text:
    Charles Smith and William Pitt Robinson, Appellants, v. The Seattle, Lake Shore and Eastern Railway Company, Respondent.

      Broker’s commissions — when due — executory contract in which the agent of the principal is to share in the broker’s commissions — burden of proof— degree of knowledge requwed to create notice — facts under lohich an action upon such an executory , contract is not maintainable.

    Before a broker is entitled to recover compensation for his services he must show that he has found a person able and willing to enter into the contract which he was authorized to negotiate.
    If a person enters into an executory contract with another through such second person’s known agent, and gives to such agent a secret interest in the contract, he cannot recover damages from the principal of such agent because of his failure to perform the contract, unless the principal, with full knowledge of the situation, ratifies the agreement; and the burden is upon the person seeking to enforce the contract of showing that the agent made a full disclosure of his interest to his principal, and knowledge on the part of the principal such as would put a prudent man upon inquiry is not sufficient.
    To an action brought to recover damages for the refusal of the defendant to deliver to the plaintiffs 150 of its first mortgage bonds, alleged to have become due the plaintiffs for services rendered in procuring a construction contract for the defendant, two defenses were interposed: (1) That the plaintiffs did not procure the contract to be entered into, and (2) that the defendant’s agent, who-negotiated and executed the contract under which the plaintiffs claimed, was given an interest therein by the plaintiffs.
    The evidence relating to the issues thus presented being considered in detail,

      Held, that the second defense was established, and that, under the circumstances, the plaintiffs could not maintain an action upon the contract;

      That this was so, even though the evidence did not show that it was agreed, before the brokerage contract was entered into, that the defendant’s agent was to have a part of the bonds to be given for the plaintiffs’ services.
    Appeal by the plaintiffs, Charles Smith and William Pitt Robinson, from a judgment of the Supreme Court in favor of the defendant,, made at the New York Circuit and entered in the office of the clerk of the city and county of New York on the 28th day of February, 1893, dismissing’ the plaintiffs’ complaint, and from an order made at the New York Circuit, entered in said clerk’s office on the 24th day of February, 1893, denying the plaintiffs’ motion to set. aside the direction dismissing the complaint and to grant a new trial*

      John II. V. Arnold and Gilbert D. Lamb, for the appellants.

      Edgar M. Johnson, for the respondent.
   Follett, J.:

This action was brought to recover $150,000 damages, with interest from December 3, 1887, for the refusal of the defendant to deliver to the plaintiffs 150 of its first mortgage six per cent gold bonds of the par value of $1,000 each, alleged to have become due to the plaintiffs for services rendered in procuring a construction contract for defendant. Two defenses were interposed: (1) That the plaintiffs, did not procure a construction contract to be entered into, and (2) that defendant’s agent who negotiated and executed the contract under which the plaintiffs claim, was given an interest therein by the plaiutiffs.

Prior to April, 1886, the defendant was incorporated under the laws of the Territory of Washington, and authorized to construct a. railroad several hundred miles in length. Its affairs were managed by a board of trustees who possessed the powers usually exercised by boards of directors. From April to August 10, 1886, Daniel II. Gilman was one of the trustees of the defendant, and was the general manager of its business.

On the 17th of April, 1886, defendant’s board of trustees adopted a resolution appointing Gilman the agent of the corporation, with power to make a contract or contracts for the construction of the whole or any part of its line, subject, however, to the approval of the board. Immediately after the adoption of this resolution Gil-man left Seattle for St. Louis, Mo., where, in the month of April, he met William P. Robinson, one of the plaintiffs, and Charles M. Sheafe; he disclosed to these gentlemen his powers and his purpose, and asked for their assistance. Robinson stated to Gilman that sufficient aid to build the road could not be obtained in St. Louis, and that it should be sought in the city of New York, and gave him a letter of introduction to Charles Smith, Jr.-, one of the plaintiffs. Gilman presented his letter to Smith, and they immediately began to contrive means to secure a contract for the construction of all or of some part of defendant’s road. Shortly after Gilman and Smith had entered into negotiations, Robinson and Sheafe went from St. Louis to New York, at which city various con■sultátions were had between these four gentlemen in respect to the ■enterprise. The result was that at some time (the date of its execution not very clearly appearing) a contract was entered into by Smith in behalf of himself and Robinson of one part, and the railroad •company on the other part, of which the following is a copy :

“ This agreement, made this 5th day of June, 1886, between the Seattle, Lake Shore and Eastern Railway Company, by D. H. Gil-man, its duly authorized agent, party of the first part, and Charles Smith, Jr., broker, of the city of New York, party of the second .part, witnesseth:

“ Whereas, The party of the first part is desirous of securing a responsible person or company to build its road, and, for that jrarpose, is authorized tto issue bonds at the rate of $25,000 per mile, and such amount of stock as may be necessary; and,

“Whereas, The party of the second part is willing to undertake 'to procure the making of a construction contract with such person or company upon sufficient' consideration or remuneration being .guaranteed to him;

Wow, therefore, in consideration of the premises, and of the ■sum of one dollar to it paid by the party of the second part, the party of the first part hereby agrees, in case said second party succeeds within a reasonable time in securing the making of such a contract, whereby the contractors receive stock at a rate not to exceed $15,000 per mile, and bonds at the rate of $20,000 per mile, for the "first forty miles, and $25,000 per mile thereafter, to pay said second .party $150,000 in its first mortgage six per cent gold bonds, said bonds to be delivered as soon as they may be under the terms of the-mortgage, after discharging the obligations of the party of the first part to the contractors.

“ In witness whereof, the parties hereto have hereunto subscribed their names the day and year first above written.

“ SEATTLE, LAKE SHORE AND EASTERN RAILWAY CO..

“ by D. H. Gilman, Agent.

“CHARLES SMITH, Jr.”

Whether the foregoing contract was executed on the day of its: date or after the formation of the construction company about to be described is left uncertain by the testimony. Robinson, the only witness who speaks in respect to it, testified that he was not certain whether the agreement was executed in July and antedated, or whether it was signed on the day of its date.

On the 3d of July, 1886, Daniel H. Gilman, Charles M. Sheafe,, William P. Robinson, Thomas Burke and Franklin M. Jones executed articles incorporating the Puget Sound Construction Company, with a nominal capital of $1,000,000, divided into shares of $100 each. The object of the corporation was to construct and equip railroads. It was provided that the five persons mentioned were to act as trustees until December 30, 1886.

On the 9th of July, 1886, an agreement was entered into between the defendant and Jameson, Smith & Cotting, of which the following is a copy :

“ Memorandum of agreement made this 9th day of July, 1886,. between the Seattle, Lake Shore and Eastern Railway Company, by D. H. Gilman, its duly authorized agent, party of the first part,- and Jameson, Smith & Cotting, brokers, of New York, parties of the second part. In consideration of the parties of the second part aiding in obtaining and receiving subscriptions for five hundred thousand dollars to the Puget Sound Construction Company, for the purpose of building forty miles of said Seattle, Lake Shore and Eastern Railway, the party of the first part agrees to pay and deliver to Jameson, Smith and Cotting, parties of the second part, fifty thousand dollars of its first mortgage 6 per cent gold bonds, and forty thousand'dollars of its full paid capital stock, to be delivered to said parties of the second part as soon as said bonds and capital stock are ready for delivery, and, as a further part of this contract, in consideration of such services as parties of the second ■ part may-render in the extension of said railway, the parties of the first part agree for themselves and their successors to pay and deliver to said parties of the second part one thousand dollars per mile in the full paid capital stock of Seattle, Lake Shore and Eastern railway as each section of ten miles is completed after the fhst forty miles are built, and such usual and regular commissions as are charged by first-class corporations or firms acting in the capacity of financial agents.

“ In witness whereof, the said parties have hereunto subscribed their names the day and year above written.

“ SEATTLE, LAKE SHORE AND EASTERN RAILWAY COMPANY,

“ by D. II. Gilman, Agent.

“In the presence of JAMESON, SMITH & COTTING.

“ IIomer A. Hoits.”

At some time between July 3 and August 10, 1886, a proposed agreement for the construction of a part of defendant’s road was drafted. By it the construction company undertook to commence work September 1, 1886, and continue the work until the road was completed.

On the 10th of August, 1886, at a meeting of the defendant’s board of trustees held at Seattle, there were present J. R. McDonald, Thomas Burke, E. II. Osgood, Thomas T. Minor and Daniel II. Gilman. At this meeting Burke and Gilman, who had become interested in the construction company, resigned as trustees of the railroad; their resignations were accepted and- their successors were then chosen and immediately qualified. After this had been done Gilman reported to the board of trustees his action in the premises. His report set. forth copies of the contract with the plaintiffs, dated June fifth, and the contract with Jameson, Smith & Cotting of July 9, 1886, and also a copy of the proposed construction contract. This contract was never executed by the construction company nor by the railroad company, and there was no evidence that it was ever approved of by the trustees of the construction company; indeed, Robinson, who was president of that company, and is one of the plaintiffs in this action, testified that he was nev.er authorized by the hoard of trustees to execute that contract. At the date of this meeting, August 10,1886, only 810 of the shares of the construction company had been subscribed for. Thirty-five thousand dollars had been subscribed by two persons through the solicitation of Gilman. These two subscriptions were subsequently paid. Robinson subscribed $20,000 ; a gentleman by the name of Henson, $5,000, and Knowlton, $10,000; none of these subscriptions were ever paid.

