partnership transaction, and the books show the Bowerman interest was then disposed of, and show little more.

The commercial warehouse investment was not a partnership matter, and was closed in 1873. In that matter the firm books contain entries to the amount of $2,000 only, and from that matter the referee finds an indebtedness in favor of the plaintiff of $100,000.

From a real estate sale in 1869 an indebtedness is spelled out. of $9,700.

From the Manhattan Market business, closed in 1873, an indebtedness is found of $25,000.

From such investigation as he has been able to make of a great number of transactions, including the foregoing, extending from 1852 to 1882, the referee has concluded not only that the sum of $12,000 was not, in fact, owing from the plaintiff to William D. Bowerman in 1882, and that the deed executed in 1881 must be set aside and the proceeds of the property conveyed, now amounting to $60,000, must be paid to plaintiff, but that other valid claims exist in favor of the plaintiff, in whose favor judgment is given for $161,000, against the heir and executrices of William D. Bowerman.

The whole foundation of this judgment rests on the assumption that it is now possible for strangers to ascertain the exact facts of transactions taking place between two parties from twenty-five to forty years ago, where one of the persons is dead and the other claims to liave been always ignorant, and where, if full accounts of the transactions were ever kept, they cannot now be found.

We do not think such possibility exists. We do not think it proved that the account stated in 1882 was fraudulent, nor erroneous. If it was glaringly wrong it would have provoked suspicion and investigation.

The statement of the amount due was made openly and in presence of plaintiff’s friends. The written account in support of the claim was delivered to plaintiff in presence of his friends.

No suggestion is made that any desired information was asked for and refused, and two years elapsed before the debt was paid. These are not indications of fraud, but the reverse.

As most of the important items litigated, some of which we have cited, antedated 1882, it follows that they were allowed in and concluded by the settlement then made.

We think an error was committed in excluding evidence of William D. Bowerman’s reputation for honesty, integrity and general reputation of character during his lifetime.

The contention of plaintiff is that during a long term of years a man, now deceased, carried out a comprehensive and consistent scheme of fraud, involving enormous sums. The evidence was circumstantial. One of the witnesses was the j>laintiff, and another principal witness was plaintiff’s brother, who might reasonably have expectations of benefit from a recovery by plaintiff.

Such writings as were produced came from plaintiff’s custody. The transactions were ancient.

It is not usually the case that men with a reputation for honesty and integrity embark in a scheme of persistent fraud, and if they do, it is not often that they can carry it on for years without discovery. Under the circumstances of this case we think the testimony admissible, and its exclusion error.

Judgment must be reversed upon both law and fact, and a new trial had before another referee, with costs to abide the event.

Let the order be settled on notice.

Dykman, J., concurred; Cullen, J., concurred in the result.

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

Order to be settled by Pratt, J.


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    Almeda Waterbury, Respondent, v. James Eliphalet Waterbury, Defendant, Harriet E. Drew, Appellant.

      Affidavit to obtain a warrant of attachment — when sufficient.

    An affidavit upon which a warrant of attachment is granted, if sufficient to call upon the court to exercise its discretion, will suffice to give jurisdiction.
    Appeal by Harriet E. Drew, a subsequent lienor, from an order of tlie Supremo Court made at tlie Orange County Special Term, and entered in tlie office of the clerk of tlie county of Orange on tlie 27tli day of November, 1893, denying lier motion to vacate a warrant- of attachment.
    The affidavit upon which the warrant of attachment in the action was granted was as follows:
    “ Almeda Waterbury, being duly sworn, says that she is the plaintiff; in the above-entitled action; that a summons has been issued in said action accompanying this application, which is brought to recover the following sums of money only, to wit, the sum of $2,150, with interest on $1,500 thereof from July 2,1892; interest on $500 thereof from March 1, 1893 ; and three years’ interest on $150 thereof.
    “ Also to recover the sum of $500 on note given to Theodore Sly and one year’s interest due thereon; also to recover $600 on note given to Wallace J. Dusinberre and interest thereon, both of which said notes are owned and held by this plaintiff, and that plaintiff claims and is entitled to recover therein from the defendant, J. Eliphalet Waterbury, the said sum as damages for breach of contract.

