author: Parker, J. :

text:
    Daniel W. McClain, Plaintiff, v. Benjamin Schofield and Others, Defendants.

      Principal and agent— account stated— a sales agents claim as to the amount of his commissions precluded by accounts stated.

    An action by a sales agent against his principal, to recover the difference between commissions paid him at a certain rate and commissions at a higher rate originally contracted for, is not maintainable in the absence of fraud or mistake, where it appears that the minds of the parties met on reducing the rate of commissions, and thereafter the principal rendered the agent monthly accounts made out on the basis of reduced commissions, which were received and retained by the agent without objection, and payment of the final balance appearing due him by such accounts was accepted by him before bringing the action.
    A final statement of account, rendered by a principal to his sales agent, and accepted by the agent without objection, supersedes prior monthly accounts, and the acceptance of payment by the agent of the balance due him according to the final account rendered, amounts to an assent on his part and makes the accounts between the parties stated at that date.
    In such an action, a claim by the agent that he was entitled, by his contract, to commissions upon a sale made by him to a failing purchaser, by reason of which his principal lost the entire purchase price, is not open to consideration, where it appears that after such sale the agent accepted from his principal, and retained without objection, a statement of account in which the sale in question was deducted from the gross sales made by the agent, and the agent continued thereafter to make sales for, and accept monthly statements of account from, the principal, and afterwards, and before the commencement of the action, accepted payment of the final balance of his commissions on the basis of such deduction.
    Motion by the plaintiff, Daniel ~W. ’McClain, for a new trial upon exceptions ordered to be beard at General Term in the first instance, on the dismissal of the complaint at the New York Circuit on the 23d day of February, 1893.

      Eugene M. Sanger, for the plaintiff.

      Strong & Cadwalader. for the defendants.
   Parker, J. :

"We agree with the trial jucige that there was an account stated between the plaintiff’s firm and defendants ; thereafter a payment by defendants to plaintiff of the amount which such account showed to be due; and that a dismissal of the complaint was necessarily required.

The defendants were carpet manufacturers in the city of Philadelphia ; plaintiff was one of a firm of commission agents for the sale of carpets in the city of New York, and has succeeded to the interests of the firm in the claims which are the subject of this action. About the 1st of December, 1887, an agreement was entered into between the parties, by which plaintiff’s firm became defendants’ agents for the sale of Wilton and Body Brussels carpets, the commission agreed upon being three per cent for all sales made at the standard price of the season for such goods, while for goods sold at less than the standard price, it provided for a commission of one and one-half per cent, the terms of the agreement to continue as long-as mutually agreeable. Plaintiff’s firm continued to sell goods as the agent of defendants until November, 1890, and the first cause of action alleged is for the balance of commissions which plaintiff claims to be due and unpaid on account of goods. sold between the 1st days of December, 1889, and November, 1890.

He alleges that he has been allowed and paid only two per cent commissions on goods sold at standard prices during that period, while he was entitled to three, and it is the sum which one per cent on the gross sales would produce that he claims to recover under the first cause of action. Defendants’ position was that the agreement had been modified or abrogated, and by the amended or substituted agreement plaintiff’s firm were to receive but two per cent, the amount of which had been paid prior to the commencement of this action.

That after the change in the agreement touching the amount of the commissions, the defendants sent monthly statements to the plaintiff’s firm covering all the business transactions between the parties, in which the commissions of the plaintiff’s firm were openly and plainly stated to be two per cent, and the aggregate amount of such commissions upon such basis was also stated. That payments in accordance therewith were made, and receipts for such amounts given hy plaintiff’s firm, by reason of which facts the defendants contended that the accounts between them had become stated, and were no- longer the subject of investigation by the court in the absence of fraud or mistake. (Manchester Paper Co. v. Moore, 104 N. Y. 680.)

A cursory examination of the dealings between the parties during the period embraced in the alleged first cause of action, will make it apparent that this is not a case in which regret should be occasioned because of the necessity of applying the rule of an account stated.

The plaintiff’s firm had full notice of the defendants’ determination not to pay them more than two per cent, in advance of the performance on their part of nearly, if not quite, all, the work for which they claim not to have been fully compensated, if indeed they did not fully assent to such reduction.

As has already been observed, the contract expressly provides1 “this agreement to continue in full force and effect so long as mutually agreeable.” Thus by,its terms either party had a right to-terminate the agreement at will. In December, 1889, defendants-wrote plaintiff’s firm that they would not put their price down to-eighty-seven and one-lialf cents a yard, but where there was a large trade -and plaintiff’s firm chose to take a two per cent commission they could sell at ninety cents, with a rebate of two and one-half per cent off.

In substance, that they declined to sell at eighty-seven and one-half, and pay three per cent commission.

The sales which are the subject of the first- cause of action are all made to four firms, to three of which the sales were made at eighty-seven and one-half while to the other firm the sale was at ninety, with a rebate of two and one-lialf per cent. The plaintiff replied by letter, dated January 10, 1890, in. which he said : “ You wrote me that you would only allow us two per cent at eighty-seven and one-lialf. ~ffle cannot do your business on that commission and get. even a living, and I, for one, will not try. We are willing to do the-. Claflin, Kennard and Artman & T. on that basis for this season, but, farther than that I, speaking for myself, will not go, and I thinlc Fred feels as I do; I shall let their trade go. * * * It is for you to decide if we are to take orders as others are doing, or let them pass.”

It thus appears that there was a complete meeting of the minds1 of the parties as to the amount of commissions to be paid on sales to three parties named, and as to other sales there was an assertion by the defendants that tliey would not pay over two per cent commissions, and a statement on the part of the plaintiff that he should let the other trade go. Thereafter plaintiffs firm continued to sell defendants’ goods to the three firms which they had expressly consented to sell to, for a commission of two per cent, and to another firm which they did not mention in their letter of consent. Defendants prepared monthly and sent to the plaintiff’s firm a statement -showing the entire sales made for the month, and the commissions of plaintiffs firm thereon, on the basis of two per cent. The statements were received by plaintiffs firm in due course of mail, and by them produced on the trial in compliance with defendants’ notice to do so. Payments were made from time to time, and were duly entered upon the statements sent to plaintiff’s firm. They were made by the checks of defendants and plaintiff’s firm gave receipts for the money. Plaintiff made no objection to any of these statements of account, except possibly those of February and March, 1890.

He says he objected to the refusal of defendants to allow but two per cent commissions upon the sales to Bauman Brothers, and that the objection was by letter. But he failed to produce a copy of the letter, or make such proof of its mailing as would raise a presumption that the defendants received it.

Assuming, however, that he did object to the item, the fact remains that the defendants continued to send monthly statements of account, which necessarily asserted the correctness of that item -on each succeeding month, down to November following, after which plaintiff received from defendants the money which the last statement asserted to be due to him. Aside from the fact that he made no objection to the further statements of account, there is direct ■evidence of his assent to their correctness. On the 5th day of June, 1890, he wrote the defendants a letter in which he said: “ Please ■send us a check for $2,000, which will be a small advance; it will take that to start us out; as near as I can tell, there is between $1,600 and $1,700 due us.” Referring to the statements of account for the month of May, it appears that- plaintiff’s commissions for April and May amounted to $2,770.17. These commissions were two per cent of gross sales including sales to Bauman Brothers.

And further, that upon the twenty-sixth of May the plaintiff received from the defendants $1,000, leaving due him according to the statement a balance of $1,110, a little more than plaintiffs estimate.

Whether he objected to the accounts of February or March or not, he was concluded by the statement of account furnished on July ninth, to which he did not object, but, on the contrary, received payment of the balance shown to be due him. For that statement of account superseded those rendered before, and his acceptance of payment without objection amounted to an assent on his part, and made the accounts between them stated at that date. (Clark v. Mechanics' Nat. Bank, 11 Daly, 239; Quincey v. White, 63 N. Y. 370; Knickerbocker v. Gould, 115 id. 533; Jugla v. Trouttet, 120 id. 21.)

After the July statement the defendants continued to render monthly statements down to November following, after which plaintiff was paid the amount appearing to be due to him by the last statement. He made no objection when he received it, nor did he object when the money was paid to him, nor at any time thereafter,. so far as the record discloses, until the commencement of this action in February, 1891.