On the tenth of August the construction company was a mere shell, a corporation in name but without a paid-up capital. Subsequently, Jameson, Smith & Cotting, in pursuance of their contract, secured a sufficient number of shares of the company to be subscribed and paid for to enable the company to undertake the work of constructing the defendant’s road.

On the 1st day of January, 1887, Robinson ceased to be president of the construction company, and another person was elected in his stead. On the 12th of January, 1887, the contract was entered into between the construction company and the defendant, under which a portion of the road was completed. This contract was executed by Mr. Sheafe, general manager of the construction company, and by Mr. J. R. McDonald, president of the railroad company. There is no evidence in the case which tends .to show that the plaintiffs, or either of them, were in any way instrumental in securing this contract. The agreement under which the plaintiffs claim to recover is what is known as a brokerage contract. Before a broker is entitled to recover compensation for his services he must show that he has found a person able and willing to enter into the contract which he was authorized to negotiate. This rule is elementary and does not require the citation of authority.

The construction company on the 10th day of August, 1887, had not the ability to undertake the construction of the work; it was without capital, and, besides, its hoard of trustees had never authorized the making of the contract submitted to the defendant’s board of trustees. The plaintiffs, as was well held at the Circuit, failed to show that they performed the contract under, which they claim. Again, Robinson, one of the plaintiffs, testified that Daniel H. Gil-man, who was agent and at that time a trustee of the defendant, was to receive $50,000 of the $150,000 of the bonds which the railroad company was to deliver under the contract with the plaintiffs. This evidence was not contradicted although Smith was on the stand, nor was it explained, and it is quite evident that these plaintiffs and Gil-man were equally interested in the brokerage contract of June fifth. It is not pretended that Gilman’s interest was disclosed to the trustees or officers of the defendant.

It is an elementary rule of law that if A enters into an executory contract with B through 0, the known agent of B, and gives to 0, the agent, a secret interest in the contract, A cannot recover damages from B for his failure to perform the contract, unless the latter, with full knowledge of the situation, ratifies the agreement. This rule is founded on the plainest principles of justice. Agents are bound to exercise the utmost good faith towards their principals and cannot lawfully take secret interests in contracts which they are authorized to make. When an agent is employed to sell, he cannot lawfully become the purchaser; or, if he is authorized to buy, he cannot lawfully become the seller. When he violates these rules he commits a fraud on his principal, and whoever gives an agent interest in a contract which he is authorized to make, becomes a guilty participant in the fraud of the agent, and a contract so entered into is voidable at the election of the principal. (Munson v. The Syracuse, Geneva & Corning R. R. Co., 103 N. Y. 58; Risley v. The Indianapolis, Bloomington & Western R. R. Co., 62 id. 240; Conkey v. Bond, 34 Barb. 276; affd., 36 N. Y. 427; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587 ; Wardell v. Railroad Co., 103 id. 651; Salomons v. Pender, 3 H. & C. 639 ; Harrington v. The Victoria Graving Dock Co., 3 Q. B. D. 549; Smith v. Sorby, Id. 552; Panama & South Pacific Tel. Co. v. India Rubber, Gutta Percha & Tel. Works Co., L. R. [10 Ch. App. Gas.] 515; Mayor, etc., of Salford v. Lewer, 25 Q. B. Div. 363 ; affd., C. A. (1891) 1 Q. B. 168 ; Story Ag. §§ 210, 211.)

In Harrington v. The Victoria Graving Dock Co. (supra), the defendant repaired ships for the Great Eastern Railway Company. The plaintiff was employed by the railroad company as an engineer to advise in relation to repairing ships and to estimate the cost of the repairs. The plaintiff alleged in his complaint that the defendant agreed to pay him five per cent for superintending the repairs. The defendant answered that the agreement was made to induce the plaintiff to use Ms influence with the railway company to accept the defendant’s offer to make the repairs. The jury found that the agreement to pay the five per cent was partly in consideration of the plaintiff’s superintending the repairs, and partly in consideration of the plaintiff’s promise to use his influence with his employers (the railway company) to accept of defendant’s proposals. But the jury further found that the agreement did not bias the plaintiff’s judgment or action to the detriment of the railway company, notwithstanding it was held that the agreement was a corrupt one, and that the plaintiff could not recover the compensation agreed to be paid.

The learned Chief Justice, Lord Oookburn, in discussing the case, said:

“ I will assume, for the purposes of argument, that the agreement did not influence the mind of the plaintiff so as to induce him to do anything dishonest towards his employers, the Great Eastern Railway Company. I entertain no doubt, however, that when a bribe is given, or a promise of a bribe is made to a person in the employ of another by some one who has contracted, or is about to contract, with the employer, with a view to inducing the person employed to act otherwise than with loyalty and fidelity to his employer, the agreement is a corrupt one, and is not enforceable at law, whatever the actual effect produced on the mind of the person bribed may be. The tendency of such an agreement as this must be to bias the mind- of the agent or other person employed, and to lead him to act disloyally to- his principal. It is intended by the party who promises the bribe to have that effect, and the other party knows such is his intention. Such a bargain is obviously corrupt.”

■ In Mayor, etc., of Salford v. Lever [supra), it was held that a principal whose agent has received a consideration from the other party to the contract, made or induced by the agent, may recover the sum received by the agent in an action against him, and also all damages sustained from the agent and the contractor. This judgment rests on the ground that the defendant and the contractor were joint wrongdoers.

But it is said in the case at bar that the evidence does not show that it was agreed, before the contract of June third was made, that Gilman was to have any part of the bonds to be given for the plaintiff’s services. If tliis is true it does not Help the plaintiff's contention. The contract was an executory one, and the defendant was entitled to have the disinterested judgment of Gilman (its agent), Avho was authorized to negotiate a construction contract, as to the terms thereof, and also with whom it (the contract) should be entered into. When it was agreed between the plaintiffs and Gilman thafr the latter should have one-third of the bonds to which the plaintiffs would be entitled on procuring a satisfactory contract, Gilman had a direct pecuniary interest in accepting such a contract and contractor as the plaintiffs might tender. Gilman was no longer the defendants disinterested agent, but was under temptation offered by the plaintiffs to sacrifice the interest of his principal to his own. This rendered the original agreement voidable at the election of the defendant,

Robinson testified that in the latter part of December, 1886, Smith, his co-plaintiff, received a notification Horn the defendant that the agreement had been rescinded. Under such circumstances the plaintiffs cannot maintain an action upon the contract. It is urged, that the stockholders of the defendant knew that Gilman had an interest in the contract and that whether they had ratified his action or not was a question of fact for the jury. When it appears that an agent has an interest in the contract negotiated by him in behalf of his principal the burden is on the party seeking to enforce the contract of showing that the agent made a full disclosure of his interest to. his principal. [Dunne v. English, L. R. [18 Eq. Cas.] 521.) .

Such knowledge on the paid; of. the principal as would put a prudent person on inquiry is not sufficient. A principal and agent are not dealing at arm’s length, but sustain a confidential relation to each other demanding the exercise of the utmost good faith. In the case at bar there is no evidence that the defendant’s directors knew on the tenth of August, when they ratified the action of Gil-man, that he was to have any interest in the contract under which the plaintiffs claim.

The judgment should be affirmed, with costs.

Yan Brunt, P. L, and Parker, L, concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    Edgar L. Ridgway, as Temporary Administrator of the Estate of William L. Muller, Deceased, Respondent, v. Charles P. Bacon, Appellant, Impleaded with Lewis M. Smith, William Fiske and Douglas Boardman, as Executor of Jennie McGraw Fiske.

      Assignment of a lien to be held as collateral security — right of the assignor to maintain an action for its enforcement — it is no defense that the promise secured is negotiable — equity suit — parties—pleading — a single cause of action.

    One who has assigned a lien as collateral security, may, if he has an existing interest in it, maintain an action for its enforcement, to which action the assignee is a necessary party. The fact that the promise, which the lien was given to secure the payment of, is negotiable is no defense to the action.
    The complaint, in an action brought against Smith, Fiske and Boardman as executor to have it adjudged that a lien existed on a specific fund in the hands of one of the defendants, for its enforcement out of that fund, to determine the rights of two rival claimants to the lien, and for the recovery of a judgment for any deficiency against the person who gave the lien as security for the performance of his promise to pay a definite sum of money, alleged that there was a fund in the hands of the defendant Boardman as executor, which belonged to Fiske, who assigned a percentage thereof to Bacon ; that thereafter Bacon made his promissory note to the plaintiff’s intestate for $25,000, and for the purpose of securing the payment thereof assigned $25,000 of such fund to the plaintiff’s intestate. That, thereafter, the plaintiif’s intestate made his promissory note to the order of Smith for $5,000, which was indorsed by the payee for the accommodation of the plaintiff’s intestate by whom it was discounted. That when such note was made and indorsed, Bacon executed and delivered to Smith a statement that the $25,000 note given by him to the plaintiff’s intestate was for full value ; that there were no offsets thereto, and that he had not made any other transfers of his interest in such fund.
    It also alleged that the plaintiif’s intestate, to secure Smith for his indorsement, delivered to him the $25,000 note made by Bacon and the assignment from Bacon to the plaintiif’s intestate. That the $5,000 note had been paid and that the $25,000 note had not been paid. That Smith held the $25,000 note and the assignment and refused to surrender them on the ground that he had a further lien thereon.