      “ Said notes above mentioned are all over due and payable at this date, and are over and above all counterclaims known to her, and she is entitled to recover said sums of money and all thereof upon a cause of action above set forth, existing in her favor against the said defendant, arising out of the following facts: The plaintiff above named is now the owner and holder of three certain promissory notes executed by the said defendant and payable to the plaintiff, one for $1,500, one for $500, and one for $150, all of which are over due, and upon which interest is due as above stated. The plaintiff is also the owner and holder of the two following described promissory notes, one given by defendant to Theodore Sly for the sum of $500, with interest for one year thereon ; also one other note given by defendant to W. J. Dusinberre for tbe sum of $600, together with the interest thereon, and which said notes are now owned and held by this plaintiff.
    “ That the defendant, J. Eliphalet Waterbury, is a resident of the State of New York; that he has departed therefrom with intent, as this deponent believes, to defraud his creditors, and the grounds of her belief are as' follows:
    “ That the said defendant on the morning of the 21st day of September, 1893, departed from his home in the county of Orange, where he then and heretofore had always resided, without stating to any person his place of destination, or where he could be addressed or found, or when lie would return, and he still remains absent from liis said home, and lias not been seen or heard from since his said departure ; that said defendant is heavily in debt, and is involved in an amount equal, if not exceeding all property whatever which he owns, or of which lie was possessed at the time of his departure; that lie stated to deponent just prior to liis departure that he had not money sufficient to pay liis interest, and that he was going to the fair then held in the village of 'Warwick, Orange county, N. Y.; that defendant did not go to such fair, but, on the contrary, went in an opposite direction, and has not since been heard from. And that since the departure of the said defendant from his said residence and on the 29th day of September, 1893, a barn and stable attached upon his premises were burned by fire, and the security of this plaintiff was thereby further reduced and imperilled.
    “ And deponent further states that no previous application for a warrant of attachment has been made in this or any action.
    “ The plaintiff, therefore, applies for a warrant of attachment against the property of the said defendant, J. Eliphalet Waterbury, as provided by the Code of Civil Procedure.
    “ALMEDA WATERBURY.”

      3L N. Kane, for the appellant.

      J. V. D. Benedict, for the respondent.
   Pratt, J.:

We think the affidavit of plaintiff was sufficient to call upon the the court to exercise its discretion, and that will suffice to give jurisdiction.

In opposition to the motion to vacate the attachment the plaintiff argues that the moving papers do not show a valid attachment in favor of the subsequent creditor.

As we are of opinion that plaintiff’s papers are sufficient, we are not compelled to analyze those of the subsequent creditors.

The order should be affirmed, with costs.

Cullen and Dykman, JJ., concurred.

Order affirmed, with ten dollai'S costs and disbursements.


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    James H. Van Inwegen, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Opinion of a plaintiff— not binding on a jury though it render a verdict in his favor.

    The opinion of a plaintiff as to whether a certain act was malicious, and not performed in the service of the defendant, is not binding upon the jury although it renders a verdict in his favor.
    Appeal by the defendant, The New York, Lake Erie & Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 5th day of July, 1893, upon the verdict of a jury for $315, after a trial at the Orange County Circuit, and also from an order entered in said clerk’s office on the 9th day of August, 1893, denying the defendant’s motion to set aside the verdict and for a new tidal, made upon the minutes.
    This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the frightening of the team which he was driving, causing them to become unmanageable and to run away, whereby he was thrown violently from his wagon. The complaint alleged that his team was frightened by an employee of the defendant’s causing a whistle attached to their locomotive to be suddenly and violently blown and at the same time causing steam to be emitted from .such locomotive in large quantities, without the slightest reason or cause therefor, and against the request of the plaintiff.

      Lewis jK Carr, for the appellant.

      John W. Lyon, for the respondent.
   Pratt, J.:

The principal argument urged against the verdict is that if plaintiff was correct in his interpretation of the engineer’s action it was willful and malicious, and not performed in the^ervice of defendant.

The answer to that argument is that the opinion of the plaintiff was not binding on the jury, who were the judges of that question.

The engineer testified that he blew the whistle in the course of his duty for the purpose of moving the cars. The jury had a right to believe the engineer. They were also authorized by the testimony to find that the action of the engineer was heedless and without due regard to the situation of the plaintiff.

The charge of the court correctly laid down the law and the testimony warranted the verdict.

The judgment should be affirmed.

Cullen and Dykman, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


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    William Rook, Respondent, v. New Jersey and Pennsylvania Concentrating Works, Appellant.

      Action to recover damages for personal injuries ■— maintainable against both the contractor and the third party.