The second cause of action was a claim for commissions upon goods sold to Deimel Brothers of Chicago, amounting to $5,986.25 ; in December, 1889, Deimel Brothers became insolvent immediately after the sale, and no part of the purchase price was paid.

Plaintiff claims that, under the contract, he was entitled to his commissions, notwithstanding the sale which he made was to a failing firm, by reason of which his principal lost the entire amount of the purchase price. As we .view it, it is not for us to determine whether his contention be correct.

In the very month of the sale (December, 1889) defendants, in their statement to plaintiff’s firm, which was received and retained without objection, deducted from the gross sales made by plaintiffs firm, and which constituted the basis upon which their commissions ■were estimated in that statement, the amount of the sale to Deimel Brothers. Thereafter, and prior to the commencement of this action, plaintiff made no objection to the statement in such respect, and for a period of ten months continued to procure sales for the defendants, they submitting monthly statements of account to him, until November 20,1890, wlien a final statement was made and plaintiff paid the balance therein stated to be due.

The cases we have already cited furnish adequate authority for the determination of the trial court, that as to such item the account had become stated.

Plaintiff’s exceptions should be overruled and judgment ordered for defendants, with costs in both courts.

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

Plaintiff’s exceptions overruled and judgment ordered for defendants, with costs in both courts.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    John E. Domschke, Respondent, v. The Metropolitan Elevated Railway Company and Another, Appellants.

      Waiver of the objection that a fact sought to be proved should have been pleaded — ■ amendment — injunction—equitable relief — effect of the plaintiff's ceasing to be entitled thereto subsequently to the commencement of the action — damages recoverable.

    Where proof is offered on the trial of an action of a fact which should have been pleaded, the party against whom it is offered waives the right to have it rejected, unless the evidence is objected to on the ground that the fact is not pleaded.
    The rule requiring amendments to pleadings is not so stringent where the act sought to be established is the voluntary act of the party against whom it is. offered to be proved, as where the fact sought to be established has occurred without his agency.

      In an action brought to recover damages caused to real estate belonging to the plaintiff, by the construction and operation of the defendant’s elevated railroad, and for an injunction restraining its future operation, the plaintiff obtained a. judgment for $611.49, which judgment also contained a direction that the defendant pay the plaintiff §1,000 for the right to maintain and operate such road in the future. Before the case was decided the plaintiff conveyed the fee of the premises in question by warranty deed, reserving to himself any right of action which he had or might have against the elevated railroad company, by reason of its structure in front of said premises, up to the date of the conveyance but not reserving to tlje grantor the right to convey any easement in or to said premises.

      Held, that having parted with his title and all right to the damages to the fee, he was not entitled to an injunction, but simply to the 13611.49 damages.

      When upon the commencement of an action the plaintiff had a good claim for equitable relief, the fact that since then he has ceased to be entitled to such relief is not a sufficient ground for dismissing the action, and it should be-retained for the purpose of assessing such damages at law as he is entitled to.
    Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 4th day of May, 1893, upon the report of a referee.
    From May 1, 1884, to January 16, 1893, the plaintiff was the owner in fee of Nos. 1166 and 1168 Second avenue, between Sixty-first and Sixty-second streets. In 18Y9 the Metropolitan Elevated Railway Company began, and in 1880 completed, an elevated railroad in said avenue, which the Manhattan Elevated Railway Company has since its completion operated under a lease from the first-mentioned corporation.
    April 20, 1890, this action was begun to recover the damages,, alleged to be $3,000, caused to the premises by the construction and operation of the road, and for an injunction restraining its future-operation. The referee awarded $611.49 as damages to the property-arising from the operation of the road between the date when the-plaintiff acquired title and January 26, 1893, the date of the conclusion of the trial of this action, and directed that a judgment be-entered therefor, and also that the defendants be restrained from further operating the road unless they, within ninety days after the notice of the entry of the judgment, pay to the plaintiff $1,000„ with interest from January 26, 1893, for the right to maintain and operate the road in the future, provided the plaintiff and all persons-interested in the premises execute to the defendants a grant of the= right to maintain and operate the road.
    May 3,1893, a judgment was rendered on this report, from which, the defendants have appealed.

      Howard Mo WilUcmn, for the appellants.

      Henry G. Atwater, for the respondent.
   Follett, J.:

On the 16th of January, 1893, and before the case was decided,, the plaintiff conveyed the fee of the premises to Max Frankenheim by a warranty deed, which contains the following clause: “ The party of the first part, however, reserves any right of action which he has, or may have, against the Elevated Railroad by reason of its structure in front of the above-described premises, up to the date hereof ; but this shall not be construed as in any manner giving the party of the first part the right to convey any easement in or to said premises.”

February 7, 1893, the defendants learned of the conveyance, and ■on the ninth of that month they moved that the case be opened, and that they have leave to introduce the deed in evidence. The referee granted the motion, “ with the limitation, however, that said ■deed shall be admitted as evidence only so far as it tends to show the value of said premises at the date of its delivery, and for no ■other purpose and with no other effect whatsoever. Plaintiff may introduce evidence in explanation or rebuttal.” Thereupon the ■deed was received in evidence, subject to said limitation, and the •defendants excepted to the refusal to admit the deed as evidence ■of the conveyance of title from the plaintiff.”

The plaintiff insists that the deed was not admissible in evidence to defeat his demand for injunctive relief because the conveyance was not set up in a supplemental answer. A perfect answer to this position is that no such objection was -taken -when the deed was ■offered in evidence. (Corser v. Russell, 20 Abb. N. C. 316; 9 N. Y. St. Repr. 56.)

In Gray v. Barton (55 N. Y. 68) it was proved that the plaintiff had given to the defendant the demand on which the action was brought. On appeal the point was raised that this fact was not ■pleaded. The court said : “ The counsel for the respondent insists that the defendant cannot avail himself of the latter for the reason that it was not set up in the answer, but no such objection was raised upon the trial. Had it then been taken it might have been •obviated by procuring an amendment if necessary. Omitting to make it upon trial was a waiver.”'

A memorandum of the decision of the Supreme Court (1 Alb. L. J. 122) shows that the gift was made before the action >vas begun. But the language quoted expresses the general rule that in case a relevant fact is offered to be proved which should have been pleaded, the party against whom it is offered waives this point unless the admissibility of tlie fact is objected to on the ground that it is not pleaded. Besides, this conveyance was the voluntary act of the: plaintiff, and the rule requiring amendments in such cases is not as-stringent as when the fact has occurred without the agency of the-party against whom it is offered.

The plaintiff having parted with his title and all right to the damages to the fee was not entitled to relief by injunction. In his conveyance it is expressly provided that lie has no right to convey the street easements, and a deed or release from him would afford no-protection to the defendants against the claims of his grantee, or of his successor in interest.

The defendants insist that this being an equitable action, and the-plaintiff having voluntarily divested himself of all right to equitable-relief, that the action should have been dismissed, and that the referee erred in awarding past damages. This precise question was decided against the defendants in Van Allen v. The New York Elevated Railroad Company (3 Misc. Rep. 53), and substantially the same question was decided in Renwick v. The New York Elevated Railroad Company (21 J. & S. 591; 39 N. Y. St. Repr. 381).

In this State legal and equitable relief are administered by the same court, and when the action was begun the plaintiff had a good cause of action for equitable relief, and the fact that since that he has ceased to be entitled to such relief is not a sufficient ground for dismissing the action, and it should be retained for the purpose of assessing such damages as he is entitled to.

We find no erroneous rulings in the reception or rejection of evidence, or in the findings or refusals to find relating to the question of past damages, and we think the judgment- should be modified by striking therefrom the second and third divisions thereof,.and, as so modified, affirmed, with costs in this court to the appellants and against the respondent.

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

Judgment modified as directed in opinion, and, as modified, affirmed, with costs in this court to the appellants and against the-respondent.


author: Follett, J. :

text:
    The American Exchange National Bank, Respondent, v. The New York Belting and Packing Company, Appellant.

      Action on a wrongfully diverted note — •presumption as to good faith and notice — holder for value of substituted notes.

