author: Yan Brumt, P. J.:

text:
    John J. Russell, as Administrator, with the Will Annexed, of Mary A. Russell, Deceased, Respondent, v. Laura S. McCall, as Executrix, etc., of James McCall, Deceased, Appellant, Impleaded with Others.

      Election of remedies — money-judgment against a surviving partner — a bar to a subsequent action against one possessed of the firm assets.

    The personal representative of a deceased partner prosecuted an action against the surviving partner asking for an accounting, and for a personal judgment for the amount which might be found due, on a complaint which disclosed knowledge ■on the part of the representative of a misappropriation of assets by the surviving partner, and which alleged that he still had possession of assets of the firm, in which action a money judgment simply was entered in favor of the’ representative of the deceased partner against the surviving partner, for the amount for which he was found'accountable.

      Held, that the representative of the deceased partner was to be deemed to have a-lected not to impress a trust upon the firm assets, but to treat the surviving partner as a debtor to the extent of the interest of the deceased partner in the firm assets, and thereby to affirm the survivor’s title to the same, and his right to dispose of them for his own account; and that such representative was thereby barred from thereafter maintaining an action on the same cause of action for a money judgment to be paid out of such assets, against a third party who had become possessed of them through such surviving partner, with whom lie had entered into a partnership to continue the firm business.
    Appeal by tlie defendant, Laura S. McCall, as executrix of the last will and testament of James McCall, deceased, from a judgment of tlie Supreme Court, in favor of tlie plaintiff, rendered at tbe New York Special Term, and entered in tlie office of tlie clerk of the city and county of New York, on the 18th day of June, 1892.

      George Iloadly, for the appellant.

      P. A. Hendrick, for the respondent.
   Yan Brumt, P. J.:

I) pon the trial of this action the following facts appeared: Prior to February, 1880, the defendant, Schamu M. Moschowitz, and one Mary A. Russell, were copartners in the business of dressmaking at 299 Fifth avenue, New York city. In said February the said Mary A. Russell died, leaving a last will and testament, in which she designated her sister, Elizabeth L. Russell, as her executrix, who duly qualified, and subsequently having become Elizabeth L. Macdona, commenced this action, and having died, her brother, John J. Russell was appointed administrator, with the will annexed of said Mary A. Russell, and this action was revived and continued in hip name. At the time of the death of said Mary A. Russell the said copartnership was possessed of a large amount of assets and property in excess of its liabilities, which the said Schamu M. Moschowitz took possession of as surviving partner of the firm of Moschowitz & Russell and continued the business as theretofore carried on until the 1st of May, 1880. .Upon this day Schamu M. Moschowitz and James McCall formed a copartnership for carrying on said business, and under the name and style of Moschowitz & Russell and at the same place continued to carry on said dressmaking business as such copartners. The capital upon which said copartnership carried on business consisted of the assets and good will of the old firm of Moschowitz & Russell, of which said McCall had full knowledge. Upon entering into said copartnership Schamu M. Moschowitz and James McCall ascertained the value of the assets of said firm, and fixed and agreed upon the value thereof above all liabilities at the sum of $51,019.90. All the liabilities of said firm had been paid and discharged except a claim made by the defendant Herman Moschowitz for the sum of $40,000 claimed to be due for salary. The moneys realized from the sale of the assets and property of Moschowitz & Russell were used by the firm composed of Schamu M. Moschowitz and James McCall in purchasing new merchandise and paying the regular running expenses of the new business, and such assets and property and such new goods and merchandise were indiscriminately used in the business of the copartnership. On the 26th of October, 1880, Elizabeth L. Russell, as exequtrix of Mary A. Russell, commenced an action in this court against Schamu M. Moschowitz, alleging the copartnership between Russell & Moschowitz, and that a large amount of assets belonging to said copartnership over and above its liabilities at the time of the death of said Mary A. Russell came into the possession of Moschowitz as surviving partner, and that he with due diligence could have Wound up and closed out said business within a few months after the dissolution of said firm by the death of said Mary A. Russell, and have paid over to said plaintiff the share of said deceased in said copartnership business; that instead thereof the defendant had neglected so to do and had continued in possession of the place of business of said firm and said property and assets and continued to carry on the business and use the assets and property of said firm in said business and had made no efforts to sell and dispose of said assets and property, except in the ordinary course of said business, and that he had in his possession, not sold and ■undisposed of, the greater part of said assets and property, which were becoming less and less valuable; that plaintiff frequently requested the defendant to wind up the business, but the defendant had neglected so to do, and had not paid to the plaintiff as executrix any money or other proceeds of said copartnership, nor had he assigned, transferred or delivered to her any assets, securities or other jn’operty of the firm, or accounted with her in respect to the same. Then follows an allegation in respect to a claim upon the part of Moschowitz to use the firm name; and judgment is demanded that an account might be taken of all the dealings and transactions of said copartnership from the time of its commencement to the time of its dissolution by the death of Mary A. Russell, and that the defendant account for all his dealings and transactions in regard to the property, assets and effects of such copartnership since such dissolution, and that the defendant be adjudged to pay to the plaintiff any amount which might be due from him on such accounting, and that a receiver might be appointed and . an injunction issued. Issue was joined in said action and the same was duly referred, and tbe referee haying reported on tbe 4th of January, 1884, a judgment was duly entered in said action by which, after reciting that by said report it appears that tbe defendant, Scbamu JVI. Moscbowitz, as surviving partner of tbe firm of Moscbowitz & Russell, was chargeable witb tbe assets of said firm which came into bis bands as such surviving partner over and above all credits in tbe amount of $73,458.44 ; and that tbe jdaintiff, as successor of said deceased partner, was entitled to recover half of said balance of any assets subject to tbe provisions in said decree made for tbe deposit of a portion thereof ; and after reciting that it appeared by said report that Herman Moscbowitz was prosecuting a claim, etc., against said firm ; and after reciting that it appeared by said report that certain furniture belonging to said firm was in tbe possession of tbe plaintiff, and bad not been reduced to possession by tbe defendant, it was adjudged that tbe defendant, Scbamu M. Moscbowitz, within thirty days after tbe service of a copy of said judgment upon him, deposit in tbe United States Trust Company $44,000 to abide tbe event of said action brought by Herman Moscbowitz against said Scbamu M. Moscbowitz individually and as surviving partner of tbe firm of Moscbowitz & Russell, and then pending, said sum to be applied to tbe payment of any final judgment which should be obtained in said action, and the overplus if any, or in case no judgment should be obtained against tbe defendant, then tbe whole sum and interest at tbe final determination of said action to be divided equally between tbe defendant and tbe plaintiff, or her successor. It was further adjudged that tbe defendant forthwith reduce to possession tbe household furniture therein-before mentioned, and sell tbe same and pay over to tbe plaintiff half of tbe net proceeds after deducting tbe necessary and proper expenses of sale, etc. And it was further adjudged that tbe plaintiff recover of tbe defendant tbe further sum of $14,729.22, being tbe half of tbe remainder of tbe balance of net assets thereinbefore mentioned, after deducting said sum of $44,000, together witb costs and allowances. Subsequently, proceedings were bad by which tbe latter part of said judgment was modified, and said last-mentioned sum was reduced to $435.49.

That on tbe 1st day of January, 1881, tbe firm of which Moscbowitz and McCall were members was enlarged by tbe addition of a new member, the defendant, Herman Moschowitz, and the firm name changed to Moschowitz Bros. No new capital was contributed by the incoming member, and the remaining assets and property of the firm of Moschowitz & Russell were used by the new firm, and new goods and merchandise were purchased with the proceeds of such assets and property, and the same were indiscriminately used in the business of the copartnership of Moschowitz Bros.

In February, 1882, McCall began an action in the Court of Common Pleas against his copartners, the Moschowitzes, for a dissolution of said firm, an accounting, the appointment of a receiver and the issuance of an injunction. In March, 1882, Schamu M. Moschowitz was appointed receiver, and under the orders of the Court of Common Pleas continued to do business. In January, 1885, an interlocutory judgment was entered in this action, and the defendants appealed therefrom. Pending this appeal, said McCall died, leaving a last will and testament by which he appointed his widow his executrix, who was substituted in said action in the Common Pleas.