      Held, that the action was maintainable in a court of equity ;
    That there was but a single cause of action set forth in the complaint;
    That all of the parties were necessary parties to the action.
    Appeal by the defendant Charles P. Bacon from an interlocutory judgment of the Supreme Court in favor of the plaintiff, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 25th day of April, 1893, and also from the decision and order made at the New York Special Term on the 4th day of October, 1892, overruling the defendant Bacon’s demurrer to the plaintiff’s complaint.

      Charles Donohue, for the appellant.

      Summer C. Chandler, for the respondent.
   Follett, J.:

This is a very simple and common equitable action brought to have it adjudged that a lien exists on a specific fund in the hands of one of the defendants, for its enforcement out of that fund, to determine the rights of the two rival claimants to the lien, and for the recovery of a judgment for any deficiency against the person who gave the lien as security for the performance of his promise to pay a definite sum of money. Such an action may be maintained in a court of equity. (Fletcher v. Morey, 2 Story C. C. 555 ; Jones’ Liens, §§ 43, 93; Pom. Eq. Juris. §§ 169, 170, 1237.) It is alleged that by final judgments of the courts of this State, and of the Supreme Court of the United States, there is a fund in the hands of the defendant Boardman which belongs to the defendant Fiske, who, September 4,1889, executed and delivered to defendant Bacon an assignment of which tire following is a copy :

“In consideration of legal services and money expended by Charles P. Bacon, now of the city of New York, in the action relating to the estate of the foregoing Jennie McGraw Fiske, which is now pending in the Supreme Court of the United States, I, Willard Fiske, of Ithaca, New York, temporarily sojourning in Florence, Italy, do hereby assign and transfer unto said Bacon thirty per cent of any and all moneys which may become due to and directed to be paid to me by any judgment in said action, or in any jxroceedings in the above-entitled matter in the Surrogate’s Court of Tompkins county; provided, however, that the said Bacon shall pay and satisfy any and all counsel fees and expenses incurred in my behalf in said litigation.

“ Dated September 4, 1889. WILLARD FISKE.”

It is further alleged that on the. 24th of September, 1889, the defendant Bacon made and delivered his promissory note to William L. Muller, by which, for value received, he promised to pay Muller, or order, $25,000 six months after date, at the Farmers and Mechanics’ Bank, at Elmira, N. Y., and that, for the purpose of securing the payment of said note, said Bacon executed and delivered to said Muller the following assignment:

“'Whereas, an action is now pending on appeal in the Supreme Court of the United States in relation to the estate of and to the last will and testament of the above-named Jennie McGraw Fiske, and

“Whereas, I am the attorney of record in said action for Wil- . lard Fiske, one of the parties thereto, and

“ Whereas, I am indebted unto William L. Muller for legal services rendered in said action, and for money advanced by him to me,

“Now, therefore, in consideration thereof, I do hereby assign, transfer and set over unto said William L. Muller the sum of twenty-five thousand dollars out of the amount coming to me in said action in pursuance of my agreement with said Willard Fiske in relation thereto (a copy of which said agreement and of the whole thereof is hereto annexed).

“ And I hereby authorize and direct the executor of said estate, or the surrogate of Tompkins county, New York, or such other proper person or officer, to pay over to the said Muller, or hie assigns, out of any moneys due and owing from said estate to said Willard Fiske, said sum of twenty-five thousand dollars.

“And I hereby authorize and direct said Muller to execute a receipt for said sum in his own name, which I do hereby declare shall be received by said executor or surrogate, or other proper person, and accepted by me as such attorney or assignee as a voucher and payment of said sum of twenty-five thousand dollars on account of any moneys out of said estate directed to be paid to Willard Fiske, or to me as his attorney or assignee, the same as though executed by said Willard Fiske, or by said Willard Fiske or by me as his attorney or assignee.

“Dated New York, Sept. 2Hh, 1889.

“CHARLES P. BACON.”

It is also alleged that on September 24, 1889, said Muller made his promissory note whereby he promised to pay to the order of defendant Lewis M. Smith $5,000, six months after date, which was indorsed by the payee for the accommodation of the maker, and was discounted for the latter at said Farmers and Mechanics’ Bank. That when said last-mentioned note was made and indorsed, said Bacon executed and delivered to said Smith the following statement:

“I have given to W. L. Muller for full and valuable consideration, my note dated September 24, 1889, payable to his order, for $25,000, due in six months from said date, and as collateral thereto have executed to said William L. Muller the foregoing assignment.

“ Now, therefore, in consideration of L. M. Smith, of Elmira, indorsing the note of said Muller for $5,000 and interest, dated September 24, 1889, and due in six months from its date, and receiving from said Muller my said note for $25,000, and said assignment as collateral security for said indorsement by said Smith, I do hereby declare that my said note to said Muller was given for full value, and that there are no offsets or defenses thereto, and further, that I have not made or executed any other transfer of any of my interest in said contract with said Fiske.

“Dated New York, September 24, 1889.

“ CHARLES P. BACON.”

It is also alleged that said Muller, to secure said Smith for his said indorsement, delivered to him said note made by Bacon for $25,000, and said assignment from Bacon to Muller, and that said note for $5,000 has been paid, and that the note of Bacon for $25,000 has not, which, with said assignment, said Smith now holds and refuses to surrender on the ground that he has a further lien on them. These facts constitute a good cause of action against Bacon for the enforcement of the lien and the recovery of a judgment for the deficiency, and the fact that Smith holds or claims to hold the note and assignment as collateral to some promise or liability of Muller is not a good defense in favor of Bacon. It has been long settled that one who has assigned a lien as collateral security, may, if he have an existing interest in it, maintain an action for its enforcement, and that the assignee is a necessary party to such an action. (Norton v. Warner, 3 Edw. Ch. 106; Simson v. Satterlee, 6 Hun, 305 ; affd., 64 N. Y. 657; Burlingame v. Parce, 12 Hun, 149; Jones Mort. §§ 1375 et seq.; Wiltsie Mort. For. §§ 14, 15, 79.) The fact that the promise -which the lien was given to secure the performance of, is negotiable instead of non-negotiable, is no defense to the action. There is but a single cause of action set forth in the complaint, and all of the parties are necessary ones. The learned counsel for the appellant urges that his client has no interest in the controversy between the plaintiff and Smith. That is clear, and it is equally plain that his only interest in this litigation is .to pay, delay or escape payment of liis debt. If he owes the debt, as he admits by his demurrer, he can escape all liability and trouble by paying the amount into court and let the other parties go on with their contest. If he have any defense it can be interposed, and the presence of the other parties to the action will in no way embarrass him. The original lien was created by Fiske, and the instrument by which it was created contains conditions, the non-performance of which may defeat the lien wholly or partly, and so he is a neoessary party for the determination of all of the rights of the parties. The executor of the estate of Jennie McGraw Fiske is the custodian of the fund on which the liens are asserted to exist who should be bound by the judgment to pay the sum to the rightful owners. This action gives him knowledge of the claims of the parties, and lie should have, and undoubtedly desires, the judgment of the court as to whom the fund belongs.

What we have written seems to us elementary law, and the only question is whether a party interposing a demurrer so plainly frivilous, should be permitted to plead anew. However, he may have some defense, total or partial, and so the judgment should be affirmed, with costs, and the demurrant given leave .to answer on the payment of the costs included in the interlocutory judgment and the costs of this appeal within twenty days .after notice of the entry of the order on this decision.

O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs, and the demurrant given leave to answer on payment of the costs included in the interlocutory judgment and the costs of this appeal within twenty days after notice of the entry of the order on this decision.


text:
    Ellen Callahan, Respondent, v. Michael O’Brien, Appellant, and John Graddy, Mary Leahy, Margaret Neville, Catherine Burns, Ellen O’Brien, John O’Brien, Ann Murphy, Margaret Jameson and John Jackson, Respondents, Impleaded with Others.

      Distinction in the descent of real property acquired, by purchase and, that acquired, by descent — resident citizen and non-resident alien heirs — citizen heir compelled to trace his right through two non-resident alien ancestors.