    When a note is wrongfully diverted the plaintiff in an action brought to recover the amount thereof is bound to show not only that he is a holder for value but also that he had no knowledge or notice of the diversion ther'eof, or facts from which his good faith and lack of such knowledge or notice can be inferred.
    When it was shown that full value was paid for a note taken in the usual course of business, and there is no circumstance tending to show that the purchaser had notice of its diversion, it is presumed that it was acquired in good faith, and without notice of the diversion.
    Where a person is the holder for value of certain notes, -and other notes are substituted therefor, he is a holder for value of the substituted notes.
    Appeal by tbe defendant, Tbe New York Belting and Packing Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe *Gffice of tbe clerk of tbe city and county of New York on tbe 21st day of June, 1893, upon tbe verdict of a jury directed by tbe court at tbe New York Circuit.

      Austin G. Fox, for the appellant.

      Michael H. Cardozo, for the respondent.
   Follett, J. :

This action was brought on a promissory note made July 18, 1890, by tbe defendant, whereby it promised to pay to its own order $5,000, eight months after date, at tbe Maverick National Bank of Boston. Tbe defense interposed is that tbe note was made, indorsed and delivered to tbe Potter-Lovell Company, as tlie agent for tbe plaintiff, for tbe purpose of having it discounted or sold and tbe avails transmitted to the maker. It is also alleged that tbe Potter-Lovell Company wrongfully pledged it as security for its indebtedness to tbe plaintiff and that tbe plaintiff did not receive it for value and in good faith. It was shown beyond dispute that tbe note was made and delivered to tbe Potter-Lovell Company for tbe purpose of being sold or discounted and tbe avails transmitted to tbe defendant.

May 28, 1890, tlie Potter-Lovell Company borrowed $100,000 of the plaintiff, and gave its promissory note whereby it promised to pay that sum four months after date. When this loan was obtained, the Potter-Lovell Company held two notes made by the defendant for $5,000 each, one dated February 19, 1890, and the other March 26, 1890. Whether these notes had been diverted or not, does not appear. The Potter-Lovell Company pledged these notes to the plaintiff, with other security, as collateral to its note for $100,000. The plaintiff was a holder for value of these notes. (Bank of New York v. Vanderhorst, 32 N. Y. 553; Brookman v. Metcalf, Id. 591; Moody v. Andrews, 7 J. & S. 302; affd., 64 N. Y. 641.)

Subsequently, the Potter-Lovell Company withdrew the notes of February nineteenth and March twenty-sixth, and substituted the one in suit in their place, as security for the $100,000 loan, which made the plaintiff a holder for value of this note. (Park Bank v. Watson, 42 N. Y. 490; Paddon v. Taylor, 44 id. 371; Cary v. White, 52 id. 138.) These facts were proved by a witness called by the defendant, and it was not in a position to go to the jury on the question of his credibility. The note having been wrongfully diverted, the plaintiff was bound to show not only that it was a holder for value, but that it had no knowledge or notice of the fact that the note had been wrongfully diverted, or facts from which its lack of notice of the diversion — good faith — -is inferable. (Vosburgh v. Diefendorf, 119 N. Y. 357; Canajoharie Nat. Bank v. Diefendorf, 123 id. 192; Joy v. Diefendorf, 130 id. 6; Sixth National Bank of New York v. Lorillard Brick Works Company, 29 J. & S. 29.) But when it is shown that full value, was paid for a note taken in the usual course of business, and there is no circumstance which tends to show that the purchaser had notice that it had been diverted, it is to be presumed that it was acquired in good faith and without notice of the diversion. (Dalrymple v. Hillenbrandt, 62 N. Y. 5; Cowing v. Altman, 71 id. 435; Byles on Bills [13th Eng. ed.], 123 et seq.; Abb. Tr. Ev. 449; 1 Dan. Neg. Inst. § 819.)

The evidence shows that the plaintiff acquired the note for value and in the usual course of business, and no fact or circumstance has been called to our attention, or found by us in the record, which rebuts tbe presumption of good faith, or which made the question of notice — good faith — one for the jury.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, <L, concurred.

Judgment affirmed, with costs.


text:
    Washington Belt and Others, Appellants, v. American Central Insurance Company, Respondent.

      Fire insurance policy — ratification by the insured of a change in the policy.

    Upon the trial of an action brought against an insurance company it was shown that the plaintiffs insured certain wool with the defendant for §5,000. Annexed to the policy was a stipulation known as an “eighty per cent có-insurance clause.” On August 26, 1892, certain improvements having been made on the building wherein such insured property was stored, the plaintiffs applied for a reduction of the amount of the premium paid for such insurance, surrendered the policy, and received from the defendant a binding slip therefor.
    On August 27,1892, the property insured was burned. About ten days after the fire the policy was returned to the plaintiffs’ agents, and was by them delivered to the plaintiffs. The rate of insurance was reduced and a portion of the-premium paid was returned. The “eighty per cent co-insurance clause” was detached and a “ one hundred per cent co-insurance clause” substituted therefor. Under the ‘ ‘ eighty per cent co-insurance clause ” the plaintiffs would have received §4,118.60 of the insurance. Under the substituted clause they were entitled to receive but §3,294.88.
    In October, 1892, the plaintiffs and the defendant agreed upon the amount of damage occasioned by the fire, and the plaintiffs verified and served upon the defendant proofs of loss by which they claimed §3,294.88, which the defendant, in November 1892, paid them, less a reduction for interest, the plaintiffs surrendering the policy, and giving a receipt for such amount received by them, “in full settlement, compromise and discharge of all claims and demands for-loss and damage by fire ” to the property in question under such policy.

      Held, that under the circumstances the plaintiffs had ratified the substitution of the “one hundred per cent co-insurance clause” for the “eighty per cent co-insurance clause,” even if there had been no previous authority given to make such change.
    Appeal by the plaintiffs, Washington Belt and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 23d day of June, 1893, dismissing the plaintiffs’ complaint and for costs, rendered after atrial at the New York Special Term.
    The defendant is a corporation organized under the laws of the State of Missouri, and in July and August, 1892, Ackerman, Deyo & Hilliard were its general agents in the city of New York, with power to bind it by contracts of insurance. During this period Brown & Skinner were insurance brokers in the city of New York, who were employed by the plaintiffs to procure insurance on their property. On July 14, 1892, the defendant, in consideration of $58.50, through Ackerman, Deyo & Hilliard, insured the plaintiffs’ wool under policy No. 593,416, for one year against loss by fire in a. sum not exceeding $5,000. Attached to the policy was a stipulation called an eighty per cent co-insurance clause, of which the following is a copy:
    “ N. Y. Standard, Percentage Co-Insurance Clause.
    “ If, at the time of the fire, the whole amount of insurance on the property covered by this policy shall be less than eighty per cent of the actual cash value thereof, this company shall, in case of loss or damage, be liable for only such portion of such loss or damage as the amount insured by this policy shall bear to the said eighty per. cent of the actual cash value of such property.”
    The policy, with the clause attached, was delivered to Brown &; Skinner, the agents of the plaintiffs.
    Afterwards the plaintiffs improved the building wherein the. property was stored, by reason of which they claimed that they were entitled to have the premium reduced, and on the 26th of' August, 1892, their agents, Brown & Skinner, delivered this and other policies issued by Ackerman, Deyo & Hilliard to' them for the purpose of having the premium reduced. •
    On the delivery of the policy, Ackerman, Deyo & Hilliard delivered a binding slip, of which the following is a copy :
    “New York, August 25th, 1892.
    “We, the undersigned insurance companies, do hereby insure-Belt, Butler & Co., for the amount set opposite our respective names. Subject to the conditions of Standard Fire Insurance Policy of the State of New York. On stock of wool contained in 120 and 122 "Wooster st., N. Y. city, as per policies left with companies for a reduction in rate.
    “ Binding this 26 day of August at noon.
    “ (This Memo, to be void on delivery of policies at this office.
    Company Amount Accepted
    593,416 American Central. $5,000.”
    August 27, 1892, the property insured was burned. About ten days after the fire the policy was returned to Brown & Skinner, Avho delivered it to the plaintiffs. When returned it was indorsed as follows : “ Aug. 23, ’ 92, rate reduced to 63$ for improvements under slip No. 1,483, return premium $18.78 therefor. A. D. & TI.” The eighty per cent co-insurance clause was detached, and the following clause substituted in its place :
    “ N. Y. Standard Co-Insurance Clause.
    “ If, at the time of the fire, the whole amount of insurance on the property covered by this policy shall be less than the actual cash value thereof, this company shall, in case of loss or damage, be liable for such j)ortion only of such loss or damage as the amount insured by this policy shall bear to the actual cash value of such-property.
    “Attached to and forming part of Policy No. 593,416.
    “ A. D. & II., Agts.,