In January, 1888, this action was commenced by Elizabeth L. Macdona, as executrix of Mary A. Russell, deceased, against Schamu M. Moschowitz, Herman Moschowitz and Laura S. McCall, as executrix of James McCall, deceased, and Schamu M. Moschowitz, as receiver of the property and effects of Moschowitz Bros., and, after alleging the facts hereinbefore stated, and that Schamu M. Moschowitz was insolvent, demanded judgment that the judgment theretofore rendered in her favor in her suit against Schamu M. Moschowitz, as surviving partner of the firm of Moschowitz & Russell, be declared and adjudged to be a lien upon the assets of the business of Moschowitz & Russell and Moschowitz Bros., carried on after the death of Mary A. Russell, and of the property and assets-of Schamu M. Moschowitz as receiver; and that the lien or claim of the defendant, Laura S. McCall, as executrix, be adjudged and declared to be inferior and subordinate to the lien of this plaintiff upon said assets; and that the lien or claim of any of the defendant's in this action, creditors of the business carried on by the firms of Moschowitz & Russell and Moschowitz Bros., be declared to be inferior to the rights, claims and lien of this plaintiff in and to said assets; and that the judgment recovered by this plaintiff against Schamu M. Moschowitz be paid out of the funds in his hands so far as the same would go toward the liquidation, of said judgment; and that an injunction issue, and that the plaintiff have judgment against the defendants for $-.

The defendant, Schamu M. 'Moschowitz, answered, denying any copartnership with McCall, admitting the carrying on of the business of Moschowitz & Russell, with the property and assets of said firm, denying that the business formerly carried on was continued without any additional assets or capital, alleging that said business was carried on rightfully, and setting ’up as a bar the judgment obtained in the action of the plaintiff against Schamu M. Moschowitz above referred to.

The defendant, McCall, answered, denying any knowledge or information sufficient to form a belief as to most of the allegations contained in the complaint, and alleging that at the time of the death of Mary A. Russell, the firm of Moschowitz & Russell became and was dissolved, and that Schamu M. Moschowitz, who became and was the owner of all said property, etc., sold and disposed of the same, and was allowed by the executrix of the will of his said deceased partner, without restriction or interference, to sell or otherwise dispose of the same, and that for the interest or claim of said executrix for the share or interest of said deceased partner,, she, on the 4th of January, 1884, recovered a judgment against Schamu M. Moschowitz, as alleged in said complaint, which was afterwards modified, but that no lien or charge upon the assets of the firm was created or established by said judgment or otherwise,, and that said assets and property had prior thereto been lawfully-disposed of by the surviving partner, and upon information and belief claiming the funds in the hands of the receiver.

The issues were thereupon tried before the court without a jury at Special Term and before the decision, the plaintiff Macdona having died, an order was made reviving and continuing the action in the name of John J. Russell as administrator with the will annexed of Mary A. Russell, deceased. And a judgment was subsequently entered that said John J. Russell, as administrator,, recover of the defendant Laura S.‘ McCall, executrix of the last will and testament of James McCall, the sum of $22,435.49, with interest from the 1st of May, 1880, to the 16th of June, 1892, in the sum of $16,328.11, and costs and allowances duly adjusted at $919.27, making in all $39,682.87. From this judgment the present appeal is taken.

Certain irregularities are claimed in reference to the proceedings relating to the findings of fact by the court herein ; but in view of the conclusion at which we have arrived upon the main question involved, it becomes unnecessary for us to consider that point.

The principal question which is presented upon the foregoing facts is as to the right of the plaintiff to maintain this action against the defendant McCall, after having entered a money judgment against Schamu M. Moschowitz in the action brought by Elizabeth L. Russell, as executrix of Mary A. Russell against him for an accounting, and for a judgment for any amount which might appear to be due from him on such accounting, it being claimed upon the part of the appellant that the representative of the deceased partner, Mary A. Russell, by prosecuting the action for her share in the copartnership assets against the surviving partner Moschowitz alone, is barred from suing him again, joining McCall with him upon the same cause of action, because the plaintiff’s right of action herein is merged in the judgment recovered against Moschowitz, the survivor; and because the representative of the deceased partner, having recovered a personal judgment against the surviving partner for the _ value of the interest of the decedent in the firm’s estate, cannot after-wards claim against any person who took title to such assets from such survivor.

The learned court below in the disposition of this case in its opinion states that at the time the action for an accounting was brought the plaintiff therein was ignorant of the alleged misappropriation by Moschowitz and McCall, and being so ignorant by bringing such action “ she thereby made no election, for until she was made aware of the misappropriation there was no basis for an election. But even if she were fully advised of what had transpired, her action against the surviving partner would have been no bar to the present action. She had no legal interest in the assets of the late firm; Moschowitz by virtue of his survivorship became the legal owner of these assets, while Miss Russell’s executrix had but an equitable interest in the distribution of any surplus remaining after the payment of the debts. (Williams v. Whedon, 109 N. Y. 338.) The action which the plaintiff brought against the surviving partner Moschowitz was, therefore, an action to ascertain the amount and value of the deceased partner’s share of the assets of the late firm after the payment of its debts. It was in effect an action for the accounting which must precede any recovery against the surviving partner personally. It is clear, therefore, that the rules which govern with regard to trustees of trust funds are inapplicable. There the cestui que trust must elect whether to hold the unfaithful trustee personally responsible or to follow the trust fund into the hands of other persons. He cannot do both. Here there was no such trust fund. The assets did not belong to the estate of the deceased partner. Nor did the surviving partner hold the assets as an ordinary trustee for such estate. The estate had a right to require from him the proper liquidation of the business, the application of the assets to the payment of the partnership debts and the division of the surplus. These are the rights which the law confers upon the representatives of the deceased partner, and these the obligations which it imposes upon the surviving partner. (Knox v. Gye, L. R. [5 Eng. & I. App.] 656.)

' “ The surviving partner may be called,’ observed Lord "Westbuky, in the case cited, ‘ so far as these obligations extend, a trustee for the deceased partner.’ There is surely no inconsistency between the assertion of these rights and a subsequent action to compel the restoration of the partnership estate, by transferees in complicity with the surviving partner. Such an action is not antagonistic to the ordinary action for an accounting against the surviving partner, but is really in harmony with it, and even in aid of it. Its object is the same, namely, to secure the due application of the partnership assets in accordance with the rights of the deceased partner and the obligations of the survivor. If such assets are still in existence in specie, the court will require such application in accordance with equitable principles. If, however, such assets have been converted and misapplied, then the rights of the deceased partner can be adequately secured only by judgment in personam, against each and every person who has shared in the misappropriation of the partnership estate. In other words, the representative of the deceased partner may, by her action for an accounting against the surviving partner, secure a liquidation of the affairs of the firm, and have the balance coining to tlie estate judicially ascertained. But such representative may also require the application of the partnership assets in accordance with her rights, whether such assets are in the hands of the surviving partner alone or jointly with some other person who, without parting with value, simply shares the surviving partner’s, possession with full knowledge of his obligations. In case, however, the assets have been converted, and cannot, therefore, be specifically applied in accordance with the partnership rights and obligations, it. will naturally necessitate a personal judgment against those who-were thus jointly in possession of the property.”

It seems to us that in the foregoing reasoning the court lost sight of the fact that the representative of the deceased partner not only brought her action for an accounting, but also for a personal judgment against the surviving partner for the amount which, might be-found due from him, and that the judgment entered was simply a, money judgment against the surviving partner for the amount of assets for which he had been found to be accountable; and that the representative of the deceased partner having chosen to treat the surviving partner as a debtor to the extent of the interest of the deceased partner in the assets of the firm, he thereby affirmed his title to the same and his right to dispose of them for his own account.. It is a familiar principle that a party cannot recover from a person, who has obtained possession of property, the purchase price of that, property, and in addition thereto in a separate proceeding, impeach the title of persons who have come into the possession of that property through the original possessor. In the action brought by the representative of the deceased partner a trust upon the assets of the firm might have been impressed, and such seems to have been the theory upon which the present action was commenced. But having failed to do this, having treated the surviving partner as a debtor to the full amount of the assets, and obtained judgment against him for that amount, it is difficult to see how it is possible to pursue other people who have become possessed of those assets through the instrumentality of the surviving partner.