    The collateral relatives, who are the heirs oí a citizen who has died intestate, seized of real estate which she acquired by purchase, though some of them be resident citizens and the others non-resident aliens, take such real property by descent in the same manner and proportion as if they had all been resident citizens; but real estate of which the intestate died seized, acquired b}' descent, descends to the heirs who are resident citizens to the exclusion of the heirs who are non-resident aliens.
    An heir who is a resident citizen is entitled to inherit although he be compelled to trace his right through two non-resident alien ancestors.
    Appeal by the defendant Michael O’Brien from ail interlocutory judgment of the Supreme Court, rendered after a trial at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 8th day of February, 1893, declaring the interest of the several parties to this action in certain real property and determining the rights of the parties therein.
    June 8, 1869, Catherine Callahan, a citizen of the United States and a resident of the State of New York, acquired by purchase and grant the absolute fee of No. 18 Perry street. The deed to her is duly recorded in the office of the register of the city and comity of New York in book No. 1119 of deeds at page 159.
    November 15, 1869, William Callahan, a citizen of the United States and a resident of the State of New York, acquired by purchase and grant the absolute fee of No. 58 Greenwich avenue. The deed to him is duly recorded in said register’s office in book No. 1123 of deeds at page 330. At the date of this deed said William Callahan and Catherine Callahan were husband and wife.
    February 27, 1873, William. Callahan died intestate and seized in fee of said lot, leaving lnm surviving William T. Callahan, his son and only heir, who was a citizen of the United States and a resident of the State of New York, and Catherine Callahan, his widow.
    March 26, 1888, said William T. Callahan died intestate, seized in fee of No. 58 Greenwich avenue, and leaving Catherine Callahan, his mother, his sole heir, who then became seized in fee of said lot.
    March 1, 1890, said Catherine Callahan died intestate and seized in fee of said two pieces of real estate. She left her surviving no ancestors nor descendants, but left the following collateral relatives: Ellen Callahan, a sister; John Graddy, a nephew, the only surviving child and heir of John Graddy, a deceased brother of Catherine; Ann Murphy and Margaret Jameson, nieces, the only surviving children of Anne Morrissey, a deceased sister of Catherine Callahan ; John Jackson, the only surviving child and heir of Ellen Jackson, a deceased daughter of said Anne Morrissey, he being a grandnephew of the intestate and a grandson of Anne Morrissey; Michael O’Brien, Mary Leahy, Margaret Neville, Catherine Burns, Ellen O’Brien and John O’Brien, nephews and nieces, the only surviving children and heirs of Margaret O’Brien, a deceased sister of Catherine Callahan.
    The plaintiff, Ellen Callahan, and the defendants Michael O’Brien and John Jackson are resident citizens of the United States, but all of the other litigants and their husbands and wives are citizens of the United Kingdom of Great Britain and Ireland, residing in Ireland, of which kingdom their parents and grandparents were citizens and residents.
    The Special Term held that the following persons were entitled to inherit the two pieces of realty as heirs at law of Catherine Callahan, deceased, in the following proportions: Ellen Callahan, six-twenty-fourtlis ; John Graddy, six-twenty-fourths; Ann Murphy, Margaret Jameson and John Jackson, two-twenty-fourths each; Michael O’Brien, Mary Leahy, Margaret Neville, Catherine Burns, Ellen O’Brien and John O’Brien one-twenty-fourth each.

      Abram Kl-'mg, for the appellant.

      William P. S. Melvin, for the plaintiff (respondent).

      Robert M. Boyd, Jr., for Ann Murphy and Margaret Jameson defendants (respondents).
   Follett, J.:

One of the questions presented by the record being whether the rights of the litigants are the same in both pieces of land, it will be most convenient to consider to whom each parcel descended, so we will first determine the rights of the parties in No. 18 Perry street, which the intestate acquired by purchase and grant.

Section 4 of chapter 115 of the Laws of 1845, as amended by chapter 38 of the Laws of 1875, provides :

“§4. If any alien resident of this State, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this State, has died, or shall hereafter die, leaving persons who, according to the statutes of this State, would answer the description of heirs of such deceased person, or of devisees, under his last will, and being of his blood, such persons so answering the description of heirs, or of such devisees of such deceased person, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold, as heirs, or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. But if any of the persons so answering the description of heirs, or of such devisees, as aforesaid, of such deceased person, are males of full age, they shall not hold the real estate hereby made descendible or devisable to them as against the State, unless they are citizens of the United States, or, in case they are aliens, unless they make and file in the oifice of the Secretary of State the deposition or affirmation mentioned in the first section of this act.”

The counsel for the plaintiff insists that John Jackson did not inherit because his deceased mother and deceased grandmother were non-resident aliens, and being compelled to trace his right through two such ancestors, is not within section 22 of chapter 2 of part 2 of the Revised Statutes, which jiro vides: “ § 22. No person capable of inheriting under the provisions of this chapter shall be precluded from such inheritance by reason of the alienism of auy ancestor of such person.” The contention of the counsel was decided adversely to him by the Court of Appeals in McCarthy v. Marsh (5 N. Y. 263). Jackson is entitled to inherit.

The eleven, persons whom the Special Term held inherited this parcel “ answered the description of heirs of such deceased person ” (Catherine Callahan) “ according to the statutes of this State,” and all of them took the land by inheritance, unless the contention of the counsel for the appellant that the eight non-resident aliens did not take jointly with the three citizens, but that the citizens took to the exclusion of the aliens.

The statute quoted makes no such distinction. It does not provide that in case an intestate dies leaving no persons answering the description of heirs who are citizens, that in that case aliens answering such description may take, nor does it provide that in case an intestate dies leaving persons answering the description of heirs, some of whom are citizens and others aliens, that only the former can take, but the language of the section is comprehensive enough to include citizens and aliens, which is, we think, what the Legislature intended to do.

Luhrs v. Eimer (80 N. Y. 171) is not to the contrary. That case arose over the land of a naturalized citizen who died intestate in 1866, before the amendment of chapter 115 of the Laws of 1845. The question involved was whether aliens so related to the decedent, a naturalized citizen, as to answer the description of heirs inherited by force of chapter 115 of the Laws of 1845, and it was held that they did not. It was said in that case: “ The fourth section declares that if any ‘ alien resident,’ who has taken or shall take a conveyance of lands, has died or shall die, leaving persons, who, according to the statutes of this State, answer the description of heirs, such persons, whether citizens or aliens, shall be capable of taking and holding as heirs of the ‘ deceased alien,’ etc.” This, remark tends to support the construction we have given' the section.

The result is that No. 18 Perry street descended to the litigants, in the following proportions : The plaintiff and John Graddy took six-twenty-fourths each; the children of Margaret O’Brien took one-twenty-fourth each; the children and grandson' of Anne Morrissey took two-twenty-fourths each.

This brings us to the consideration, to whom did No. 58 Greenwich avenue descend ? As before stated, .Catherine Callahan, the intestate, acquired this parcel by descent from her son.

Does land acquired by descent by “ any alien resident of this; State or any naturalized or native citizen of the United States,” descend to aliens by force of the section hereinbefore quoted ? The language of the statute seems to us so explicit as not to admit of serious question. It is: “ If any alien resident of-this State, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this State,” etc. The idea that- the statute embraces only lands acquired by purchase is emphasized by the use of the words, “purchase and take, a conveyance of real estate,” which seems to exclude from the operation of the section lands acquired by descent. The word “ purchase ” has a well-settled meaning at common law and in the jurisprudence of this State. Words and terms having a precise and well-settled meaning in the jurisprudence of the country are to be given that meaning when used in its statutes, unless it is plain that they were ■ used in a different sense. (Cruger v. The Hudson River Railroad Co., 12 N. Y. 190, 198; Wynehamer v. The People, 13 id. 378, 427; McCool v. Smith, 1 Black, 459; Stephenson v. Higginson, 3 H. L. Cas. 638.)

We cannot regard the use of these words “purchase and take a conveyance of real estate ” as accidental nor as used in a different sense than theretofore given them in the real property law of this State. The same words are found in chapter 115, Laws of 1845, and in chapter 261, Laws of 1874.

We are asked to give controlling force to the words: “ The lands' •and real estate owned and held by such deceased alien or citizen at the time of his decease,” and hold that they embrace all lands, however acquired. The decedent having acquired one piece of land by purchase and conveyance and another by descent, it is urged that both fall within the section and both descend to aliens. Such a ■construction seems to us unnatural and to warp the section from its true meaning.

It would be as reasonable to hold that in case a person had •acquired parcels of land by purchase and others by descent, and had died seized only of those acquired by the latter mode, that they would descend to his alien relatives answering to the description of heirs, because the intestate had once had lands acquired by purchase. How the acquisition of one parcel by purchase can affect the right of aliens to succeed to another acquired by descent we are unable to see. The reasoning in Stamm v. Bostwich (122 N. Y. 48), is an answer to this argument. Whether non-resident aliens take by force of the statute under consideration lands acquired by descent was discussed in Branagh v. Smith (46 Fed. Rep. 517), and the conclusion was reached that the statute applied only to lands acquired by purchase, and was not applicable to lands acquired by descent.

We think that the non-resident aliens took no interest in the land acquired by the intestate by descent, and that the avails arising from the sale of that parcel must be distributed among the heirs who are citizens of the United States. This leads to a modification of the judgment so far as it affects the piece of land under consideration.

The judgment, so far as it relates to No. 18 Perry street, should be affirmed, but in so far as it relates to No. 58 Greenwich avenue it should be modified by providing that one-third of the avails he distributed to the plaintiff, one-third to John Jackson and one-third to Michael O’Brien, and that the judgment, as so modified, should be affirmed, without costs in this court to any party.

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

Judgment modified as directed in opinion, and, as modified, affirmed, without costs in this court to any party.


author: Parker, J.:

text:
    Dora Dauscha, Appellant, v. John L. Brower and Benjamin Farrington, Respondents.

      Appeal — no reversal in civil actions for errors in the charge to the jury, in the absence of exceptions — a request to go to the jury on all the issues is not sufficient.

    It is a settlid rule that on review, cases will be considered on the theory on which they were tried. The court may err in its charge in civil cases, but a reversal cannot be had in the absence of an exception.
    Upon the trial of an action brought against a sheriff and continued against his indemnitors, it appeared that on August 6, 1889, one Buehring executed and delivered to the plaintiff a bill of sale of certain personal property, described in a schedule, which purported to assign all such property and all Buehring’s right, title and interest therein and thereto.