    “ (Signature for Company).”
    When the policy was returned the binding slip was surrendered to Ackerman, Deyo & Hilliard.
    On the twenty-sixth of October the plaintiffs and the several insurance companies interested agreed that the damage occasioned by the fire was $87,000.
    On the 27th of October, 1892, the plaintiffs verified and served upon the defendant proofs of loss by which they claimed $3,294.88, which the defendant, on the 7th of November, 1892, paid, less a reduction for interest, and surrendered the policy, giving the following receipt:
    “3,294.88. • New York City, Nov. 7, 1892.
    “ Received from American Central Insurance Company of St. Louis, through Ackerman, Deyo & Hilliard, agents, the sum of Tliirty-two hundred ninety-four and 88-100 dollars in full settle-merit, compromise and discharge of all claims and demands for loss and damage by fire on the 2Yth day of August, 1892, to the property insured by policy No. 593,416, Renewal No.........issued at the agency of said company at New York City, and said policy is hereby surrendered and canceled.
    “ Amount of loss................................... $3,294.88
    “ Discount........................................ 32.94
    “Net draft................................... $3,261.94
    “BELT, BUTLER & CO.,
    “ W. II. GOLDSTEIN & CO.”
    * The loss was adjusted upon the basis of a one hundred per cent co-insurance clause, but had it been adjusted upon the basis of an eighty per cent co-insurance clause the plaintiffs would have been entitled to receive $4,118.60, a difference of $823.Y3, to recover Avhicli sum this action Avas brought.

      William H. Hamilton, for the appellants.

      Michael H. Cardozo, for the respondent.
   Follett, J.:

When the policy was issued the plaintiffs’ agents knew that it had an eighty per cent co-insurance clause attached and what they knew the plaintiffs are deemed in laAv to have known. Knowing this, the plaintiffs subsequently received the policy with the rate of premium reduced, a one hundred per cent co-insurance clause substituted, thereafter filed proofs of loss claiming on the basis of the one hundred per cent co-insurance clause, were paid the full amount of their claim and surrendered the policy. This, we think, amounted to, a ratification of the substitution of the one hundred per cent coinsurance clause for the eighty per cent co-insurance clause, even if there Avere no previous authority to make the change, of which there is some evidence in the case. The presumption arising from the evidence is that the change was either authorized or ratified. There was indorsed on the policy this memorandum:

“ 63 c.
“ Full Co-Ei. 61.
“ Build. 65.
“ Stock, 10.
“ Co. full clause.”

The evidence tended to show that this indorsement was made by the clerk of Brown & Skinner before the policy was delivered to Ackerman, Deyo & Hilliard for a change of rate. If it were so made by the plaintiffs’ agents it authorized the substitution of a full or one hundred per cent co-insurance clause for the eighty per cent co-insurance clause. There is no evidence in the case which would sustain a finding that the change was secretly or fraudulently made. What negotiations, if any, were had between the agents which led to the reduction of the premium do not appear.

We think the evidence fails to establish a cause of action in favor of the plaintiffs and that the judgment dismissing the complaint was right and should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Alice J. A. Tiers, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Damages for personal injuries — duty of a city as to its streets — •neglect of third persons.

    A city is bound to exercise reasonable diligence in the care oí its streets, and if it fails to do so it is liable for injuries sustained by reason of the improper condition thereof, whether the act or omission which caused the injury is that of the city or of some third person.
    A city cannot escape liability for damages sustained by reason of personal injuries received from the overturning of a buggy caused by a pile of sand in its street, on the ground that the neglect to light or guard such pile of sand on the night of the accident was the omission of some person who had previously assumed tp place lights thereon.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 17th day of May, 1893, upon the-verdict of a jury rendered at the New York Circuit, and also from an order entered in the said clerk’s office on the 2d day of June, 1893, denying the defendant’s motion for a new trial.

      Theodore Connoly, for the appellant.

      Edward Gebhard, for the respondent.
   Follett, J.:

Tliis action was brought to recover damages for a personal injury-caused, it is alleged, by the negligence of the defendant and its agents. Between eight and nine o’clock in the evening of May 1, 1S91, the plaintiff, accompanied by a gentleman, while driving north in a buggy on the east side of Lenox avenue, between One Hundred and Thirteenth and One Hundred and Fourteenth streets, drove onto a pile of sand, was overturned, and the plaintiff thrown into the street and severely injured. The pile of sand extended from the curb on the east side of the avenue from eight to fifteen feet towards the center of the street.

There was some conflict of evidence as to how far the pile of sand extended into the avenue. The plaintiff testified that it extended from twelve to fifteen feet, and one witness called in her behalf, who lived near the place of the accident, testified that it extended fifteen feet into the avenue. One witness called by the defendant testified: “ This pile extended into the street from seven to eight feet; I suppose it might have been, ten to fifteen feet long, stretching along the curb: in my estimation from two to three feet high.”

Two witnesses who lived near the scene of the accident testified, and they wei’e not contradicted, that this pile of sand had lain in the avenue four or five months. They also testified that they saw the accident, that there was no light on the sand that evening until after the accident, when lights were placed on it. One of these witnesses testified that her attention was called to the absence of the light by the fact that there had been a light there every night before that one. It was also shown by undisputed testimony that no railing or guard was kept around the sand.

It does not appear that the defendant ever caused this pile of sand to be lighted or to be guarded, or requested any one to do it, or that any precautions were taken by the defendant or its agents to prevent accidents. It does not appear by whom the lights had been placed on the heap of sand before the accident.

Section 324 of the Consolidation Act provides : § 324. It shall be the duty of the commissioners to remove all obstructions now existing, or which may hereafter be placed, upon any street or sidewalk or public ground not inclosed in any public park.”

The obstruction which caused the injury had existed for four or five months before the accident, and the defendant must be deemed to have had knowledge of it. It was bound to exercise reasonable diligence in the care of the street, and if it failed to do this it is liable, whether the act or omission which caused the injury is that of the defendant or of some third person. (Nelson v. Village of Canisteo, 100 N. Y. 89; Turner v. City of Newburgh, 109 id. 310; Pettengill v. City of Yonkers, 116 id. 558.)

The defendant cannot escape liability on the ground that the neglect to light or guard the obstruction on the night of the accident was the omission of some person who had previously assumed to place lights on the obstruction. The plaintiff and her companion were driving on the proper side of the street, and there is no evidence that their negligence contributed to the injury.

The evidence is sufficient to sustain the verdict that the plaintiff was free from negligence, and that the defendant was guilty in permitting this obstruction to remain in the street unguarded, and so cause the accident.

The judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


text:
    John M. Moran, Respondent, v. The Racine Wagon Company, Appellant.

      An mvployer.not an insurer — care as to Ms building and maeMnery — fulling of an elemtor —proof of its being out of repair.

    An employer is not an insurer of tlie safety of his building nor of the machinery therein, but is simply bound to exercise due care that they shall be safe, and before an employee can recover for injuries sustained he must show Unit the employer failed to discharge his duty in this respect.
    In an action brought to recover damages for personal injuries sustained by 1-lie falling of an elevator, the plaintiff must provo not only that the elevator was out of repair, but also that the defendant, his employer, negligently suffered it to be so.
    Evidence of the falling of an elevator is sufficient to warrant a jury in finding that it was out of repair, if there is evidence that no one had negligently left the elevator without throwing off the power.

      Appeal by the defendant, Tlie Racine Wagon Company, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the city and county of New York on the 25th day of February, 1893, upon the verdict of a jury rendered at the New York Circuit, and also from an order entered in said clerk’s office on the 21st day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Charles M. Earle, for the appellant.