What is the result arising from the judgments which have been pntered in respect to this property % The plaintiff in this action has a judgment against Sehamu M. Moschowitz requiring him to deposit féé,000 in a trust company to meet the liabilities of the firm of' Moschowitz & Russell, such sum to be devoted to the payment of such liabilities when ascertained, and, if not exhausted in their liquidation, overplus to be equally divided between the parties and also a judgment for the amount of the assets taken by Moschowitz in excess of such $44,000. She has now also a judgment against the defendant McCall for over $22,000, being the one-half of the value of such assets, to which interest is to be added. And when this latter judgment is paid, if Moschowitz deposits his $44,000 in court and Herman Moschowitz succeeds or does not succeed in establishing his claim, the plaintiff will in the one case have such liability paid and will receive half the value of the assets independent of such liability, and in the other <fese will receive the money twice — $22,000 from the money deposited by Moschowitz and $22,000. from McCall; and thus in any event will in reality be receiving over $44,000 for the decedent’s interest in the assets of the firm of Moschowitz & Russell, which is adjudicated at twenty-two thousand odd dollars.

But it is urged that at the time of the filing of the bill for an accounting and the taking of the judgment in that action, the plaintiff therein was ignorant of the fact that the new firm had converted to its own use all the assets of the old firm, and that this relieves her from the result of the bringing of that action and ■ the taking of that judgment. If this were true, it might be a reason for relieving her from such judgment in a proceeding properly taken for that purpose. But it is hard to see how she can be deemed to have been in ignorance of the fact that the surviving partner was converting to his own use all the assets of the old firm, in view of the allegations of her complaint in that action. She alleges that the surviving partner had continued to carry on the business conducted by said firm prior to the death of said Mary A. Russell, and to use the assets and property of said firm in said business, and had made no effort to sell and dispose of said assets and property except in the ordinary course of said business, etc. This allegation shows that the plaintiff knew that the surviving partner was not liquidating the business, but was treating the assets as his own and conducting his own business therewith. It is true she also alleges that the defendant has in his possession, unsold and undisposed of, the greater part of said copartnership assets and property, and that the same are becoming less and less valuable. But notwithstanding this allegation by her.proeeeding in that action, she took no means whatever to reach said assets or to have them sold and the proceeds devoted to the liquidation of her claims, but contented herself with demanding nothing but a money judgment against the surviving partner for the value of the interest of the deceased partner in the firm. How could it be found, under these circumstances, that the suit was brought in ignorance of the misappropriation by the surviving partner of the assets of the firm, we cannot imagine. And there is no such finding contained in the record. But, with knowledge of such misappropriation and in the face of an allegation that the' surviving partner had still possession of a large amount of these assets, the plaintiff takes a personal judgment against him for the value of her share or interests therein. How can she then impeach the title of anybody who has come into possession of these assets through that surviving partner?

A. has converted goods belonging to B.; B. sues and obtains a money judgment, and A. transfers the property to O. Can B. recover against C. also ? Ve think not.

Fowler v. Bowery Savings Bank (23 Abb. N. C. 133) is a case which strikingly illustrates this principle. The plaintiff had deposited money with the defendant bank, which, under a mistake, paid it out to a third party named Flynn. The plaintiff, knowing of this, brought an action and secured a judgment against Flynn, and attempted to realize upon the judgment. Failing to do so, the plaintiff turned about and sued the bank, but the court held that fhe first action was a bar, and that having made an election the plaintiff was bound by it. The court say: “If a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then if he make payment to another person, he has not paid the debt, and the money paid is not in fact the property of the beneficiary. In such case the beneficiary may ignore payment and sue the trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor, but he cannot do both.”

So, in the case at bar, the plaintiff might have pursued the property, or, in default of its recovery, have obtained a judgment. But, having brought a suit with knowledge of the misappropriation and asked for a money judgment and obtained tbe same, be cannot pursue tbe property, as is attempted to be done in tbe present action. Tbe plaintiffs predecessor, at tlie time that slie brought tbe action for an accounting, was not ignorant of tbe misappropriation, as already stated. Sbe may bare been ignorant of tbe fact that others were interested in tbe misappropriation besides tbe surviving partner. And this might have afforded a reason for relief from tbe judgment against tbe surviving partner upon proper proceedings for that -purpose; but it forms no ground, after ratifying tbe misappropriation by tbe one party by obtaining a money judgment, for tbe obtaining of another money judgment against another party for tbe same cause of action.

We are of opinion, therefore, that tbe judgment must be' reversed and a new trial ordered, with c'osts to tbe appellant to abide tbe event.

Follett, J., concurred.

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


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    Edwin C. Donnell, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendant.

      Removal of an employee of a municipal department of the city of New York — action for salary

    An employee of one of the municipal departments of the city of New York was notified that he “was suspended from further duty in the department” from and after the date of the notice; some months thereafter, having received a notice that he was "reinstated”• in the department, at a certain salary, to take effect on the date thereof, he brought an action against the city for his salary for the period between the two notices, alleging that he had been unlawfully “suspended” from duty.

      Held, that the action could not be maintained, since it was apparent that the notice to the employee that he “was suspended from further duty” was intended and understood to sever his connection with the department, and was a ‘ ‘ removal ” from his position and not merely a temporary ‘ ‘ suspension ” from duty.
    Motion by tbe plaintiff, Edwin O. Donnell, for a new trial, on exceptions ordered to be beard in tbe first instance at tbe General Term, on a dismissal of the complaint at the New York Circuit on the 24th day of June, 1892.

      W. E. Cook, for the appellant,

      E. 3. Ba/wke, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover a sum alleged to be due to the plaintiff for salary as stenographer in the department of public wqrks in the city of New York for a period during which he alleges he was unlawfully suspended, from duty. The answer alleged the discharge of the plaintiff and the termination of his employment, and that after the expiration of the period covered by the action, he was re-employed in his old position.

The plaintiff claims that the case is controlled by the rule laid down by the Court of Appeals in the case of Gregory v. Mayor (113 N. Y. 416), it being urged that in that case it was held that an employee in one of the departments of the city of New York could not be suspended, but if he was unfit for the position which he occupied, or there was no work fpr him to do, it was the duty of the head of the department to remove him, and that he could not be suspended without pay, the court in that case saying: “ It seems to us that the power of removal in such a case as this was intrusted to the commissioners to be exercised, if at all, at once and finally. It was not meant that they should have power to arbitrarily suspend without pay, and then appoint some other in the place of the suspended man, and perhaps suspend arid remove the alternate and again appoint some other. The tendency would be to confuse instead of perfecting the service. The effect upon the suspended man would also be demoralizing, causing him to expend his time in efforts to get reinstated rather t^lian to procure a livelihood in other ways, which would be the result of a removal.”

It will be seen by the language used by the court that they speak of a man, who has been suspended, spending his time in efforts to get reinstated rather than to procure a livelihood in other ways.

I have been unablé to see what would be the necessity of a man who had been merely suspended being reinstated. If he had been removed he might seek.to get reinstated; but if he had never been removed there would be no place or position into which he could be reinstated.

In other words, he has got to be unseated before he can be reseated.

The facts in the case at bar are these: On the 31st of December, 1880, the plaintiff was appointed a stenographer in the department of public works at a salary of $1,200, to take effect on the 1st of January, 1881. On the 6th of April, 1886, he was informed that the services of two stenographers were not needed in the department, and it being the commissioner’s duty to dispense with any unnecessary force, he was suspended from further duty in the department from and after that date. On the 24th of September, 1886, he received the following notice: “You are hereby reinstated as stenographer in this department at a salary of $1,800 per annum, to take effect this day.” At the time of his reappointment, the plaintiff made no claim for salary for the time between the notice that his services were no longer required and his reinstatement, and although he stated that he tendered services to the department the evidence in that regard is quite shadowy.

It is urged upon the part of the defendant that no recovery can be had in this action upon several grounds, one of which is that he was not suspended but removed from his position, and subsequently reinstated ; and another is, that he was not an officer and did not have an office within the meaning of the statute.

In view of the conclusion at which we have arrived on the first ground upon which the complaint is dismissed it will not be necessary to discuss the second.

It is apparent that the plaintiff on the 6th of April, 1886, was removed from his position in the department of public works. He was then notified that the services of two stenographers were not needed in the department, and that he was suspended from further duty in the department from and after that date, and he did no further duty in the department until reinstated on the 24th of September, 1886. Now, when a person is suspended from further duty in the department, it is difficult to see what distinction there is between such a suspension and a removal. He was not suspended until some other time, or some other date, or until further notice. He was suspended from further duty in the department, from doing any other work and from rendering any other service in the department. And it was clearly the intention of the commissioner to remove him from the position which he then held; and, it was so Understood by the plaintiff.