      The plaintiff entered into the possession of such property, and subsequently a creditor of a lithographic publishing company caused an attachment to be levied thereon, claiming it to be the property of his debtor.
    The defendant proved the incorporation of the lithographic company under the laws of the State of Illinois, and Buehring testified that the property in dispute belonged to that corporation at the time of the execution of the bill of sale. Written evidence was also admitted; for the creation of which Buehring was responsible, which tended to contradict his testimony in regard to the ownership of such property.
    The counsel for the defendant, on his motion to dismiss the complaint, assumed that there was no dispute as to the ownership of the property, and his statement was not controverted. The plaintiff’s counselasked leave to go to the jury on the question as to whether the bill of sale was given by Buehring individually or on behalf of the corporation, and “ on all the issues in the case and on the issue of the good faith of our purchase from Buehring individually, or president of the company.”
    There was no question as to the good faith of the plaintiff, and upon the conclusion of the evidence the court directed a verdict for the defendants.

      Held, that the question could properly have been submitted to the jury as to whether Buehring or the lithographic company was the owner of the property, but having failed to apprise the trial court of such issue when the situation called upon him to do so, the plaintiff could not insist on appeal that the court committed an error ;
    That, under the circumstances, the request to go to the jury on all the issues was insufficient. (Follett, J., dissenting.)
    Appeal by tbe plaintiff, Dora Dauscba, from a judgment of tbe Supreme Court in favor of tbe defendants, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 22d day of November, 1892, upon a verdict directed by tbe court at tbe New York Circuit, and from an order made on tbe 14th day of November, 1892, denying the plaintiff’s motion to set aside tbe verdict and for a new trial upon tbe minutes and tbe exceptions in tbe case.

      John Fennel, for the appellant.

      Charles De Ua/rt Brower, for the respondents.
   Parker, J.:

August 6, 1889, Fred Buehring executed and delivered to tbe plaintiff a bill of sale of tbe personal property which is tbe subject of this controversy. It purported to assign “all the property-described in tbe annexed schedule and all my right, title and interest therein and thereto, as also the good will of, and to The American Lithographer and Printer, and the Directory of the Lithographic and allied trades, etc., now being published, issued and circulated by me, under the name of the Lithographic Publishing Company.”

Plaintiff entered into possession.

Subsequently a creditor of the “ Lithographic Publishing Company” caused an attachment to be levied upon the property described in the bill of sale, claiming it to be the property of its debtor.

Thereupon this action was commenced against the sheriff, and has been continued against his indemnitors who have been substituted as defendants in his stead.

On the trial the defendant proved the incorporation of the “ Lithographic Publishing Company ” under the laws of the State of Illinois, and Buehring testified that the property in dispute belonged to that corporation at the time of the execution of the bill of sale.

While no oral testimony was presented contradicting Buehring in such respect, there was written evidence, for the creation of which he was responsible, which tended to contradict him. ' •

And, after examining and considering all the evidence in the case, the conclusion is reached that it could properly have been submitted to the jury to say whether Buehring or the “ Lithographic Company ” was the owner, with directions to render a verdict in favor of plaintiff or defendant as they should find upon that question.

But the case does not appear to have been tried by the plaintiff upon that theory, nor does it appear that his counsel suggested to the .court that there were facts and circumstances proven, which so far contradicted the testimony of Buehring as to present a question for the jury as to the ownership of the chattels.

The counsel for the defendant on his motion to dismiss the complaint assumed there was no dispute as to the ownership of the property, and his statement does not seem to have been controverted.

Had the plaintiff asked leave to go to the jury on the question of fact which we have suggested, a denial of his motion would have been error. If the request had been made it would doubtless have been granted.

Instead, counsel said, “ I ask leave to go to the jury on the question of fact, as to whether this bill of sale was given by Hr. Buehring individually or in behalf of the corporation.”

There was uo dispute whatever in that respect. The writing tells the whole story, and the only questions arising from it are for the court.

His request continued, “ I also ask for leave to go to the jury on all the issues in the case, and on the issue of the good faith of our purchase from Buehring individually or president of the company.”

The good faith of the plaintiff was not questioned.

There was an issue which could have been presented, as we have already pointed out, but it was not in the mind of the counsel and, therefore, not suggested. Now, having failed to apprise the trial court of it when the situation called upon him to do so, he cannot insist that the court committed an error.

It is a settled rule that on review, cases will be considered on the theory on which they were tried. The court may err in its charge in civil cases, but a reversal will not be had in the absence of an exception. Why ? Because the exception would have pointed out the error, and thus the court would have had an opportunity to correct it. So an exception taken to an adverse ruling, where the question was objectionable, and a specific ground ■ of objection, but not the proper one, was assigned, will not avail the objector, for the court is only chargeable with the duty of rightly determining the points presented.

Similar illustrations, all leading to the same result, can be multiplied. None in opposition to that general rule can be cited. Cases may be found which have been reviewed where there was only a general request to go to the jury. But they will be found to be cases in which either the point was not taken that the issuable fact was not presented to the mind of the court, or the general request stood alone, and was thus deemed to have raised the presumption that the specific question was presented — a presumption which cannot stand against overwhelming evidence to the contrary.

Here it does not stand alone. It forms part of a sentence in which is presented a request to go to the jury on a specific question, and is sandwiched between two specific requests. Clearly it was-made use of because a convenient formula to be employed in the absence of ideas. From the beginning to the end of the record. there is nothing to suggest that counsel even suspected the issue which we have asserted. Certainly the evidence is overwhelming that he did not suggest it, and it overbears the presumption, if any arose from the general request made, to the effect that the point now relied upon was before the court.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., concurred; Eollett, J., dissented.

Judgment affirmed, with costs.


text:
    William A. Hardt and Others, Respondents, v. Moses S. Levy, Appellant, Impleaded, etc.

      An action by the general creditors of a firm, for the appointment of a receiver and a distribution of its assets, is maintainable against a limited partnership —not against a general partnership — effect of the death of the special partner— when a certificate of renewal creates a new partnership — creditors’ rights — estoppel.
    An action brought by certain general creditors of a firm in behalf of themselves and of all other creditors thereof, having for its object the appointment of a receiver and ultimately the ratable distribution of the assets of the partnership, cannot be maintained against the members of a general partnership, although it may be maintained against the persons forming a limited partnership, after • its insolvency.
    A limited partnership, under the firm name of Levy Bros. & Co., was duly formed April, -1884, with Julius and Augustus H. Levy as general partners, and Adolph Levy as special partner. In a little over a year the special partner died, but the business was continued for the full term of the co-partnership agreement, at the end of which an instrument was executed purporting to be a certificate of renewal, bearing date the last day of the term, but verified and recorded several days later. When such time had expired by limitation, another instrument, purporting to be a certificate of renewal, stating the names of the original partners, and also naming Moses S. Levy as a new general partner, and Augustus H. Levy, as executor of the estate of Adolph Levy, deceased, as a special partner, was filed and recorded.
    On the trial of an action brought by certain creditors of the firm on behalf of themselves and all other creditors thereof, for the appointment of a receiver and for other relief, it was adjudged that the certificate did not operate to renew and continue the prior special partnership, but that it contained facts sufficient to constitute a new limited partnership, and that such was its legal effect.

      Held, tliat the special partnership was terminated upon the death of the special partner, and as no provision was made in the articles of co-partnership to continue it in the manner authorized by the statute in the event of the death of the special partner, it could not be revived.
    The certificate of renewal and affidavit did not state that a contribution had been made in cash of §100,000 by the special partner for the purposes of the partner•sliip about to be created, but in effect that more than six years prior to that time a limited partnership was formed, at which time that sum was contributed by a person now deceased, no part of which had been withdrawn by, or paid or transferred to him or his estate.

      Ilehl, under the circumstances, assuming that the court had the power to spell out of the facts recited in the certificate an attempt to form an original limited partnership, when nothing of the kind was intended by any of the parties, that the certificate did not create a new special partnership.
    When a limited partnership, by force of the statute, becomes a general partnership, the creditors of the latter cannot treat the limited partnership as in force as to them and have a remedy accordingly.-
    It was not shown that the defendants, except by the filing and publication of the certificate, ever held themselves out as constituting a limited partnership, or that the plaintiffs or any other creditors, prior to becoming such, knew or supposed that the partnership of the defendants was statutory, or that any creditor ever gave credit to the firm believing it to be a limited partnership or in any way acted upon the faith of any representation that it was such.

      Held, that the defendants were not estopped from asserting that their partnership was general.
    Appeal by the defendant, Moses S. Levy, from a judgment of the Supreme Court in favor of the plaintiffs, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 30th day of March, 1893.

      Benjamin N. Gardozo, for the appellant.

      Blumenstiel ds llirsch, for the respondents.
   Parker, J.:

■ The plaintiffs, as general creditors of a firm of which the defendants are members, instead of proceeding in actions at law to secure their respective claims, instituted this action in behalf of themselves and all other creditors of the firm, having for its object the appointment of a receiver and ultimately a ratable distribution of the assets of the partnership.

Such a suit cannot be maintained against the members of a general partnership, but it was long ago held in Innes v. Lansing (7 Paige, 583), that it might he against the persons forming a limited partnership after insolvency.

That case has been so far followed that the rule it declares must be deemed established. The opinion also asserts that a creditor may, if he so elects, proceed at law to enforce collection of his debt. Subsequently it was so decided in Van Alstyne v. Cook (25 N. Y. 489). These plaintiffs chose to proceed in equity, as they may if the partnership be limited, and may not if it be general.