      John J. Delany, for the respondent.
   Follett, J.:

This action is brought by an employee against liis employer to recover damages for a personal injury, caused, it is alleged, by the neglect of the defendant to provide a safe elevator and keep it in repair. The Lorillard estate is the owner of a building completed in 1890, on lots Nos. 151 and 153 South Fifth avenue, which was leased to Frankenthal Brothers, who sublet to the defendant the store floor and basement of the building, “ including the steam heat and elevator nsage.” The defendant entered into possession on February 1, 1890, but the building was not fully completed until May or June following, during which months the elevator was put in by the estate for the use of the defendant. The carriage of the elevator consists of a platform about twelve feet long by six feet wide suspended by four cables and runs between the basement and the store floor, a distance, of about nine feet. The elevator was kept in place by guides which extended from the floor of the basement to the store floor, but not above, as it was not designed to pass that floor. It is for freight, not for passengers, and was operated by steam which was furnished by Frankenthal Brothers, who employed the engineer. The defendant used the first floor and basement for the storage and sale of wagons. '

September 29, 1890, the plaintiff, who had been employed by the defendant five or six months, entered the basement for the purpose of removing a wagon. In going to the place where it was stored he passed underneath the elevator which fell upon him from the second floor, inflicting severe and permanent injuries. The elevator was operated by defendant’s employees, no particular person having charge of it. In the language of the plaintiff, “ Everybody ran the elevator. I did myself. I didn’t run. it quite as much as anybody else. The men who worked there, Tom Oonsidine, or any one who worked in there, they used the elevator.”

The cause of the fall of the elevator is not clearly established by the evidence. The elevator was not inclosed in a shaft, but was open on all sides. There is some evidence that it was so adjusted that the platform, instead of stopping, as was designed, even with the store floor, would sometimes rise five or six inches above it, and when it came down, instead of passing through the aperture, one side or end of it would catch on the floor, and, if the connection with the power were not shut off, the drums around which the cables were wound would continue to revolve, leaving the cables slack, and if, by accident or otherwise, the platform of the elevator slipped from the floor it would fall to the floor of the basement. In case the check rope was pulled in time the elevator could be stopped at any point, and would not rise above the level of the floor.

There is no evidence that the plaintiff ever discovered any defect in the construction of the elevator or knew that it was out of repair, nor is there any evidence which tends to show that the defendant’s superintendent knew or should have known that the elevator was ■defective in design or construction, or that it was out of repair. The only evidence that the elevator had ever failed to work properly was given by John Sodan and Thomas Oonsidine, •employees of the defendant. The former was called by the plaintiff and testified: “ Q. Did you see the elevator after it had fallen on John Moran? A. No ; I seen it falling twice before it fell on •Jolm Moran ; it came near killing me. It took off the frame going down; the north side catched it, and then it went off on a slope, and if you went to check it you were afraid; on the northwest end where the brake was, the check was on the northwest end. I seen it plain with my eyes. The check was in the northwest end, and it stood in a foot under the elevator on the north side, and of course you had to run under the elevator to stop it. If you didn’t you couldn’t get at it any other way. The men had to run under the elevator to stop it; you couldn’t do it any other way. The check ■line ran down through the platform of the elevator. You had to ■check it. "When you were going down you pulled down the check and when you were going up you pulled it so (illustrating). Q. On the first occasion when you saw this elevator fall describe how it happened ? A. There were two men -working there and this elevator fell down. I was just working on carriages over the elevator at the same time. I ran to it and seen it, and then Mr. Smith went and got this Mr. Pinney to print letters underneath that elevator that any man that would leave anything under the elevator why he would he fined or discharged. This is all I have to say. Then the elevator fell that time in March. That was the only regulation that was made. Then it fell again in February, and I was under it at the same time, and only that I had God’s blessing I would be killed. That was in February, 1890. I will tell you how the elevator acted when it was in operation. If it went three inches above the floor it struck on the frame, and in coming down it went off on a slope — come right down on a slope.”

"Werner, who put up the elevator, testified that it was not done until May or June, 1890, so it is not ])robable that it was out of repair in February and March before.

Considine testified: Q. Didn’t you notice that that elevator would veer from side to side? A. Well a little, when there was a heavy load on it. Q. And as it went up beyond the floor of the elevator it was likely to catch on the floor ? A. Well, it did catch once or twice and they had it fixed. Q. You have seen it there? A. I didn’t see it, but I heard she was fixed. [Objected to. Stricken out-.] A. No, sir. Q. Rut you have seen it catch on the floorings ? A. No, sir; but I heard.”

This evidence has no probative force as the witness neither saw the elevator work defectively nor did he see it repaired; he simply heard that it had caught on the floor, and that it had been fixed. The only person about the premises who represented the defendant, or who was engaged in discharging master’s duties, was the superintendent, and there is no evidence that he was incompetent; that he had actual knowledge of any defect in the construction or operation of the elevator, nor is there sufficient evidence to authorize the jury to find that he was negligent in not having discovered some defect in its operation. There is no evidence tending to show when or by -whom the elevator was last used before the happening of the accident. It is urged that the fact that the elevator fell is sufficient to warrant the jury in finding that it was out of repair. Assume this to be so, and it would be so had there been any evidence that some co-employee had not been negligent and left it without throwing off the power, which was not shown.

The plaintiff was bound to prove more than that the elevator was out of repair; he was bound to show that the defendant negligently suffered it to be so, and this he utterly failed to do. An employer is not an insurer of the safety of his building, nor of the machinery, but is simply bound to exercise due care that they shall be safe, and. before an employee can recover for injuries sustained lie must show that the master failed to discharge his duty in this respect.

Without considering the question of contributory negligence, we think the evidence insufficient to sustain the verdict, and that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Yan JBeunt, P. J., and Parker, J., concurred.

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


author: Tan Brunt, P. J.:

text:
    In the Matter of the Holly Manufacturing Company, Respondent, v. Clarence H. Venner, Appellant, Impleaded, etc.

      Subpcena duces tecum — objection to the service thereof — punishment for contempt— amount of fine — sufficient excuse,.

    Where upon (.lie return of a subpoena there was no objection taken to it on the ground that it had been improperly served, and the court adjudged that it was duly served, it is incumbent upon the appellant to show that there was some foundation for his objection, that the subpoena was not proved to have been properly served, where it does not appear from the record that the proper witness fees were not paid.
    Where a subpoena duces tecum is issued by a judge, a failure to produce books pursuant thereto, is punishable as a contempt.
    A court is not authorized to convict of contempt, and to impose punishment therefor, unless it adjudges that the offense was calculated to or that it actually did defeat, impede, impair or prejudice the rights and remedies of a party to a special proceeding, but it is unnecessary that there should be any adjudication establishing actual loss and injury.

      Where actual loss has been occasioned by a contempt, and is established to art extent beyond the amount of the fine authorized to be imposed by section 2284.-of the Code of Civil Procedure, the court is authorized to impose a larger fine. Where there is no proof of actual loss or injury a fine of §250 may bo imposed.
    The facts considered and commented upon which authorize a court to disbelieve the excuse of a judgment debtor for his failure to produce books on supplementary proceedings as directed by a subpoena duees tecum on the ground that they had mysteriously disappeared.
    An excuse for the failure to produce books in obedience to a subpoena duces tecum on the ground that they had mysteriously disappeared is sufficient, if true.
    Appear by the judgment debtor, Clarence H. Tenner, from an order of the Supreme Court, made at the New York Special Term on the 2Ytli day of September, 1893, and entered in the office of the clerk of the city .and county of New York, adjudging him guilty of contempt in failing to produce certain books pursuant to a subpoena duces tecum.

      S. B. Clark, for the appellant.

      D. McClure, for the respondent.
   Tan Brunt, P. J.:

The appellant, being under examination in supplementary proceedings, was subpoenaed to produce certain individual and firm books which had been under his control. He, having failed to produce these books, gave as an excuse that he was unable to find them, they having mysteriously disappeared. The court, disbelieving this excuse, found the appellant guilty of contempt, and that his misconduct in not producing the books was calculated to and actually did defeat, impair, impede 'and prejudice the rights and remedies of the plaintiff, and imposed as a fine for his misconduct by way of punishment the sum of $250, with ten dollars costs of motion, and committed the appellant to the county jail, to be there detained until he should produce the books and pay the fine. From this order this appeal is taken.

The grounds upon which this appeal is urged are: First, that the appellant’s excuse for not producing the books was, if true, manifestly sufficient; second, that there was no reason for doubting the-excuse ; third, that the fine of $250 was unauthorized; and(fourth, that the court had no power to punish for the failure to produce books pursuant to a subpoena, cluces tecwn, and, fifth, tliat the subpoena was not proved to have been properly served.