That this was the intention is evidenced by the letter of September 24, 1886, by which he was reinstated in the position which he formerly held. If he had not been removed it was impossible to reinstate him. The very use of the word reinstated ” shows that it was understood that the plaintiff was being restored to a position from which he had been removed.

It is entirely immaterial what language was used in the notice of removal so long as it was the plain intent to sever his connection •with the department. And that such was the intention is manifest from the language of the notice which suspended him from further duty, apparently for all time. Nothing is said about his being suspended without pay, implying that he was to hold his position, do no work and get no pay. He was removed from further duty. If' the word “ removed ” had been actually used it would not have made the sentence any stronger. And if it had read you are removed from further duty in this department,” it could not be claimed for a moment that he had been suspended without pay.,

We think, therefore, that the exceptions should be overruled and the defendant have judgment upon the dismissal of the complaint in the court below, with costs.

O’Brien and Follett, JJ., concurred.

Exceptions overruled and judgment ordered for defendant upon the dismissal of the complaint in the court below, with costs.


author: Van Brunt, P. J.:

text:
    Henry P. Finlay and Another, Respondents, v. Placido de Castroverde, Appellant.

      Order of arrest — requisites of the affidavit.

    Ah affidavit for an order of arrest is a nullity unless it contains allegations establishing legal evidence of the existence of the facts to be shown.
    Where an affidavit for an order of arrest, although made by the plaintiff, and in the form of positive statements, contains allegations of material facts, deduced from, and based upon information derived from, correspondence, such allegations are of no probative force without the production of the original letters, so. that the court may draw its own conclusions therefrom.
    Appeal by the defendant, Placido de Castroverde, from an order of the Supreme Court, made at the New York Special Term, at Chambers, and entered in the office of the clerk of the city and county of New York on the 16th day of February, 1893, denying the defendant’s motion to vacate an order of arrest.

      Otto Ilerwitz, for the appellant.

      J. A. Shoudy, for the respondents.
   Van Brunt, P. J.:

This action was commenced hy the issuance of a summons and order of arrest accompanying the same. The summons and order of arrest being served, this motion was made upon the papers upon which the order was granted to vacate the same, and from the order denying the motion this appeal is taken.

The order was granted upon the affidavit of one of the plaintiffs, who swore that the plaintiffs were merchants, residing and doing business in the city of New York, and that the defendant, in January, 1891, was a merchant doing business in the city of Mexico, but. that he was informed and believed that the defendant had left the city of Mexico, and was, at the time of making the affidavit, in the city of New York; that in said month of January, the plaintiffs and defendant entered into an agreement in writing, signed by them, which was in the plaintiffs’ possession, and ready to be produced, by which it was provided that the defendant should become the sole agent in the republic of Mexico for the plaintiffs for the sale of certain merchandise; and that the plaintiffs, upon receipt of orders from the defendant, should sffip merchandise, which the defendant was to receive and account for, at certain prices therein named, and to render separate accounts of sales for every shipment, and to remit to them the amount due for the merchandise as soon as sold, whether the purchase-price had been received for said merchandise or not, the defendant taking the risk of all sales; and that in pursuance of this agreement, during the year 1891, and the months of April, May and August, the j)laintiffs made four shipments, amounting to the sum of $3,380.55, including a sum advanced by the plaintiffs for freight upon the merchandise; that the defendant was entitled to a ■credit of $152.13 for the balance due him on account of previous shipments, leaving $3,221.82 due the plaintiffs, no part of which had been paid.

The affidavit further stated that the defendant ^as to receive in consideration of his services, one-half of the net profits which might be realized upon the merchandise over and above the prices named, after deducting freight, duties and other actual charges; that the defendant received all of said merchandise prior to October 1, 1891, and acknowledged the receipt thereof by letters addressed to the plaintiffs, and which they .received in due course, and then had in their possession.

The affiant further stated that the defendant never made any remittance or payments on account of the merchandise and was entitled to no credit except as above mentioned; and that by letter dated October 1, 1891, the defendant -wrote to the plaintiffs that he had given np his business and had transferred this merchandise to make the firm of J. M. Gaston & Co., of that city. And then follows the legal conclusion that the defendant had no right or authority to make such transfer; and the allegation that the plaintiffs had since received a letter from said firm of Gaston & Co., to whom the •defendant said he had transferred said goods, in which they say that the defendant, before his departure from Mexico, and prior to his transfer to them, hypothecated all of said merchandise to the Bank ■of London and Mexico as security for a loan to him of $5,000, and that said firm could not account to plaintiffs for the proceeds of any •of said merchandise until said loans were paid; that defendant has never rendered any account in respect to said merchandise except hlie statement that he had turned the same over to Gaston & Oo.; that he had been several times to the city of New York, but had never called upon plaintiffs or reported to them in any way, and is now in the city of New York, but is endeavoring to conceal his presence in said city from the plaintiffs ; and that deponent believed the information received from Gaston & Co. to be true, and that the merchandise was received by the defendant in a fiduciary capacity and that he had wrongfully converted the same to the plaintiffs’ damage to the amount of $5,000.

It is urged up'on the part of the defendant that the motion to-vacate the order of arrest should have been granted because many of the material allegations of the affidavit upon which the order of arrest was founded were made upon information and belief, and derived from documents which were not produced, and that the allegations in the affidavit are simply conclusions, derived from an inspection of these documents, which it is the province of the court to draw and not of the affiant.

Upon the other hand, it is claimed by the respondents that the affidavit is not upon information and belief, nearly all the essential facts being within the knowledge of the affiant, and are stated positively. It is asserted that the making of the agreement, the shipping of the merchandise, the receipt thereof Toy the defendant, and- the acknowledgment of such receipt were all within the knowl-' edge of the plaintiff who made the affidavit. How the affiant, at New York, had personal knowledge of the receipt of these goods-in Mexico it is somewhat difficult to imagine. It may be that he believes they were received because he believes himself to have been informed by a letter of the defendant that he had received them, but he clearly had no personal knowledge of the fact. The only information that he claims to have had upon that point is the letter of the defendant acknowledging its receipt. Now, it is clear that if he was testifying upon the stand as a witness with respect to the receipt of these goods, he could not be heard to open his mouth without the production of the letter or accounting for its loss.

Hence, when we consider the difference between the allegations of a complaint and an affidavit, the former being allegations of fact to be supported by evidence to be subsequently given if not admitted, and the other furnishing the evidence to the court from which it can draw its own conclusions, it is apparent that allegations •of tliis character, without the production of the proof, have no probative force whatever.

It is undoubtedly true that plaintiffs had personal knowledge that no account had been rendered, but as to the transfer and conversion of the property, the whole allegation is based upon correspondence not a particle of which is produced.

Now, whether this correspondence bears out the construction which is placed upon it by the plaintiffs is for the court to determine and not the plaintiffs. These facts have been so frequently pointed out by this court that it seems hardly necessary to discuss them further.

In the case of Tim v. Smith (93 N. Y. 91) it was held that the affidavit of an attorney as to facts necessary to establish the validity-of an attachment was wholly insufficient, the court saying: “ It is difficult to see how an attorney can acquire such knowledge of the several facts required to be proved on this motion as entitles him to give legal evidence of their existence,” the court then expressly recognizing that an affidavit, unless it contains legal evidence of the existence of the facts to be established, is a nullity.

Applying this test to the affidavit in question, it is apparent that it does not at all comply with the rule.

Ve think that the order was wrong and should be reversed, with ten dollars costs and disbursements, and the motion granted. -

O’Brien and Follett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion granted.


author: Per Curiam :

text:
    David M. Koehler, as Sole Surviving Partner, etc., Appellant, v. Thomas Olsen, Respondent.

      Liquor license — the licensee’s interest in, cannot be reached by a ereditoi^s action.

    The interest or right of a debtor in a liquor license, the transfer of which is, by force of section 26 of chapter 401 of the Laws of 1892, entirely dependent upon the permission of the board of excise, and the granting of which permission is optional with the board, is not property which can be reached by a creditor’s action.
    Appeal by the plaintiff, David PI. Koehler, as sole surviving partner of the firm of D. PI. Koehler & Son, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 26th day of January, 1893, denying the plaintiff’s motion for a continuance of an injunction and the appointment of a receiver pendente Ute.