    Where a contractor, being short of laborers, borrows a gang of men from a third party, and under the orders of the foreman of such third party one of such laborers is put in a dangerous place where he receives injuries, an action to recover the damages resulting therefrom is maintainable against the contractor and also against the third party.
    Appeal by the defendant, The New Jersey and Pennsylvania Concentrating Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 30th day of June, 1893, upon the verdict of a jury for $4,000 after a trial at the Orange County Circuit, and also from an order entered in said clerk’s office on the 25th day of July, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Theo. B. Steele, for tlie appellant.

      John 21. Gardner, for tlie respondent.
   Pratt, J.:

We tliink tlie Circuit judge ruled correctly on all points, and that no error of law was committed.

The point made by defendant, that the building was being erected by an independent contractor, and that he only should be held responsible, cannot be available upon the facts shown. The plaintiff was not in the service of tlie contractor, but of defendant.

The contractor being short of laborers, “ borrowed from defendant a gang of men,” among whom was the plaintiff.

Under the orders of defendant’s foreman he was put into a dangerous place, where he received his injuries. Upon the facts he could recover against the contractor, and also against the defendant. His action was, therefore, well brought, and the verdict must stand.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Cullen, J., concurred in the result.

Judgment affirmed, with costs.


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    In the Matter of the Claim of Mary L. Van Slooten, Respondent, v. Charles H. Wheeler, as Executor, etc., of Harry E. Dodge, Appellant.

      Pelirery of personal property to an executor to be inventoried — title thereto not transferred thereby— action for the restoration of the property — not a claim on contract or for damages — when maintainable against an executor as such.

    Tlie mere handing of a ring, formerly the property of a decedent, by the alleged donee thereof, to the executor of the decedent’s estate on his claim that it should be.inventoried among the assets of such estate, in the absence of proof of any intention on the part of the donee to make a gift of the same to the estate, does not work a transfer of the title thereto.
    An executor cannot bind his estate on contract, but an action brought to recover the possession of such ring is simply a claim for the restoration thereof, and not a claim on contract or for damages, and is maintainable against the executor as such. (Cullen, J,, dissenting.)

      Appeal by the defendant, Charles II. Wheeler, as executor, etc., of Harry E. Dodge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of October, 1893, upon the report of a referee, and also from an order entered in the said clerk’s office on the 14th day of September, 1893, confirming the report of such referee, and denying the defendant’s motion to set aside the referee’s report and for a new trial.

      Hubbard c& liushmore and John D. Pray, for the appellant.

      Merritt E. Ilaviland, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered in favor of the claimant for the delivery of a ring by defendant as executor, said judgment. having been entered on the report of a referee.

This matter has been twice before the General Term on appeals ’from judgments entered on the reports of referees in favor of defendant, and has been twice sent back, the General Term reversing the judgments on the facts.

There can be no question but that the findings of fact by the referee are amply sitstained by the evidence taken before him, which was practically the same as was taken before the -former referees.

The only question we need to consider is one of law, which is raised by the defendant, to wit, should the claim herein have been made against the defendant personally, and not against him as executor of the estate of the deceased.

The defendant contends that the taking of the ring by him was an individual act on his-part, and not an act of his as executor.

The defendant executor produced the ring on the trial, and it was one of the findings of fact, which was supported by the evidetme, that he had inventoried the ring as an asset of the estate of the deceased.

The evidence shows beyond any question that the ring was given to claimant by the deceased some two or three weeks before his death, and that she wore it from that time on, and had it in her possession at the time of and after the death of the deceased.

Upon tlie request of the defendant executor, and his statement that the ring should be inventoried in the estate, she handed it to him. There was no proof whatever of any intention on her part to make a gift of this ring to the estate. Merely handing it to him on his claim that it should be inventoried among the assets of the estate did not work a transfer of the title. The ring never has belonged to the estate of the deceased, and no harm can be done by the executor delivering it back to the plaintiff.

It is undoubtedly true, as defendant contends, that the executor cannot bind his estate on contract; but this is not a claim on a contract, nor is it a claim for damages. It is simply a claim for the restoration of the ring to the claimant.

It seems to us that the principle laid'down in the'case of Wall v. Kellogg's Executors (16 N. Y. 385) controls this case.

So, too, Story’s Eq. Juris. § 796; Woodcock v. Bennet (1 Cow. 711); De Valengin’s Admrs. v. Duffy (14 Pet. 283), decided in the Supreme Court of the United States; Conger, Administrator, v. Atwood (28 Ohio St. 110); Simpson v. Snyder (54 Iowa, 558), and Barry v. Lambert (98 N. Y. 300), seem also to us to sustain the contention of the claimant, respondent.