In respect to the last point it may be said that no such objection seems to have been taken upon the return of the subpoena, and tlie court having adjudged that the subpoena was duly served, it is incumbent upon the appellant to show that there was some foundation for the objection, as it does not appear from the record but that the proper witness fees had been paid. It appears upon the face of the record that this subpoena was served in the court house, and there is no proof but that sufficient fees were paid in order to make it a compliance with the law, even if such a question can now he raised.

As to the power of the Special Term to punish for the failure to produce books pursuant to a subpoena, it is claimed that in all cases where a party has been punished for contempt in such proceedings, it has been because of disobedience to an order or oral direction of a judge or referee, and that the case of a subpoena duces tecum is not provided for. The subpoena in this case ivas issued by the judge himself, before whom the proceeding was then pending, and seems to have all the dignity, certainly, of an oral direction and also of a written order. It was a direction of the judge, before whom the proceeding was then pending, to produce the books.

The next point is that the fine of $250 was unauthorized, because such a fine can be imposed only where it is not shown that an actual loss or injury has been produced, whereas in this case it is adjudged that the appellant’s misconduct actually did defeat the rights and remedies of the judgment creditor, and that this is a finding that there was actual loss and injury, and this being so, the only course open to the court was to proceed to assess the damages and lay an indemnity fine equivalent thereto. If the point is well taken under any circumstances, then under no circumstance, unless actual loss and injury is proved, can a fine ever be imposed, notwithstanding the provisions of section 2284, where it says : Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed not exceeding the amount of the complainant’s costs and expenses and $250 in addition thereto.” The court is not authorized to convict of contempt and to impose any punishment unless it adjudges that the offense was calculated to, or that it actually did, defeat, impede, impair or prejudice the rights or remedies of the party to a special proceeding. (§ 2281.) That is to be determined in every case before any punishment whatever can be inflicted; and it is idle to suppose that it was intended that there should be an adjudication establishing actual loss and injury. The mere reading of section 2281 shows that the adjudication covers every case. But there may be eases where actual loss has been produced, and is established to an extent far beyond the amount of the fine authorized to be imposed by the latter part of section 2284; and it is in those cases that the court is authorized to impose a larger fine. But where there is no proof of actual loss and injury, although the court has found that the misconduct was calculated to, or did, defeat, impede, impair or prejudice the rights or remedies of the party, a fine of $250 may be imposed.

We come now to the question as to the sufficiency of the excuse offered by this appellant. It certainly is one of the most remarkable ever offered to a court of justice ; and that the learned judge below disbelieved the whole story is not surprising.

We find that this appellant had been keeping books as a member of a firm, and also individually; that some time prior to the initiation of this proceeding, because he had no safe in which to keep his partnership books, he sent them to Boston where they could be put into a vault. His individual books he allowed to remain here.' They were removed from one office to another. He states that he did not see the individual books after the removal; but his clerk states that he saw them in the office after the removal. They cannot be found. He then goes to Boston for the purpose of getting the books which had been put into a vault there, and they are gone — cannot be found — mysteriously disappeared. And the appellant desires us to believe that, because it was possible that certain other parties in other litigations had some interests hostile to the appellant, they, had stolen his books. It appears also from the affidavit furnished by the brother in whose office this vault was situated that he left the door open frequently and went out of the office and left it alone, and the books may have been taken at such a time; but there is not the slightest evidence that they were ever missed until they were wanted in this proceeding. This excuse might have had some color of credibility if the books in only ■one place had disappeared. But here we find that the books wanted which were in the appellant’s office, here are gone, stolen by these hostile interests, and the books are stolen from the vault of the office in Boston by the same parties. This coincidence is altogether too remarkable. It cannot be that these people were so eager to get these books that they were safe neither in the appellant’s office in New York nor in his brother’s vaults in Boston. The coincidence of the disappearance of these books carries with it unequivocal evidence of design. They would not disappear from both places when they were ivanted, without intelligent help.

We think that the excuse offered would have been sufficient, if true, but we do not believe that any intelligent man can help attributing the coincidence mentioned to design.

The order should be affirmed, with costs.

Parker, J., concurred.

Order affirmed, with costs.


author: O’Brien, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of Schuyler Skaats, Deceased.

      Will — testamentary capacity — undue influence — not inferred from opportunity and interest — uihen presumed — evidence — inequitable will.

    It is essential that a testator should have sufficient testamentary capacity to comprehend perfectly the condition of his property, his relation to the persons who were, should or might be the objects of his bounty, and the scope and bearing of the provisions of his will. He must have a-sufficiently active memory to collect in his mind, without prompting, the particulars or elements of the business to bo transacted, and to hold them in his mind a sufficient length of time to perceive their obvious relations to each other, and to be able to form some rational judgment in relation to them. A testator who is able to do this is of sound mind and memory, and competent to dispose of his estate by will.
    Upon a contest in regard to the admission to probate of an alleged will and codicil, dated respectively in May and August, 1884, evidence of the testator’s physical and mental weakness subsequent to 1884 is entirely proper as bearing upon the impairment of his mind and body.
    A finding that a testator had capacity to make a will is not inconsistent with the finding tiiat the same was made under restraint or undue influence.
    Undue influence must be exercised by coercion, imposition or fraud, and does not arise from gratitude, affection or esteem. It must overpower and subject the will of the testator, producing a disposition of his property which he would not have made if left to act freely at his own pleasure.
    Tlie exertion of undue influence must be proved; not necessarily by direct proof, but it will not be inferred from opportunity and interest, although it may be inferred from circumstances which lead justly to the inference that undue influence was employed, and that the will did not express the real wishes of the testator.
    There are certain cases in which the law presumes that undue influence has been used, namely, where a patient makes a will in favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser, or where other close confidential relationships ' exist. Such wills, when made to the exclusion of the natural objects of the testator’s bounty, are viewed with great suspicion by the law, and some proof should be required beside the will itself before it can be sustained.
    It is a significant circumstance bearing upon the question'of undue influence that the brother and legal adviser, who drew the testator’s will, was, in case of the testator’s intestacy, entitled to a share in the estate almost equal to what he received under the will, and that he was a beneficiary thereunder only to'about the same extent as seven other persons, who, besides the testator's widow, shared in the estate.
    Whether or not undue influence has been exerted in a given case is a question of fact.
    If a testator was mentally competent to make a will, and a will made by him was his free act, the fact that the provisions of the will were inequitable and unjust furnishes no ground for disturbing it. Unreasonableness in disposing of his ■ property is only a circumstance which may be considered with other circumstances appearing as bearing upon either the question of testamentary capacity or undue influence. The question in such cases is, was the will a free act of a competent testator.
    The fact that a testator was weak and easily influenced, though a circumstance to be taken into consideration with other evidence, does not, in itself, raise the presumption that undue influence was exercised simply because his will was unsatisfactory to certain of his relatives, nor does the mere fact that the opportunity had been afforded of exercising undue influence, and that benefits had resulted to those who had such opportunity, raise a presumption that undue influence was exercised.
    A change of testamentary intention, as bearing upon the allegation of undue influence in procuring a will, is sometimes an important circumstance, but its force depends mainly upon its connection with associated facts.
    Appeal by the contestants, Catherine H. Skaats and others, from a decree of the surrogate of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 18th day of May, 1892, admitting to probate the alleged last will and testament of Schuyler Skaats, deceased.

      Schuyler Skaats, the testator, was bom at Geneva, N. Y.,in 1818, married in 1866, and died in 1890, without issue, at the age oí seventy-three. Some seven years before his death, and on May 22, 1884, he made his will, and on August 21, 1884, a codicil thereto. By the will and codicil the testator sought to dispose of the joint estate of himself and wife, which was worth in 1884, $558,475, oí which amount $186,505.88 was left to the widow. Of this latter' amount, $140,802.94 was admittedly the separate and individual property of the wife, which she owned at the time of her marriage, and which had been mingled with his own, thus making the value of the bequest to Mrs. Skaats $45,702.89. By the second paragraph of the will the testator stated it to be his intention to restore to his wife the entire amount of her separate and individual estate, and also to give her in addition thereto a reasonable part of his own property. The remainder of his property he divided among his surviving brothers and sisters and a son of his deceased brother Gideon, making no mention of the three contestants, children of another deceased brother.
    The grounds of objection on which the contest is made are, that the deceased was of weak mind at the time of the execution of the will, and subject to the undue influence of his brother Bartholomew Skaats, and that the will itself was unreasonable and contrary to the admitted declarations of the testator.