      Charles Goldzier, for the appellant.
   Per Curiam :

This action is brought by a judgment creditor, after execution and return, upon a claim that there are certain equitable and other assets possessed by the judgment debtor which he refuses to apply to the satisfaction of the execution. These consist of a lease, fixtures, furniture and license of a liquor saloon in which the defendant is alleged to carry on business.

With respect to this property, other than the license, it could be sold under execution, and as there is no allegation of fraudulent conveyance, or other cloud upon the title of the judgment debtor, resort to a judgment creditor’s action is entirely unnecessary.

The only question presented is as to whether or not such an action is justified by the allegation that the debtor is the owner of an excise license which cannot be taken upon execution, and which, therefore, it is necessary to obtain the aid of the court to reach. The solution of whether the action can be maintained for this purpose, and the relief to which the plaintiff thinks himself entitled accorded, must depend upon whether or not we consider such license property and capable of transfer.

Section 26 of chapter 401 of the Laws of 1892 provides: “A board of excise may * * * grant a written permission to the person or persons who, having a license from said board. * * * 2d. To sell, assign or transfer such license during the term for which it’ was granted, to any person or persons who may thereupon carry on such business upon the licensed premises during the balance of the term of such license,” etc.

The condition precedent to any transfer, as will be seen from this language, is the written permission of the board of excise to the transfer. It is, therefore, a personal privilege, which is not the subject of assignment or transfer without such permission, and we agree with the view of the judge below, that “ it is entirely optional with, the Excise Commissioners of Kings county to say whether they will allow a transfer of such license,” and that the interest or right which the debtor has in such license is not property which can be reached by a creditor’s action, as the court has no power to enforce its transfer.

There being no ground alleged upon which the action itself can be maintained, the incidental provision of relief asked for pendente lite of an injunction and receiver was properly refused. We think, therefore, that the order should be affirmed, with costs.

Present — Yan Brunt, P. L, O’Brien and Follett, JJ.

Order affirmed, with costs.


text:
    William S. O’Brien, Executor, and Frelove E. O’Brien, Executrix, etc., of Peter T. O’Brien, Deceased, Respondents, v. Peter R. Weiler, an Executor, etc., of Peter T. O’Brien, Deceased, and the said Peter R. Weiler, as Administrator, etc., of Sarah E. Weiler, Deceased.

      Savings banlc account — in the name of a father as gua/'dian of his da/ughter — competency of a witness, under section 829 of the Code of Givil Procedure — release by a legatee of his interest in the money in dispute — declarations by an attorney.

    A father made a gift to his daughter, by opening a savings bank account in his-name as guardian of his daughter, in which the deposit accumulated for several years, at the end of which time the father invested money of his own, equal to-the amount of the account at that time, in certain bonds, and delivered them to Ms daughter in lieu of the hank account, and they were so accepted by her; the hank account continued, and the'father and daughter having died, their respective representatives claimed the money standing to the credit of the account.

      Held, that the father’s estate was entitled to the money.
    A legatee may become a competent witness, under section 839 of the Code. of Civil Procedure, to testify to transactions or commumcations with Ms testator, in an action brought simply to collect a debt due to the testator’s estate, by releasing all Ms claim and interest in and to the money involved in the action.
    A witness who, by giving such a release, has ceased to be interested in the event of the litigation, becomes as competent a witness for all purposes as though he never had any interest whatever, under the testator’s will, in the particular money involved in the action.
    The fact that an attorney had been employed by a testator to draw certain papers does not import an employment for the purpose of making declarations in respect to the testator’s property, and a party seeking to introduce such declarations must first establish by evidence that the attorney was authorized to make such declarations for his client.
    Appeal by tbe defendant, Peter R. Weiler, an executor of Peter T. O’Brien, deceased, and tbe administrator of Sarab E. Weiler, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, rendered on a trial at tbe New York Special Term, and entered in tbe office of tbe clerk of tbe city and county of New York on tbe 21st day of December, 1892.
    Tbe action was originally brought by tbe plaintiffs, William S. O’Brien and Erelove E. O’Brien, an executor and tbe executrix of tbe will of Peter T. O’Brien, deceased, against tbe Citizens’ Savings Bank of tbe city of New York, to recover, tbe sum of $3,076.73, which tbe plaintiffs claimed was on deposit in that bank to tbe credit of then’ testator at tbe time of bis death.
    Peter R. Weiler, who was a son-in-law of said Peter T. O’Brien and also one of bis executors, refused to join with tbe plaintiffs, because be claimed the said money, which was actually on deposit to tbe credit of “ Peter T. O’Brien, guardian of Sarab E. O’Brien,” as administrator of bis deceased wife, who was the said Sarab E. O’Brien and daughter of tbe said Peter T. O’Brien. By order of the court, Weiler was brought in as defendant, tbe action being really to determine tbe ownership of said moneys, and tbe bank was stricken out as a defendant and ordered to bold tbe account to tbe credit of tbe action.

      Other facts appear from the opinion of the trial judge (Ingraham, J.) at Special Term, which is as follows:
    “ It appears in this ’case that Peter T. O’Brien, the plaintiffs testator, opened an account on January 3, 1811, in the Citizens’ Savings Bank, by depositing $2,500. The account was opened in the name of Peter T. O’Brien as guardian for Elizabeth O’Brien, which appears to have been subsequently changed to the full name •of his daughter who was the beneficiary, viz., Sarah E. O’Brien. .
    “ Under the authorities in this State such a deposit was undoubtedly a declaration of trust whereby Peter T. O’Brien became trustee-for his daughter for the sum deposited, and such a deposit was a valid gift which vested the title in himself as such guardian or trustee, and upon his death, or upon his' daughter’s arriving at the age of twenty-one she would be entitled to the money so deposited, and all subsequent deposits in the same account, whether interest or new deposits, also vested in plaintiffs testator as the guardian or trustee for his daughter, and became her property.
    “ This principle is firmly established in this State, and it is not necessary to cite authorities to sustain it.
    “The sole question is whether or not the plaintiff’s testator accounted to his daughter for the amount that he held as her guardian or trustee.
    “A consideration of the testimony, I think, establishes that the plaintiff has established by a preponderance of evidence that there was such an accounting, and an investment of the -amount so deposited, and which was on deposit in the bank, in the Second Avenue Bailroad Company bonds, and that they were delivered to his daughter.
    “It appears that in January, 1881, plaintiffs testator purchased three one-thousand-dollar Second Avenue railroad bonds, for which he paid over $3,200, and that said bonds were delivered to his daughter with a statement that they were the proceeds of the money in the savings bank.
    “ That fact is proved by the testimony of the plaintiffs testator’s widow, and, so far as she testified to conversations between her husband and her daughter in which the witness took no part, I think that the testimony is competent.
    “ Her evidence proves that it was the sum of money deposited in the savings bank tbat plaintiff’s testator had assumed to invest in tbe bonds, and tbat tbe bonds were delivered to and accepted by his daughter.

      “ By tbe deposit of tbe money in tbe savings bank, plaintiff’s testator did not surrender control over tbe money. It was in bis possession as guardian or trustee for bis daughter, and as such guardian or trustee be retained tbe evidence of tbe indebtedness of tbe savings bank for tbe money. Tbat tbat act was not inconsistent with tbe intention to give tbe money to tbe daughter is well settled, but on its appearing tbat tbat • money still in bis possession and under bis control bad been invested by him in securities that bad been delivered to tbe beneficiary as all tbe money in tbe savings bank to her credit, and she accepted them as suck, bis obbgation to her was at an end, and tbe money, although standing in bis name as trustee or guardian, was bis own.
    “ There was a question reserved as to some declarations of tbe daughter made to tbe plaintiff’s testator’s widow. On consideration, I have come to tbe conclusion tbat tbe widow is not competent to testify as to such declarations as were m§de directly to her as against tbe defendant, who is tbe daughter’s administrator, and such declarar tions consequently must be stricken out.

      “ I think, therefore, plaintiff is entitled to judgment, but under tbe circumstances, without costs.”

      Jnc. D. Townsend, for tbe appellant.

      Abram Kling, for tbe respondent.
   Yan Brunt, P. J.:

We might very well rest our decision in tbe affirmance of tbe judgment in this case upon tbe opinion of tbe court below.