Which of the two it was presents the principal legal question involved. The facts are undisputed, and are briefly as follows.: A limited partnership under the firm name of Levy Bros. & Co. was duly formed in April, 1884, with Julius and Augustus II. Levy as general partners, and Adolph Levy as special partner.

In a little over a year the special partner died, but the business was continued on for the full term, when an instrument was executed purporting to be a certificate of renewal, bearing the date of the last day of the term, but verified and accorded several days later. When such term had expired by limitation, a new instrument, purporting to be a certificate of renewal, stating the aiames of the original partners, and also naming Moses S. Levy as a new general partner, was filed and recorded. It was in fonn following :

“Levy Bros. & Co. Notice of renewal of limited partnership. This is to certify that the limited partnership formed by the undersigned Julius Levy and Augustus II. Levy with Adolph Levy, on the 11th day of April, 1884, pursuant to the provisions of the statutes of the State of New York, under the firm name of ‘ Levy Bros. & Co.,’ and which by its terms expired on the 31st day of December, 1887, and which was renewed and continued in pursuance -of said statutes on the 31st day of December, 1887, has this day been l-enewed and continued in pursuance of said statutes by the said Julius Levy, Augustus H. Levy and the undersigned Moses S. Levy, and the said Augustus II. Levy, as executor of the estate of Adolph Levy, and the terms of said renewal and continued partnership are as follows:

“ First. The name or firm under which said renewal or coartinued partnership is to be coaiducted is ‘ Levy Bros. & Co.’

Second. The general oiature of the business to be transacted by said renewal and continued partnership is the manufacturing and selling of clothing at wholesale; that said business is to be conducted in the city of New York.

Third. The names of all the general and special partners therein are as follows : Julius Levy, Augustus H. Levy and Moses S. Levy are the general partners, and Augustus H. Levy, as executor of the estate of Adolph Levy, deceased, is the special partner ; that all of the said general partners and the special partner reside in the city of New York, county and State of New York.

Fourth. The amount of capital which the said Adolph Levy hereinabove named, as the special partner heretofore contributed to the common stock, and which has been actually and in good faith paid in cash, is the sum of one hundred thousand dollars. Such contribution and payment were made at the commencement of the limited partnership by the said special partner. No part of said sum of one hundred thousand dollars has been withdrawn by or paid or transferred to, the said Adolph Levy, the said special partner, nor has any part thereof been withdrawn by or paid or transferred to his estate, but the whole amount thereof remains in said limited partnership wholly unimpaired, and the whole amount thereof, namely, one hundred thousand dollars, is contributed by the said Augustus H. Levy, as executor of the estate of said Adolph Levy, deceased, as said special partner, to the common stock of such renewed and continued limited partnership.

“ Fifth. The partnership hereby renewed and continued is to commence on the 1st day of January, 1891, and is to terminate on the 31st day of December, 1893. In witness whereof, the parties above named have hereunto severally subscribed their names, this 31st day of December, 1890.”

This writing was executed, acknowledged, verified, filed and recorded as provided by the statute.

The learned trial court reached the conclusion that the certificate did not operate to renew and continue the prior special partnership, because it declared that a new general partner had been admitted to the firm, which brought it within that provision of the statute which declares : “ Every alteration which shall be made in the names of the general partners * * * and the death of any partner, whether general or special, shall be deemed a dissolution of the partnership. * * * And every such partnership which shall be carried on after such alteration shall have been made, or such death shall have occurred, shall be deemed a general partnership in respect to all business transacted after such alteration or death. * * * ” (4 B. S. [8th ed.] 2493, § 12.)

It was further determined, however, that while the certificate purported to renew and continue an existing limited partnership, it contained facts sufficient to constitute a new limited partnership, and such was its legal effect, and for that reason judgment was entered in favor of the plaintiffs for the relief prayed for in the complaint.

The primary object of the act authorizing limited partnerships which first found a place among the statutes of this State in 1822, was to encourage those having capital to enter into partnership with those having skill and practical business experience, by restricting the responsibility of the former to the sum actually contributed to the firm.

The secondary object was the protection of those dealing with the partnership, and that was attempted to be reasonably secured by requiring the special partner to pay in cash the sum contributed by him; authorizing the general partners only to transact the business of the partnership; prohibiting the special partner from binding the partnership, or his employment as agent, attorney or otherwise to transact any business on account of it; proclaiming that only the names of the general partners shall be inserted in the firm name; providing for the bringing of suits either by or against the general partners, as' if there were no special partners; preventing the special partner withdrawing any portion of the sum contributed by him during the continuance of the partnership, or any of its effects, except actual profits made upon the original capital; declaring void as against creditors of the partnership every sale, assignment or transfer of any of the property or effects of the firm, or' of the property or effects of the general or special partner, after the firm or himself has become insolvent, or in contemplation of such insolvency, with an intention of giving a preference either to a creditor of the firm or to a creditor of the general or special partner; debarring the special partner from claiming as a creditor until the claims of all other creditors shall be satisfied, except for claims contracted pursuant to section 11; requiring the making of a public record containing tbe name of tbe firm; general nature of tbe business done ; names of all tbe general and special partners, distinguishing which are general and which are special; amount of capital contributed by the special partner and the term of the partnership. Thus enabling all who might desire to ascertain the principal features of the partnership.

To guard against deceit, it was provided that if any false statement be made in the certificate or affidavit, all the persons interested in the partnership shall be liable for all the engagements thereof as general partners.

It was further provided that if any partnership be renewed or continued otherwise than as the act provides, or if there be an alteration in the names of the general partners, in the nature of the business, in the capital contributed by any special partner, or the death of any partner, and the business be thereafter carried on, as to such business it shall be deemed a general partnership.

In case of a violation of the provisions of sections 20 and 21, which relate to the disposition of partnership property after insolvency, or in contemplation thereof, the special partner participating therein or consenting thereto is made liable as a general partner.

Thus it appears that a compliance with the provisions of the statute was attempted to be secured, either by imposing upon all the partners, both general and special, a liability for the partnership engagements, or declaring the partnership a general partnership. The statute nowhere suggests that, in the event of insolvency, the assets of the partnership shall be marshaled and ratably distributed among the creditors of the firm. It does not provide for, nor in terms countenance, such a suit.

Chancellor Walworth, in Innes v. Lansing (supra), founded upon sections 20 and 21, prohibiting the giving of preferences, the conclusion that the Legislature could not have intended that a creditor of an insolvent limited partnership should be compelled to proceed to judgment at law, the necessary effect of which might be to give him a preference over other creditors, and accordingly held that equity would take jurisdiction in such case.

While his determination that such a suit would lie has ever since been followed, it was expressly held in Van Alstyne v. Cook (supra) that the statute referred to preferences voluntarily given by the partners, and does not apply to judgments recovered against the members of a limited partnership who may be sued before or after insolvency as other natural persons, and the judgments obtained enforced out of the partnership assets, although the effect may be to deprive other creditors from securing any portion of their claims. It is apparent, therefore, that there is nothing in the statute, nor in the construction so far given to it, which aims to prevent a diligent creditor from obtaining that advantage which the law universally sanctions, or which is intended to assure those dealing with a limited partnership of a ratable proportion of the avails of its assets, in the event of insolvency. A strained construction of certain of the provisions of the statute should not, therefore, be made for the purpose of affording a remedy which it nowhere contemplates.

That which the parties did should be examined in the light of the exactions of the act, and if found to have been a substantial compliance with its requirements, either -for the purpose of continuing the partnership first formed, or creating a new limited partnership, the plaintiff’s position is well grounded, otherwise not, unless their further contention be well taken, which is that whether a valid limited partnership exists or not, the defendants cannot be heard to . deny its existence.

It will tend to avoid confusion if the question of estoppel be discussed independently of those relating to the validity, or invalidity, of the alleged limited partnership.

We have then for further consideration three questions:

(1) Was the original limited partnership legally continued ?

(2) If not, did the certificate last made operate to create a new limited partnership ?

(3) If the partnership be general, are defendants estopped from asserting that such is the fact?

The trial court was of the opinion that the original limited partnership was not legally renewed and continued, because the certificate expressly recited the admission to the firm of another general partner.

The happening of another event necessarily effected the same result, and we will first advert to it.

No proposition can be plainer than that there cannot be a revival and continuance of that which does not exist. Unless theré was a valid limited partnership at the time of the making of the certificate intended to, effectuate a renewal in December, 1887, there was nothing for it to operate upon. A renewal may continue, but cannot give life. Adolph Levy, the special partner, died more than a year apd a half before that time.

In all cases of general partnership the death of a member marks a dissolution of the firm. (Kennedy v. Porter, 109 N. Y. 526-549.) Chief Judge Ruger, in delivering the opinion of the court, said in part, touching agreements in partnership articles providing for a continuing of the partnership in the event of the death of one of the members : “ "We do not believe that any provisions made beforehand in reference to the death of a partner, or any agreements or arrangements made subsequently to his death, can prevent this dissolution. * * * As the partner who has died cannot by possibility continue a member of the firm, so any firm of which he is not a member, whether it contains his executors or his children, cannot be the same firm as that of which he was a member. All these agreements and arrangements, and all that can be made for a similar purpose, are, in fact, only bargains for the creation of a new partnership when the old one ceases to exist.”