      John M. Bowers, for Catherine H. Skaats and others, appellants.

      David McClure, for respondent, proponent.

      Thomas G. Shearman, for respondents, legatees.
   O’Brien, J.:

Upon the question of testamentary capacity the law is well settled, and in the leading case of Delafield v. Parish (25 N. Y. 9) is stated as follows:

“ It is essential that 'the testator has sufficient capacity to comprehend perfectly the condition of his property, his relation to the-persons who were, or should or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. Tie must, in the language of the cases, have sufficient active memory to-collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”

Weeks, running into months, were consumed in eliciting facts bearing upon the question of the testamentary capacity of Schuyler Skaats, deceased. It would exceed the bounds of any opinion to collate from the three large volumes of testimony, all the details of the life of the deceased, partly brought out on behalf of the contestants, which it is claimed tend to establish mental weakness, and partly on behalf of the proponents to refute such theory. We must, therefore, content ourselves with grouping together the most salient features of the case and thence deduce our conclusions.

It appears that the testator had been a man of regular habits, and was a painstaking and marvelously accurate bookkeeper, and kept by his own hands, by a system of double entry, one of the most perfect sets of books that the experts had ever seen, which balanced year by year down to a penny, he having made the last balance January 1, 1883; that during 1883 he made the entries in the different books correctly, and continued to correctly enter his items down to April 30, 1884, and that in the fall of that year the accounts were kept in a more irregular manner, which irregularity gradually increased until his death.

The contestants also attached great weight to the diaries kept by the testator, commencing with January, 1884, and running to within two days of his death, which contain minute entries of his daily life, contestants especially relying upon numerotis entries of calls of nature, and of his having taken doses of tonics, liver invigorators and purgative medicines, and of his symptoms in consequence and other trivial incidents.

Again, reference is made to photographs of the deceased introduced in evidence, taken at different periods of his life ; one in 1878, one in 1886 and one in 1890, which certainly show that as years went by he changed in appearance and became older looking, but which are of no assistance to us in determining whether or not in 1884 the testator was of weak mind.

It is further contended that weakness of mind is shown from the fact that in his latter years, beginning in 1883, the testator had occasional spells of unconsciousness, called by his wife indigestible turns; ” that he would sometimes scream or shout apparently without cause; that he had many odd manners and habits, such as making puns, reciting poetry in a showy manner, pasting pictures in books, shaking hands with hotel waiters, smoking in bed, wearing cap and gloves while eating, etc., etc.

As against all this, it is shown that he impressed people outside of his family as being somewhat eccentric to be sure, but neat in appearance, pleasant and cheerful, a good joker, well read, intelligent, a good judge of pictures, very shrewd in matters of business and hard at a bargain; that many of his peculiarities were the habits of long years, such, for instance, as his punning propensities and conversing with waiters and shaking them by the hand, and that his diaries for the years 1843 and 1853, which were produced, contained entries substantially similar to those in the diary for 1884. His occasional screams would appear to be explained by the fact that he suffered from a bad rupture, which at times gave him great trouble, causing him to cry out with pain. Even his failure to keep up his books for the summer of 1883 maybe sufficiently accounted for on another theory than failure of intellect. He had then passed his sixty-fifth year and had long been out of business; his digestion was much impaired; he was troubled and sometimes tortured with rupture, and he was constantly dosing with powerful medicines, which he sometimes took, under protest, to allay the anxiety of his wife, at whose suggestion also in the fall of 1883 he commenced the habit of driving out about ten o’clock in the morning for the benefit of his health. His diary shows further that in 1884 he and his wife generally drove out in the afternoon a second time, and that he was accustomed to take a short nap in the day-time. Under these circumstances it would be entirely natural in him to gradually give up the superfluous labor of keeping such an elaborate set of books.

But when it is made to appear that the testator, during the very years when he is alleged to have been imbecile, had the control and management of a large amount of property, buying and selling bonds, and that he never made a bad investment, but that the market value of his securities had increased considerably at the time of his death; that he constantly watched the fluctuations in the values of his securities — the principal part of which fluctuated wildly during the years 1883, 1884 and 1885 — and frequently recorded the fact in his diary; these facts show such firmness and sound judgment as could not have been exercised by a man of feeble mind. Moreover, the person most intimately associated with him, Mrs. Skaats, the principal contestant, reposed the utmost confidence in his business sagacity, both before and after the making of the will, trusting him with the management of all her fortune, which he kept invested and from which she received a large income.

By reference to the dates it will be noticed that the more marked features of physical and mental weakness relied upon by contestants appeared subsequent to 1884, and while it was entirely proper as bearing upon the impairment of the testator’s mind and body to admit such testimony, it must be remembered that the will was made in May, and the codicil in August, 1884, about seven years prior to testator’s death, and that these are the important dates. It is conceivable that, by reason of physical and mental weakness, one might be deprived of testamentary capacity just prior and subsequent to a period when such capacity existed, and the question in all such cases necessarily must be as to the mental condition of the testator at the date when the will was made.

In regard to the period prior to 1884, although some evidence was presented bearing upon the nervous results to the testator growing out of the panic of 1873, it appears that his recovery was sufficiently marked to make this simply an episode in his life which did not permanently impair either his body or mind. So, that in January, 1883, the testator was concededly in sound mind, amply competent, not only to make a will, but to enter into any contract. About that time he was attacked with the first of a long series of what has already been alluded to as unconscious or indigestible ” turns, consisting of a short attack of unconsciousness, during which “he turned red in the face, became rigid and seemed gone.” That these occurrences resulted from attacks of indigestion is made apparent, because from this trouble the testator suffered for many years, which not only accounts for the amount of medicine he is shown to have taken during the latter years of his life, but to some degree may account for the watch that he kept upon his physical condition, resulting in the minute entries in his diary, some of them indelicate and disgusting, as to his physical needs and acts.

In August of that same year (1883) the testator had a serious fit of illness at Lake George, and testimony was adduced showing that while not suffering he was at times delirious, and- that his mind was considerably disturbed. During this .period he was unconscious of his surroundings, forgetful of his friends, occasionally violent and possessed of delusions, which were the result of a fevered and delirious mind. That he recovered, however, is equally certain, and though this attack may have had a marked effect upon him both mentally and physically, it did not take away from him that grasp of his affairs, or that ability to look after them, which had distinguished him throughout his 'life. The most that can be said is, that to some extent both mind and body may have been impaired, but his recovery left him in a condition in which he was able to understand liis acts, and to produce the impression upon those outside of his family circle that he was entirely rational. Such a conclusion, moreover, is enforced, not only by the successful way in which he administered his own and his wife’s estate, but by his conduct in the ordinary affairs of his daily life, including the preparation for and the final execution of the will.

Exclusive of the testator’s own diary, the contestants furnish no evidence having specific reference to the month of May, 1884; while, on the other hand, it was shown by five witnesses who had interviews with him in that month, that they regarded him as of sound mind, and from the diary, accounting for each day in the month, the inference is fairly deducible that he was in sound mental and bodily health, and accustomed to walk and ride out, frequently alone. »

We cannot upon this ground, therefore,'agree with the contestants, that the evidence established a want of testamentary capacity ; but, on the contrary, we think it is abundantly shown that he understood the nature of the act, and possessed a mental grasp greater and stronger than has been held sufficient in many of the cases that could be cited.

This brings us to a consideration of the second ground urged, ■which it is insisted by the appellants was entirely overlooked by the learned surrogate.

It' is claimed here, as it is suggested it was claimed below, that although reliance was placed upon the fact that the want of testamentary capacity had been established, and that even though this were not supported, a case was presented wherein one in an enfeebled state of body and mind was unduly influenced by another.

As said by Redfield on the Law, etc., of Surrogates’ Courts (4th ed.), 159: “ The finding that the testator had capacity to make a will is not inconsistent with the finding that the same was made under restraint or undue influence. Undue influence must be an influence exercised by coercion, imposition or fraud, and not such as arises from gratitude, affection or esteem, and its exertion upon the very act must be proved. It will not be inferred from opportunity and interest. But the exercise of undue influence need not be shown by direct proof; it may be inferred from circumstances, though the circumstances, must be such as to lead justly to the inference that undue influence was employed, and that the will did not express the real wishes of the testator.”