But as certain exceptions to tbe admission of evidence have been taken, it will be necessary to notice these in tbe disposition of this appeal.

It is claimed that it was error to permit tbe widow of tbe testator t.o testify to conversations between her husband and tbe deceased daughter regarding tbe ownership of tbe property which is tbe subject of this action, it being claimed tbat under section 829 of tbe Code of Civil Procedure she was excluded from testifying. Tbe widow was entitled under tbe will of her husband to tbe income of bis estate, real and personal, during her life, and at her death her 'associate plaintiff succeeds to her interest. ' It appeared, however, upon the trial, that the witness, for the purpose of becoming such witness, had executed a release, whereby she released and discharged the estate of and from all interest or claim she might have to the moneys involved in this action, or the income thereof; and upon the introduction of such release the testimony of the witness was received.

It' is claimed that because the witness did not release all her interest in the estate, or which she might acquire under the will, therefore she was not competent. It- is undoubtedly true that a legatee or devisee under a will is incompetent to testify to personal transactions or communications with the deceased preceding, attending or succeeding the execution of the will, in support of which proposition various authorities may be cited. But it is equally true • that a party may become competent by releasing his interest in the subject-matter involved; and,- therefore, when the witness released and discharged the estate of and from all interest or claim she might have in and to the moneys involved in this action, she was no longer a party or person interested in the event of the action, and consequently did not come within the prohibition of section 829. All the cases cited by the learned counsel for the appellant in support of the claim that there must be a release of all interest under the will in order to enable a legatee or person interested in the will to become a competent witness as to personal transactions or communications between the witness and the testator, were those relating to the validity of the will itself, and consequently, without such a general release, interest still remained. Those cases, therefore, are entirely different from one in which'it is simply sought to collect a debt due to the estate; and, as already observed, where the legatee under the will releases all his interest in or claim to such debt or any income derivable therefrom, it is apparent that all interest in the event of the litigation has ceased, and the witness has become competent. The mere fact that such release swells the interest of other legatees, does not in any way continue the interest of the witness who has released the same.

The claim that there was no evidence to sustain the finding of the court below to the effect that the testator advanced out of his .own money the sum invested for the use of his daughter in the purchase of the Second Avenue railroad bonds, and that his daughter received the same as the equivalent of her money deposited in the bank, is certainly not well taken. The evidence of the widow was clearly to the effect that the daughter acccepted the bonds purchased by her husband in lieu of the money deposited in the bank; and even if the books of the bank showed that no money had • been taken from the bank at the time, but that the interest continued to accumulate until the death of the testator, it was a substitution of the bonds for the money, by and with the- consent of the beneficiary.

The claim that it was error so permit the widow as the mother of-the deceased daughter, to testify to conversations she claimed to have had with her, not in the presence of the testator, in regard to the property which is the subject of this action, does not seem to have any foundation. It is claimed that the release given and put in evidence was not applicable to the daughter, and, therefore, did not make her mother a competent witness. The question was not whether it was applicable to the daughter or not. The point-was that by the giving of the release the'widow had ceased to be interested in the event of-the litigation, and, therefore, she was just as competent a witness as though she never had any interest whatever-in this particular money under the will óf her husband.

The claim as to the right of proving the custom of the bank when they struck out the name of a party in a pass book was entirely immaterial. The witness was asked as to the facts, and he testified that the striking out of the name in the pass book he did not think had been done at "the bank, and the defendant had the benefit of this evidence, and it seems to us that that was going as far as the rules of evidence, could possibly justify. What this bank was' accustomed to do under these particular circumstances clearly could not be evidence as against the deceased.

The only other objection was to the exclusion of certain evidence as to declarations made by an attorney, who drew certain papers for the deceased, shortly after the execution of those papers. It is true that in the question the witness was asked whether he did not have such conversation with the attorney as the representative of the deceased, and when the witness said that he did have such conversation, he was asked what it was. This was objected to and the objection sustained. But it is clear that an attorney who. was employed by tbe testator to draw papers was not also employed by him for the purpose of making declarations in respect to his property. If it was claimed upon the part of the defendant that such declarations were competent, it certainly was their duty to first establish by evidence the fact that the attorney was authorized to make such declarations on behalf of his client before the court would be justified in entertaining for a moment the admission of such testimony.

Upon the whole case we are of opinion that no errors were committed and that the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: Follett, <7. : Yan Brunt, P. J.:

text:
    Simon Docter, Respondent, v. William A. Darling, Appellant.

      Building restrictions, an incvmibram.ce upon land. — damages therefor, under a covenant against incumbrances — measure of damages.

    The owner of certain premises in New York city, who had acquired the property by an unrestricted warranty deed, containing a covenant against incumbrances, contracted to sell it unrestricted for a certain price, but the vendee having discovered in the owner’s chain of title a deed creating restrictions as to the character of buildings to be erected on the land, refused to complete the purchase.
    The owner thereafter found a purchaser for the property as restricted, and thereupon sold it subject to the restrictions for a less sum than on the unrestricted sale, and then sued his grantor for damages and recovered.

      Held, on appeal, that the jury having found that the restrictions upon the land diminished its value, such restrictions were incumbrances within the meaning of the covenant against incumbrances;
    That oral evidence, offered by the defendant to show that the plaintiff knew of the limitation upon the right to use the premises when he took his deed, was properly rejected;
    That it was not error to refuse to permit the defendant to show, as a defense to the action, that the use to which property in the neighborhood was put had so changed that a Court of equity would not restrain the owner of the lot from using it for the prohibited purposes;
    That the case not being one of total eviction, but only of a partial restriction upon full enjoyment, the question involved was the damage the restriction caused to the plaintiff, and the amount of this damage was to be measured by the difference in value of the property, unrestricted and restricted; and that as bearing upon tlia evidence of this difference in value furnished by the diffeunce in price on the unrestricted and the restricted sale, evidence of the amount expended hy the plaintiff upon the property in necessary improvements, between the dates of the unrestricted and the restricted sale, was properly admitted for the consideration of the jury (Follett, J., dissenting);
    That the plaintiff could not recover interest upon the amount of his damages— there being no authority for the recovery of interest on damages arising from a breach of a covenant against incumbrances, when the incumbrance is permanent in its nature.
    Appeal by tbe defendant, 'William A. Darling, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on the 20th day of February, 1892, upon a verdict in favor of the plaintiff rendered at the New York Circuit, and from an order entered in said office on. the 3d day of March, 1892, denying the defendant’s motion for a new trial made upon the minutes.
    January 13, 1874, a lot seventy feet wide east and west and one hundred and five-twelfths feet long north and south, and situate on the north side of East Sixty-third street, was conveyed in fee by a full covenant warranty deed (duly recorded January 1, 1874) to William Hyams, subject to the following restrictions :
    “ And the said party of the second part for himself, his heirs, executors, administrators or assigns, or any of them, shall not nor will erect or build or cause or suffer to be erected or built upon the lot of land hereby granted, or upon any part thereof, any building or structure of any kind, description or character whatever, fences excepted, other than good and substantial dwelling houses at least three stories in height above the basement, constructed of brick or stone, having roofs covered with slate or metal, which said houses shall be erected or built in such manner as to cover the whole width of the said lot of land, leaving no alleys' or passages communicating from the street to the yards other than the ordinary halls or entries in such houses contained, and shall have the exterior face of the front walls constructed of stone, built upon a line parallel with, and distant five feet from the northerly side or line of Sixty-third street, and measuring at least forty feet from the established grade of said Sixty-third street to the upper line or top of the cornice or eaves trough. And that the said party of the second part, his heirs, executors, administrators or assigns, shall not use or suffer the said dwelling house to be used or altered so as to be used for any tenement, community house, stable, theater or other place of public amusement, or any manufactory, trade or business whatsoever, or for any other purpose which may be noxious or offensive to the neighboring inhabitants, and will keep the hereby granted lot of land during such time as there shall be no building erected or being, or prepared for, or in process of erection thereon, free and unobstructed except by necessary fences.”
    January 31, 1871, Hyams conveyed the lot by a full covenant warranty deed (duly recorded February 3, 187J) to Thomas McManus, subject to the same restrictions. May thirty-first, William A. Darling, defendant, acquired title to the lot through several mesne conveyances, all of which were duly recorded, but no reference was made to said restrictions in any of them. February-15, 1886, Darling conveyed the lot to Rebecca Childs in consideration of $53,000, by a warranty deed, which contained a covenant that the premises were unincumbered except by-certain mortgages, which were specified. September 21,' 1888, Mrs. Childs contracted to sell the premises to Herman Wronkow for $52,500, and to convey them free from all incumbrances except certain mortgages, which were specified. Upon an examination of the records, Wronkow discovered the restrictions contained in the deed to Hyams, and refused to perforin his contract. The premises were sold through brokers, to whom Mrs. Childs paid' $350 for their services. Wronkow paid $175 for searching the title, which she paid to him. On the resale hereinafter mentioned she paid to the brokers $250. In February, 1889, Mrs. Childs expended $550 in altering and extending the plumbing on the premises, pursuant to an order of the board of health. May 31, 1889, Mrs. Childs, in consideration of $50,000, conveyed the premises to Griffin Tompkins, subject to the covenants contained in the deed to Hyams, and October 29, 1889, she assigned to the plaintiff all causes of action against Darling arising out of the breach of covenant against incumbrances.
    November é, 1889, this action was brought to-recover the damages for the breach of the covenant, which were alleged to be $2,500, the difference between the price agreed to be paid by Wronkow and the price paid by Tompkins, the sum paid to Wronkow for the expense of searching the title, and the amount paid to brokers' for making the two salés. On the trial the plaintiff was allowed, to to prove without objection, although it was not claimed in the complaint, the payment of $550 for extending and repairing the plumbing and sewers. The defendant, in his answer, alleged that Mrs. Childs before she purchased the property was informed of the restrictions contained in the deed to Hyams, and that by the changed situation of the neighborhood in which the property was situated, the restrictions had become inoperative and waived by the owners of property in the vicinity.
    On the trial the court ruled that the plaintiff was not entitled to recover the sums paid the brokers for effecting the sales or the sum paid for searching the title, but ruled that the measure of damages was the difference between the value of the premises unrestricted (which could not be deemed more than $5,800, the price, she paid Darling), and restricted as they were, and $550, the expense of repairing the plumbing, if those repairs were fairly done and really improved the property to the extent of the sum paid therefor.
    The jury rendered a verdict for $3,050, with $570 interest. The, $3,050 is equal to the difference between the price which Wronkow agreed to pay and the sum for which she subsequently sold the premises to Griffin Tompkins, and $550, the sum paid- for plumbing.