Section 12 of the Limited Partnership Act (4 R. S. [8th ed.] 2493) provides that the death of a partner, “ whether general or special, shall be deemed a dissolution of the partnership,” unless otherwise provided in the articles of partnership, when it may be continued under certain conditions. As there does not appear to have been any such stipulation in the articles of partnership, the exception is not applicable. The same section further declares that “ every such partnership which shall be carried on after * * such death shall have occurred, shall be deemed a general partnership in respect to all business transacted after * * such death.”

It thus appears that by operation of the very statute under which the partnership was created it became dissolved upon the death of the special partner; the rights and privileges, the duties and liabilities of the partner ceased as to all future transactions to be governed by the provisions of the act.

As no provision was made in the articles of partnership to continue it in the event of death in the manner authorized by the statute, there was no method by which the old partnership could have been revived. It will be observed that the observations which we have quoted from Kennedy's case are applicable to this situation.

Necessarily the partnership existing after the filing of the second certificate was general, and for the reasons already assigned the making of the third certificate did not operate to renew a limited partnership for there was none' in existence.

The ground on which the trial court rested its determination that the last certificate did not effectuate a renewal of the limited partnership, assuming there was one in existence, is well supported, for the statute provides that any alteration in the names of the general partners shall work a dissolution of the partnership, and it shall henceforth be general. Necessarily it should be so, for the admission of new general partners changes the partnership. It is no longer the same partnership' as before, and the rules regulating an original partnership should govern its formation.

We are thus brought to the question whether the certificate of renewal can be considered as the original formation of a limited firm.

That the parties to it intended to renew an existing partnership is apparent from it. Had the partnership which was by it sought to be continued been in fact a limited partnership, the object aimed at would have been accomplished had there been no change in the partners. And it might be urged that the courts cannot create for the parties a different contract than they made for themselves. But we shall not discuss that subject as we prefer to dispose of the question on the ground that, assuming the' courts have the power to spell out of the facts recited in the certificate an attempt to form an original limited partnership when manifestly nothing of the kind was intended by any of the parties, still such effect cannot be given this certificate because it is not in substantial compliance with the statute.

A careful analysis of the facts recited was made by the learned trial judge, and a comparison of the result attained, with the statutory requirements, was made for the purpose of showing how nearly it conforms to the demands of the statute. With the exception of the clause respecting the contribution of special capital, this was necessarily so, because “ the evidence of the renewal or continuance must be furnished in the same manner as that of its formation. The same formality must be observed.” (Bank v. Colgate, 120 N. Y. 381.)

But with respect to the capital contributed by the special partners, the statements must necessarily differ.

When attempting to create an original limited partnership the statute requires that the special partner pay in, in cash, the amount of his contribution. This requirement cannot be satisfied by the turning- over of merchandise or other property of the value of the special partner’s contribution. (Van Ingen v. Whitman, 62 N. Y. 513, 519; Bank v. Sirret, 97 id. 320-328.)

Nor can it be done in any of the many ways which the ingenuity of man has suggested, other than a simple compliance with its terms by the payment of cash. Further, the affidavit annexed, to the certificate must show that it has actually been done. So that those dealing with the partnership may know that at the time of the creation of the partnership there was in cash, available for the purpose of the partnership, the amount stated iii the certificate.

But when a limited partnership is renewed new capital need not be contributed. It may be that the capital contributed has become seriously impaired, but that does not deprive the parties of the right of renewal; the privilege of prolonging the life of the partnership. And for the purposes of renewal the statute is satisfied by statements in the certificate and affidavit to the effect that when the limited partnership about to be renewed was originally formed, the special partner contributed the amount specified in the certificate, and has not since withdrawn any portion of it. It need not be stated that the capital remains unimpaired, and if it be done it will be treated as surplusage. (Bank v. Colgate, supra.)

Now the certificate and affidavit before us state, not that a contribution had been made in cash of $100,000 for the purposes of the partnership about to be created, but in effect that more than six years ago a limited partnership was formed, at which time that sum was contributed by one Adolph Levy, now dead, no part of which had been withdrawn by or paid or transferred to him or his estate. A statement in so far as the capital of the special partner is concerned sufficient to effect a renewal of an existing limited partnership, but not to create one.

It is said that for all that appears in the certificate before the-court the contribution was in cash, for it is stated in one portion of it that the said $100,000 is contributed by the said Augustus H. Levy, as executor of the estate of the said Adolph Levy, deceased.

It is apparent from that which precedes as well as that which follows the assertion of contribution by the executor, that the $100,000 thus alluded to was the sum paid in by the special partner in 1884, and not thereafter withdrawn.

Indeed, the certificate considered as an entirety, presents no basia for the assertion that the executor at that time paid in the sum mentioned, or intended to have it understood that he had. But if it was possible to isolate the expression referred to from other assertions in the certificate touching the contribution of capital, and by whom contributed, still it would fall short of the requirements of the statute. It commands something more than a statement hi the certificate of the amount of the special partner’s contribution. An affidavit must be filed declaring that such contribution has been actually and in good faith paid in cash. The affidavit not only fails to show that the executor as special partner paid such sum in cash,, but it distinctly asserts to the contrary. It declares that the sum specified in the certificate of the formation of the said limited partnership to have been contributed by said special partner in said partnership to the common stock, to wit, the sum of one hundred thousand dollars by the said Adolph Levy (which the certificate shows was paid in over six years before), has been actually and in good faith paid in cash; that no part of said sum of one hundred thousand dollars has been withdrawn, but the whole thereof, to wit, one-hundred thousand dollars, remains wwested in said limited j?a?'tnership wholly unimpaired, and has been contributed by said special partner as capital to the common stock of said renewed and continued limited partnership.”

It thus appears on the face of the papers that there was no payment in cash, but instead that which was contributed was invested in said limited partnership ” (as the partnership is described in the affidavit), but which was a general partnership, as we have already-shown.

While it is possible to change an existing general partnership into* a limited one, the property of the general partnership cannot, nor can any part of it, be turned over in lieu of cash to make up the amount to be contributed by the sj>ecial partners. Payment in cash into the partnership will alone satisfy the demand of the statute. (Bank v. Sirret, 97 N. Y. 320; Van Ingen v. Whitman, 62 id. 513.)

If the views so far expressed be correct, it follows that the partnership of the defendants is general, and not limited, and there remains for consideration the question of estoppel.

It is urged that the defendants having failed to create a limited partnership as they intended to do, and supposed they had done, they not only became general partners and liable as such for the ■debts of the firm, which is the penalty imposed by statute for a failure to comply with its ¡xrovisions, but in addition they can be lawfully proceeded against as a limited partnership by such creditors ■as may prefer that remedy.

In other words, in so far as the general creditors are concerned, these defendants may be proceeded against by a portion of them as general partners, and by another portion as if a limited partnership had been constituted.

The ¡xenalty of a general partnership was imposed upon those •attempting but failing to renew a statutory partnership for the benefit of the creditors of such firm.

No other penalty was added or suggested, and it would be strange indeed if an effort to comply with the statute, and that alone, should visit the members of the firm with the responsibilities of a general partnership, and at the same time deny to them the right to say to a creditor, whose only knowledge, if he have any, of the attempt to form a limited partnership was derived from the record, “The ■statute declares for your benefit that £ I am a general partner.’ ”

' The case of Durant v. Abendroth (97 N. Y. 132) does not apply.

Judge Raparlo did say in that case, and correctly, that “ if it (the firm) had undertaken to make an assignment with preferences, such ■assignment could not have been sustained, on the ground of the violation of the statute. That violation could be taken advantage of •only by creditors, and its consequence simply was to give them Recourse against the special partner personally, as if he had been a general partner.”

But the action did not arise under sections 11 or 12, which declare that the effect of certain acts shall be to render that which was a limited partnership general. It arose under section 8, which provides that “No such partnership shall be deemed to have been formed until a certificate shall have been made, acknowledged, filed and recorded, nor until an affidavit shall have been filed as above directed ; and if any false statement shall be made in such certificate, or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners.”

It will be observed that the section quoted does not provide that the effect of a false statement shall be to make the partnership general, but it attempts to secure the creditors by providing that in such case all the partners, whether general or special, shall be liable for all the engagements of the firm.

And the construction given to that section by the case cited was,, in substance, that when a certificate and affidavit regular in form are filed, but the statements made therein are false in fact, the limited partnership continues to exist, but with a penal liability imposed upon the special member of the firm.

It is apparent, therefore, that DuranBs case does not support the contention that when a limited partnership by force of the statute becomes a general partnership, as provided in section 12, the creditor may still, if he so wills, treat the limited partnership as in force, as to him and have a remedy accordingly.

Unembarrassed, then, as this case is by any previous binding adjudication, the question of estoppel can be quickly disposed of.

There is not in the record a word of testimony suggesting that the defendants, except by the filing and publication of a certificate-void upon its face, ever held themselv.es out as constituting a limited-partnership. It does not contain a hint that these plaintiffs, or any other creditor, knew or supposed, prior to becoming such, that the partnership of defendants was statutory. There is no testimony to the effect that any creditor ever gave credit to the firm as being a limited partnership, or in any way acted upon the faith of any representation that it was such. The facts upon which to rest an estoppel must be proved; they will not be. presumed. Here there is proven but one of the several facts essential to its support, and that consists of the record by which the defendants undertook to create a limited partnership.