In 2 Williams on Executors, 1509, the following principle is laid •down: The plaintiff may, in many cases, have an advantage in proceedings against the assets, rather than against the executor personally. The executor in his individual capacity may be insolvent; in his character as executor he may have assets adequate to- answer .any claim. And when the money is paid to his use, justice seems to require that the person who has made payment should have the liberty of looking to the fund which the executor has in that •character.”

In Steele v. McDowell (9 Smedes & Marshall [Miss.], 193) it is held that “ it is but just that the person making the payment should have the right to look to the fund which the executor holds, and recover it under a count for money paid -to the use of defendant as •executor.”

The judgment should be affirmed, with costs.

Dykman, J., concurred.

Cullen, J.

(dissenting):

This is an appeal from a judgment confirming the'report of a referee on a reference of a disputed claim against the estate of a deceased person.

We are of opinion that the respondent established no valid claim against the deceased, and that the judgment cannot stand. The claim of the respondent is that she was the owner of a diamond ring given her by appellant’s testator; that after his decease the appellant obtained the ring from her, refused to return it, and after-wards inventoried it as part of the estate. The judgment is that she recover of the defendant as executor the ring and $641 costs. As stated by the plaintiff this was simply a personal tort of the defendant for which concededly an action could be maintained against him individually. This is a 'special proceeding and the authority for its maintenance and conduct statutory. (Eldred v. Eames, 115 N. Y. 401; Mowry v. Peet, 88 id. 453 ; Roe v. Boyle, 81 id. 305.)

The statutory provisions on the subject are sections 34 to 39, pages 88, 89, 2 Revised Statutes. By section 34 notice is to be published to “ creditors of deceased ” to present claims against the deceased ” within a specified time. Section 35 provides that, on a claim being presented against the deceased, the executor may require proof and vouchers. The subsequent sections provide for the reference of disputed claims and the proceedings thereon. These provisions seem solely to relate to matter’s that were, or would have been, had he survived, claims against the deceased. This was so held in Godding v. Porter (17 Abb. Pr. 374), and wre can find no reported case where a claim of this character has been the subject of reference under the statute. In Francisco v. Fitch (25 Barb. 130), cited by respondent, it was held that the object of the statute was to allow a reference of. all claims against an estate, whether legal or equitable, which the executor was competent to settle or adjust. But in that case the liability it was sought to enforce arose out of the acts of the testator, not from those of the executor, and the language used must be limited to such claims. In no proper sense of the term did this claim arise out of, a transaction with testator. The claimant’s title to the ring came from the testator, but the claim arose from the act of the executor, and the claimant might have proved title proceeding from any other source.

If it were conceded that the statutory reference could take cognizance of claims against executors to the same extent that an action in equity could be maintained, we still think that a case for an equitable action is not made out. There is no pretense of the insolvency of the defendant, and the judgment is for the recovery of specific property. If the defendant has the property there seems to-be no reason why an action in replevin would not be efficacious. The law is settled in this State that the contracts of executors cannot, increase the liability of the estate. (Stanton v. King, unreported; see 76 N. Y. 585; Ferrin v. Myrick, 41 id. 315; Schmittler v. Simon, 101 id. 554; Cary v. Gregory, 38 N. Y. Super. Ct. 127.) A fortiori the liability cannot be increased by their tort.

The case of Wall v. Kellogg's Exrs. (16 N. Y. 385) is to be distinguished. There the testator held the title to land in fact merely as-trustee. The executors, under a power of sale contained in a will, sold the lands, and the proceeds went into the estate. Their liability sprang directly from the relations of the testator to his property. The sale was made by them as executors, otherwise they could have passed no title. So in De Valengin's Admrs. v. Duffy (14 Pet. 285) the moneys were received by the defendants as executors, and their liability sprang out of the act of their testator, wíio had presented the claim in his own name, and would have been, as to the proceeds he might receive, a trustee for the plaintiff. In the opinion the court limited the right of such personal representatives to cases where-they had lawfully received moneys in that character.

It is argued that no harm is done the estate by this judgment, as it directs the return of the property in specie. But it also imposes, upon the estate costs amounting to several hundred dollars, the propriety of which imposition could properly be determined only when the executor sought indemnity for his expenses from the estate.

The judgment should be reversed, and as the notice of claim, on its face, sets forth a claim not falling within the statute, the order of reference should be vacated and all proceedings thereon set aside, without costs to either party as against the other.

Judgment affirmed, with costs.