As to the character of the evidence necessary to establish such a charge, and upon whom the burden is placed, the rule is thus given in Marx v. McGlynn (88 N. Y. 370):

“ It is not sufficient, however, for the purpose of establishing undue influence, to show that the’ will is a result of affection or gratitude, or the persuasion which a friend or relative may legitimately use; but the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which the testator would not have made if left freely to act his own pleasure, and this kind of influence will not generally be presumed, but must be proved like any other fact by him who alleges it. But there are certain cases in which the law indulges in the presumption that undue influence has been used, and those cases are where a patient makes a will in favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser, or where other close confidential relationships exist. Such wills, when made to the exclusion of the natural objects of the testator’s bounty, are viewed with great suspicion by the law, and some proof should be required beside the factum of the will before the will can be sustained.”

Under well-settled principles of law, therefore, whether undue influence has or has not been exerted in a given case is a question of fact, and it becomes necessary here, as in every other instance where the claim is made, to weigh the testimony and determine therefrom the fact of the existence or non-existence of undue influence acting upon the testator.

Here the charge is made that the testator was controlled in the disposition of his property by his brother Bartholomew, and the evidence sustaining such charge is merely derived from Bartholomew’s testimony. He tells the story of the making of the will and codicil, from which it appears that the testator first spoke to him about making the will on May 7,1884, at the Buckingham Hotel, where he had called at the request of Mrs. Skaats upon another matter in which he was acting as counsel. The testator furnished him with memoranda of the different bequests he proposed to make, from which the next day Bartholomew prepared a draft of a will. On the ninth the testator called and took away the draft, and on the twelfth or thirteenth he called again and had a further consultation about the will, asking certain questions as to what would happen in the event of certain contingencies with reference to the specific legacies. The final changes were made in the will, after which it was engrossed and then carefully read over by the testator and his name signed at the end of every page, and on the twenty-second of May, in company with his brother, the testator took the will to the office of the Farmers’ Loan and Trust Company and executed it. After it had been executed the testator received a coj>y, and Bartholomew kept a copy. With respect to the codicil, the testator had spoken to his brother about it at the Buckingham Hotel previous to going to Saratoga in June, .1884; and upon meeting him in Saratoga in August the testator spoke to him again about it, suggesting that the share of W. W. Skaats, who was insolvent, had better be put in trust. The testator prepared the codicil himself; suggestions were made as to its form by Bartholomew, and some alterations made in accordance therewith. Bartholomew never saw the codicil as it was finally executed, he having left Saratoga before the day of its execution.

Flis testimony is nowhere contradicted, but, on the contrary, is confirmed by the diaries produced by the contestants after his story was told. By such direct evidence, derived from two independent sources, viz., the testimony of Bartholomew Skaats and the testator’s diary, the one agreeing with and confirming the other, and neither being contradicted, and in the absence of evidence enabling any inference of undue influence to be indirectly drawn, the surrogate’s opinion seems to be fully supported when he says: “ I cannot find any evidence which, according to the well-settled rules of law, would authorize me to reject these papers upon the ground that they were obtained by an improper and undue influence exercised by anybody over the decedent. The evidence convinces me that both the will and codicil were prepared by him * * * without any improper interference.”

Upon the question of unreasonableness the claim of the contestants is, that as the will divided the greater portion of the estate among the testator’s own brothers and sisters, and out of so large an estate made so small a provision for the widow, when, according to the testimony of the sisters of the widow, he had led them to believe her interest -under the will would be much larger, such an unreasonable disposition of his property, regardless of the claims of his wife, and contrary to his expressed intentions, could only have been the result of ulterior and sinister influences exerted upon the testator’s weak mind. On the contrary, we have reached the conclusion from our examination of the case that the testator was mentally competent to make a will, and that the will and codicil were his free acts. This being shown, the fact that the provisions of the will were inequitable and unjust would furnish no ground for disturbing it. But it is evident that from the testator’s point of view no injustice or unfairness was intended. lie had no children, his wife was a rich woman in her own right, with an income which he might have thought to be in excess of her real wants, while his own family were comparatively poor, and he was no doubt convinced that if he should leave them out of his own will their fortunes would be nothing improved by any legacies from Mrs. Skaats, who had relatives of her own to provide for.

It will thus be seen that any presumption that might arise from the fact that Bartholomew Skaats drew the will in which he was named as a beneficiary is not established by the other facts appearing; that, in addition to being the attorney, he stood in the relation of a brother to the testator, and was thus entitled, in case of intestacy, to a share in that brother’s estate almost equal to what he receives under the will. We regard it, therefore, as a significant circumstance bearing upon this question that the brother and legal adviser, who drew the will, was a beneficiary only to about the same extent as the other seven persons who, besides the widow, shared in the estate.

In The Matter of Bedlow (67 Hun, 412) it was said by the presiding justice, Yan Brunt : In the discussion of this question it is necessary that the court should consider the circumstances surrounding the testator at and about the time of the execution of the will, and subsequent thereto. It is urged that the testator was weak and easily influenced by those who surrounded him, which fact is a circumstance undoubtedly to be taken into consideration with the other evidence, but the mere fact that he was weak and easily influenced does not in itself raise the presumption that such influence was exercised simply because a will such as was satisfactory to the appellants had not been made by the testator. *' * And while it is undoubtedly true that it is always difficult to produce testimony showing undue influence over a testator, yet the mere fact that the opportunity of exercising undue influence has been afforded, and that benefits have resulted to those who had the opportunity of exercising such influence, by no means raises a presumption that such influence was exercised.”

In this case, with the opportunity afforded, had testator’s brother wished to exert an undue influence, as it was not exercised for his own particular advantage, we think the inference can be justly drawn either that he did not attempt it or that the testator was not amenable to such influence.

In disposing of the argument, based upon the unreasonableness of the will, but few words will suffice. As to the failure to provide for the three nieces who contest, the explanation is furnished by the testimony showing that the testator had little personal relations with them during his life, and never regarded them as objects of his bounty, and were it not for the failure to recognize the claim of the wife to a larger share in his estate, there’would be no basis upon which to urge that the will was unreasonable, because it was in all respects just such a will as it was most natural for the testator to make.

With respect to the wife, considering the part that she played in bringing- a fortune to her husband, in the amassing of his own wealth, and the care and solicitude which she exhibited — which latter 'was so assiduous as to be at times the subject of a complaint even on the part of the testator himself —■ there would appear to be just cause for dissatisfaction upon her part because she did not receive more of her husband’s estate; yet, on the other hand, the testator no doubt thought that the $140,000 which she owned in her own right, to which was added about $45,000 from his estate, was, considering her needs and childless condition, sufficient for her wants. As already said, however, unreasonableness in the disposition of a testator’s property is not a ground for disturbing it, but only a circumstance which may be considered, with other circumstances, appearing as bearing upon 'either the question of testamentary capacity or undue influence. We do not understand that it is here urged upon the question of testamentary capacity, but is insisted that because the testator had stated at different times that it was his intention to make up his wife’s fortune, together with what she herself possessed, to an amount equal to $250,000, that a failure to carry out this intention is indicative of the influence of some other mind in changing such intention.

As said in Horn v. Pullman (72 N. Y. 276): “ A change of testamentary intention, as bearing upon the allegation of undue influence in procuring a will, is sometimes an important circumstance, but its force depends mainly upon its connection with associated facts. * * * A testator has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will, and he may, if he choose, exclude his children, or divide his estate among them unequally. The question in all such cases is, was the will a free act of a competent testator ? The reasons for the change of intention in this case do not very satisfactorily appear.”

So in the case at bar we may say that if the testator had any such intention, the reason for the change in his views does not satisfactorily appear, but giving such weight to that circumstance as it is entitled to, in connection with the other facts here appearing, we think that the learned surrogate was right in his conclusion that at the time Mr. Sbaats executed these two papers he was capable in law of making a will, and that “ both the will and codicil were prepared by him, thought out by him, and executed by him without any improper interference.”

The decree should be affirmed, with costs against the appellants.

Follett and Parker, JJ., concurred.

Decree affirmed, with costs against the appellants.