      A. J. Dittenhoefer, for the appellant

      Sol Kolm, for the respondent.
   Follett, <7. :

The jury having found that the limitations upon the right to use the lot contained in -the deed to Hyams diminished its value, the restrictions are incumbrances within the meaning of the covenant against incumbrances. (Prescott v. Trueman, 4 Mass. 627-629; Wetmore v. Bruce, 118 N. Y. 319; Trustees v. Lynch, 70 id. 440; Raw. Cov. [4th ed.] 95; 2 Wash. R. P. *659 [4th ed.], 460.)

On the trial, the defendant offered to show by oral evidence that Mrs. Childs knew of the limitations upon the right to use the premises when she took her deed, which, under the plaintiff’s objection, was refused. This was not error (Huyck v. Andrews, 113 N. Y. 81-85), nor was it error to refuse to permit the defendant to show that the use to which the property was put in the neighborhood had so changed that a court of equity would not restrain, the owner of the lot from using it for the prohibited- purposes.. The fact that the limitations could or might not be enforced by an injunction would be no defense to an action at law for the recovery of the damages, if any were occasioned by violations of the restrictions. This evidence was not offered as bearing upon the question of the amount of damages recoverable in the action, but as a defense to it, besides great liberality was shown both sides in the admission of evidence upon the question as to how much the value of the property was diminished by the restrictions.

The plaintiff recovered $550 expended by Mrs. Childs for plumbing and sewers between the date of the rescission of the executory contract of sale with Wronkow, and the date of the conveyance to Tompkins. The evidence of these expenditures was sufficiently objected to by the defendant, but the objection was overruled and an exception taken, which was error. Upon a breach of a covenant of seizin or quiet enjoyment the value or expense of improvements made by the evicted grantee cannot be recovered as a part of his damages. (Pitcher v. Livingston, 4 Johns. 1; Bernnet v. Jenkins, 13 id. 50; Murray v. Ballou, 1 Johns. Ch. 566-577; Dimmick v. Lockwood, 10 Wend. 142; Kinney v. Watts, 14 id. 38; Peters v. McKeon, 4 Den. 546-550; Willson v. Willson, 25 N. H. 229; Raw. Cov. [4th ed.] 235 et seq.; Sedg. Dam. [8th ed.] § 958; Mayne Dam. [2d ed.] 147.)

The cost or value of improvements put upon the property not being recoverable in case the entire estate is lost by the failure of the principal covenants, it is difficult to see on what principle their value or cost can be recovered when the worth of the estate is simply diminished through the failure of a subordinate covenant. In some cases the same measure of damages may be recovered upon breach of a covenant against incumbrances as upon a breach of a covenant of seizin. For example, when the incumbrance is foreclosed and the grantee is evicted.

The measure of damages caused by an incumbrance cannot be greater when the grantee is not evicted than it is in the case of an eviction. There may be cases in which the value or expense of improvements may be recoverable, as in a case of a covenant given with special reference to contemplated improvements by the grantee, but that is not this case.

It is apparent, we think, from the instructions of the court and the verdict of the jury, that the item for plumbing was included as a part of the damages recovered. Upon this question the court said:

“You will also remember that between the time when "Wronkow withdrew from his first contract and the time when he again came forward, Mrs. Childs put certain repairs upon the property, plumbing, etc., for which she paid $550. It is quite immaterial, in the aspect of the case which I am now considering, whether these repairs were done by order of the board of health, or merely because Mrs. Childs wished to improve her property; the fact is that the property.was improved to the extent of the $550 of repairs put upon it, and the plaintiff’s claim is that that sum should be added in your minds to the $52,500 which Wronkow was to pay for the property before the repairs were made. If the repairs were fairly done and really improved the property to the extent of $550, the plaintiff thus claims that the property, treated as free from this restriction, was worth $52,500, which Wronkow was willing to pay, plus the $550 subsequently put upon it, viz., $53,050, and that when Mrs. Childs was only able to sell it as restricted after the repairs had been put upon it for $50,000, there was a depreciation, caused by the restriction, of $3,050. That is the view which the plaintiff takes of it, and the view which he seeks to impress upon you.”

The jury rendered a verdict for $3,050, showing, we think, that the $550 were added to the $52,500, and the price which the premises were sold for, $50,000, deducted. To this sum, interest to the amount of $570 was added, which made up the verdict of $3,620.

It is true that no exception was taken by the defendant to this part of the charge, but it shows the use which the jury was permitted to make of the evidence of the amount paid for plumbing, and that the error in admitting this evidence affected the verdict.

The court erred in permitting a recovery for this item.

"When a grantee has been evicted from the subject of the grant, and becomes entitled to recover as damages the consideration of the conveyance, he is entitled to interest as compensation for the mesne' profits for six years, which he is liable to pay to the true owner. (Staats v. Ten Eyck, 3 Cai. 111-115; Pitcher v. Livingston, 4 Johns. 1—13; Caulkins v. Harris, 9 id. 324; Bennet v. Jenkins, 13 id. 50; Kinney v. Watts, 14 Wend. 38-40; Peters v. McKeon, 4 Den. 546-549; Raw. Cov. [4th ed.] 600; 3 Sedg. Dam. [8th ed.] § 966.)

If the incumbrance is security for a debt, less in amount than the consideration paid for the land, and the grantee is compelled to pay it to relieve his property, he may recover the amount with interest.(Pitcher v. Livingston, 4 Johns. 1-10; Dimmick v. Lockwood, 10 Wend. 142-151.) But we find no case holding that interest may be recovered on damages arising from a breach of a covenant against incumbrances when the incumbrance is permanent in its nature.

. Foi’, in such a case, the measure of the damages is- the difference of the value of the premises with and without the incumbrance, and are necessarily unliquidated. Interest upon such damages is not allowable in actions on contracts.- No question was raised as to whether the differencé in value should be ascertained as of the date of the conveyance by Darling to Mrs. Childs, the covenant then being broken, or as of the date of the conveyance by Mrs. Childs to Griffin Tompkins, and the question need not be considered. The allowance of interest was error.