It will not be presumed'that the creditors had knowledge of the existence of the record, but if it should be, it would not avail them, because it is void on its face, and haying knowledge of its contents, they would he charged with knowledge of its invalidity.

The judgment should be reversed, with costs to the appellant to abide the event.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment reversed, with costs to appellant to abide event.


author: O’Brien, J.:

text:
    Evelyn McConnell, Plaintiff, v. William Bostelmann, Defendant.

      City — when liable for injuries sustained from ice on its street —when an individual creating the nuisance is liable — a question for the jury.

    A person injured through the neglect of a city in not removing snow and ice which have accumulated upon a sidewalk, or in not repairing a street which is out of repair, has a remedy against the city.
    A person who, without special authority, materially obstructs a street or highway, or renders its use hazardous by doing anything upon, above or below its surface, is guilty of a nuisance, and an individual sustaining special damage therefrom, without any want of due care to avoid injury, has a remedy by action against the author or the person continuing the nuisance.
    In an action brought to recover damages for personal injuries sustained by the plaintiff in slipping upon ice formed upon the sidewalk in front of the promises owned by the defendant, it was alleged in the complaint that the premises were unlawfully constructed with an awning over the street, from the roof of which the water flowed into a gutter on the outer edge, and from such gutter was discharged through short spouts or elbows in mid-air, more than twelve feet above the sidewalk, and descended and flowed, or was blown upon the sidewalk and froze thereon, rendering the sidewalk slippery and unsafe; that such structure or awning was an encroachment and an obstruction upon the street; that by reason thereof the water from the roof was discharged upon the highway, froze upon the sidewalk and formed the ice which caused the plaintiff’s fall and her subsequent injuries, and that the defendant permitted the sidewalk to remain in such slippery condition, and that the plaintiff’s injuries were received in consequence of such negligence.
    The evidence showed that on March 4, 1891, it snowed and turned to sleet, and up to midnight four and two-tenths inches of snow had fallen. On the fifth, the day of the accident, which happened in the afternoon, it was freezing in the shade and thawing in the sun. The plaintiff, with a number of other people, came off a train, crossed a ferry and was going up the street when she slipped and fell. The awning posts were covered with ice, and a witness testified that there was a sheet of ice from the fresh water that had recently fallen; that quite a volume of water was coming down, which made the ice and sidewalk slippery.
    The complaint was dismissed by the trial court on the ground that the city and not the defendant was liable.

      Held, that such dismissal was improper, as the evidence tended to prove that the defendant was maintaining a nuisance, which was the proximate cause of the plaintiff's injuries, and presented a question for the jury.
    The distinction between actions for maintaining a nuisance and actions for negligence, considered.
    Motion by tlie plaintiff, Evelyn McConnell, for a new trial upon exceptions ordered to be heard at the General Term in the first instance, upon a dismissal of the plaintiff’s complaint at the New York Circuit on the 27th day of February, 1893.

      William L. Snyder, for the plaintiff.

      Thomas P. Wiokes, for the defendant.
   O’Brien, J.:

The action is brought to recover damages for personal injuries sustained by plaintiff in slipping upon ice formed upon the sidewalk in front of premises owned by defendant, situated at the corner of Liberty and West streets.

In addition to alleging the ownership of the premises, which was admitted, the complaint avers that such premises were unlawfully constructed, with an awning over Liberty street, from the roof of which the water flowed into the gutter on the outer edge, and from such gutter was discharging through short spouts or elbows in midair more than twelve feet above the sidewalk, and descended and flowed or was blown upon the sidewalk and froze thereon, rendering it slippery and unsafe. Such structure or awning, it is alleged, was an encroachment and an obstruction upon the street, and that by reason thereof the water from the roof was discharged upon the highway, froze upon the sidewalk, and formed the ice which caused the plaintiff’s fall and her subsequent injuries. In addition, she alleged that the defendant negligently permitted the sidewalk to remain in such slippery condition, and that plaintiff’s injuries were received in consequence of such negligence.

The character of the structure, awning and spouts, and the fact that Liberty street was much traveled and used by the public, were conceded. The evidence shows that on the 4th of March, 1891, it snowed and turned to sleet, and up to midnight four and two-tentlis inches of snow had fallen. On the fifth, the day of the accident, the sun was shining brightly and the wind was blowing, and it was freezing in the shade and thawing in the sun. The accident happened in the afternoon. A number of people came off the train, crossed the ferry, and were going up Liberty street, among whom was the plaintiff accompanied by a friend. These latter had crossed West street and were passing on Liberty, when the plaintiff slipped and fell.

The awning posts were covered with ice, and one of the witnesses testified that there was a sheet of ice from the fresh water that had recently fallen; that quite a volume of water was coming down; the water made the ice and sidewalk slippery.

Upon the motion to dismiss, the grounds were not suggested that the plaintiff had failed in her proof in showing that the structure was maintained by the defendant, or that the ice which formed on the sidewalk was the result of the water which was allowed to flow from the spouts and which either fell or was blown in the shape of spray upon the sidewalk. But the broader ground was urged — and it was upon this latter that the learned trial judge disposed of the case, dismissing the complaint — that the city and not the defendant would be liable.

In thus disposing of the case, the learned trial judge, among others, relied upon the cases of Moore v. Gadsden (87 N. Y. 84), and City of Rochester v. Campbell (123 id. 405). These, however, were cases of negligence, in which the liability was predicated upon the neglect of the defendant to discharge some duty which he owed to the plaintiff, and the principle of those cases is, that where a person is injured through the neglect in not removing snow and ice which has accumulated upon a sidewalk, or in not repairing a street which has got out of repair, his remedy is against the city, or, as said in Moore v. Gadsden (p. 87): “ If by reason of obstruction which it was the duty of the city or its officers to remove, it failed to do its office, the defendant cannot be made liable.”

This case, however, directly recognizes the liability of one who maintains a nuisance to respond in damages to one injured thereby; for as therein said: “ The general doctrine is, that the public are entitled to the street or highway in the condition in which they placed it, and whoever renders the use hazardous by placing anything upon it is guilty of a nuisance.” While, therefore, if this had been the ordinary case of the accumulation of ice and snow upon the sidewalk, or if the complaint was based upon negligence in allowing' such snow or ice to accumulate, then the cases referred to would have applied and the conclusion reached by the learned trial judge would have been right. But, as shown by the complaint and the proof, the plaintiff- in addition claimed, and the theory of her action was, that the injuries from which she suffered were the direct result' of the maintenance of a nuisance by the defendant.

The distinction between actions for nuisance and actions for negligence is very clearly pointed out in the case of Dickinson v. The Mayor (92 N. Y. 581), in the following language: “ The allegations in the complaint tend to establish that the defendant neglected to perform a duty by not removing the ice and snow from the walk. This was not an averment for keeping, maintaining and suffering a nuisance, but merely for negligence in not removing the ice and snow. The complaint was not for a positive wrong committed by the defendant, but for an injury sustained by reason of the defendant’s negligence. The authorities establish a distinction between an action for wrong and an action for negligence.”

While, therefore, the principle of law which is to govern in actions for negligence may be regarded as settled by the cases' referred to by the trial judge, we think an equally long line of decisions have settled the principle that should be applied in actions for injuries arising from nuisances. Thus, in the leading case of Congreve v. Smith (18 N. Y. 82), which is cited with approval in Moore v. Gadsden (supra), it is said:

“ The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it, or renders its use-hazardous by doing anything upon, above or below the surface, is guilty of a nuisance; and, as in all other cases of public nuisance, individuals sustaining special damage from it, without any want of due care to avoid injury, have a remedy Toy action against the author or person continuing the ntoiscmce. No question of negligence can arise, the act being wrongful. I%is as much a wrong to impair the safety of a street by undermining it as by placing objects upon it. There can be no difference in regard to the nature of the act, or the rule of liability, whether the fee of the landnvithin the limits of the easement is in a municipal corporation or in him by whom the act complained of was done; in either case the act of injuring the easement is illegal.” (See, also, McGoldrick v. N. Y. Cent. & H. R. R. R. Co., 20 N. Y. Supp. 914, and Simmons v. Everson, 124 N. Y. 319.)

As the evidence presented, therefore, tended to prove that the defendant was maintaining a nuisance which was the' proximate cause of plaintiff’s injuries, we do not think that the cases relied upon by the learned trial judge are applicable, or that the disposition made was right.

In order to establish the cause of action it was necessary to show : (1) That the awning and leaders of which complaint is made were maintained by the defendant; and (2) that the ice which accumulated on the sidewalk, and which resulted in plaintiff’s fall, was formed from the water or spray which flowed from the spouts attached to the awning.

As to the first proposition the evidence was, we think, sufficient. It was admitted by the answer that the property belonged to the defendant, and the diagrams introduced in evidence show that the name of the defendant was over the doors of the saloon which occupied the entire store floor of the building in question. One witness also testified that he had seen the defendant in and about the saloon and building for a period of four or five years.

As to the second proposition, the evidence tending to establish it is slight, but there is some evidence- tending to show that the ice upon which plaintiff fell was occasioned by the discharge of the water from the spouts upon the sidewalk.

Under the circumstances, therefore, it is concluded that the evidence before the court presented a question which might have been submitted to the jury.

The exceptions should be sustained and the motion for a new trial granted, with costs to abide the event.

Eollett and Parker, JJ., concurred.

Exceptions sustained and motiqn for a new trial granted, with costs to abide the event.