Fortunately, this case was so clearly tried, and the different items recovered so distinctly stated, that ,we are not required to reverse the judgment and put the parties to the expense, and the courts to the trouble, of a new trial.

• The, judgment should be modified by striking therefrom the item of $550 for improvements, and $570 allowed for interest, and, as modified, affirmed, without cost, in the General Term, to either party.

Yan Brunt, P. J.:

While concurring generally in the opinion of Mr. Justice Follett herein, I do not accede to the proposition that it was error to admit the evidence as to the amount expended on the plumbing of the premises. It is true that the plaintiff could not recover for the amount thus expended; but as evidence was offered to show what the premises brought when sold unrestricted, and what they subsequently brought when sold restricted, for the purpose of giving some guide as to the damage caused by the restriction, the admissibility of which evidence is not objected to here, if there was any change in the condition of the premises between the time of the two sales, this certainly affected the value pf the evidence thus offered. If they had been injured by the elements, the defendant could certainly have shown that, and, therefore, it seems to me, if they had been rendered more valuable by the- necessary repairs, the plaintiff might show that, as bearing upon the 'value of . the evidence of the sale subsequent to the repairs. This was the view in which the court submitted the question to the jury. .They were instructed that if the repairs really improved the property’ to the amount expended for them, they might take this into consideration in determining what the property was worth unrestricted and restricted.

It is undoubtedly true that upon a breach of seizin or quiet enjoyment, the value or expense of improvements made by the evicted grantee cannot be proved as part of the damages, but in the case at bar there was no such recovery. The question under investigation was the damage by the restriction caused to the grantee. There was no total eviction, but only a partial restriction upon full enjoyment. The amount of this damage was a question between grantor and grantee, and was measured by the difference in value unrestricted and restricted. Evidence being given of a sale restricted, what had been done with and to the property subsequent to the original sale unrestricted, was certainly competent to show what weight should be given by the jury to this evidence of the restricted sale.

I am of the opinion, therefore, that no error was committed in the admission of this evidence.

As shown by Mr. Justice Eollett, the allowance of interest was error. I think that the judgment should be reduced by amount of interest, $570, and, as modified, affirmed, without costs.

O’Brien, J., concurred.

Judgment reduced by amount of interest, $570, and as modified, affirmed, without costs.


author: Follett, J.: O’Brien, J.: Yan Brunt, P. J.

text:
    The People of the State of New York, Respondeat, v. James Connor, Appellant.

      Receiving stolen goods — identification of the property.

    On the trial of an indictment for receiving stolen property, it was established that a burglary of a store and the larceny therefrom of cigars packed in cigar boxes were committed on a certain night, and that at about one o’clock of the same night the defendant was ■ seen .in the immediate neighborhood of the burglary (with companions who, on being approached, ran away), having a bag in his possession, and that on being accosted by one of the witnesses and asked what he had in the bag, the defendant said: “Nothing that belongs to you.”
    It did not appear that any one then saw the contents of the bag, but the same witness testified that he then put his hand into the bag and found that “the bag was full of cigar boxes, whatever kind of boxes you may call them, chalk boxes or any kind of boxes; ” and that the defendant then said: “ This is none of your stuff; don’t telLthe coppers.”
    It appeared that the defendant, on being subsequently charged with the offense, made false statements as to his whereabouts on the night in question, and on the trial testified, as a witness in his own behalf, that he did not have a bag in the neighborhood in question on that night.

      Held, that the evidence was sufficient to justify the view that the defendant had cigar boxes in his possession.
    That the evidence, in connection with the defendant’s conduct, his subsequent prevarication, and all the circumstances, was sufficient to support the finding of the jury that the contents of the bag in the defendant’s possession were the fruits of the burglary and larceny (Van Brunt, P, J., dissenting).
    Appeal by tbe defendant, James Connor, from a judgment of tbe Court of General Sessions of tbe Peace, beld in and for tbe city and county of New York, rendered on the 4th day of December, 1891, and entered in tbe office of tbe clerk of that court, convicting tbe defendant of tbe crime of receiving stolen goods, knowing them to be stolen, as a second offense.

      William F. Howe, for the appellant.

      Henry JB. JB. Stapler, for tbe People, respondent.
   Follett, J.:

The defendant was charged in tbe indictment (1st count) with having on tbe 26th day of September, 1891, committed tbe crime of burglary in tbe third degree, by breaking and entering a store on tbe corner of Tenth avenue and West Fifteenth street, known as No. 25 Tenth avenue, and with having (2d count) on the same date and at the same place committed the crime of grand larceny in the second degree, and also (3d count) with, at the same date and place, feloniously receiving 7,000 cigars which had been stolen at the date and place aforesaid. Each crime was charged as a second offense.

The defendant was .convicted on the third count and sentenced to imprisonment in a State prison for seven years.

It was conceded on the trial that a burglary was committed by some person or persons at the date and place as charged. A witness, who was not contradicted, impeached nor discredited, testified that 7,000 cigars of the value of $216, were stolen from the building on the night in question, so it was established that a burglary and larceny had been committed. The cigars were packed in boxes, some containing fifty, and others 100 cigars. Sullivan, a watchman, and a most unwilling witness, testified, that about one o’clock in the morning of September twenty-sixth, he saw two or three men near the corner of Fifteenth street and Tenth avenue with a bag, and that he ran across the street to stop them, and they all ran away but one, who remained with the bag. He further testified that he asked the man what he had in the bag, and he replied, “ Nothing that belongs to you.” Thereupon he put his hand into the bag and found that it contained boxes that felt like cigar boxes, but he did not look at them. He said : The bag was full of cigar boxes, whatever kind •of boxes you may - call them, chalk boxes, or any kind of boxes.” The man with the bag said to the witness: “ This is none of your stuff. Don’t tell the coppers.” This' vigilant watchman made no reply but walked away. “ Copper ” signifies policeman. This witness testified that he could not' exactly tell whether the man with the bag- was the defendant or not, but three other witnesses, Heffner, Fagan and Ryan, testified that they knew Connor, were .at this corner about one o’clock of September twenty-sixth, and .saw Connor with the bag, and in conversation with Sullivan.

Heffner and Fagan testified that they saw Connor drag the bag across Fifteenth street. Ryan testified that he saw Connor have the bag on his shoulder. Darrigan testified that he saw Connor-about midnight on September twenty-fifth, one block away from the place •of the burglary. On the fifth of October, Policeman Burleigh had a conversation with the defendant in which he said that he did not commit the .burglary, but went to his own house, 48 Tenth avenae, at about eleven o’clock in the evening and did not go out until the next morning. The defendant, testifying in his own behalf, said that he did not steal the cigars and that he did not have a bag in that street or neighborhood on the night in question. The defendant admitted that in 1876 he was convicted of burglary and was imprisoned ten months. That in October, 1887, he was convicted of grand larceny, on a plea of guilty, and was imprisoned two years.

The jury was entirely justified in disbelieving the defendant, who was self-impeached, and in believing the other witnesses. The fact that the defendant at about one o’clock on the morning of September twenty-sixth, was in the street near the scene of the burglary with companions, who escaped on being approached, and that he had in his possession a bag, was well established. It was further testified that the defendant tacitly admitted that the property in the bag was stolen. He said to Sullivan : “ There is nothing in the bag that belongs to you. It is none of your stuff. Don’t tell the coppers.” The defendant on being charged with the offense made false statements as to his whereabouts on the night in question. That a burglary was committed was conceded. That cigars in boxes were taken from the building was established by uncontradicted evidence, and that the defendant was found in the immediate neighborhood at about one o’clock in the morning with a bag containing boxes, is established beyond question.' The only weak point that is claimed exists in the evidence is, that no person saw the boxes. This is not a fatal objection. The identity of many articles can be as certainly acquired by the sense of touch as by sight. The shape, size, weight and covering of cigar boxes are matters well known to ordinary observers, and a person familiar with cigars and cigar boxes would have little difficulty in determining by the sense of touch whether they contained cigars. The remark of the witness that they might have been chalk boxes, is not entitled to much consideration, as the difference between the specific gravity of chalk and cigars is very apparent. The identification would have been more perfect had the witness seen the boxes, opened them, smelled and tasted the contents. But the evidence given was competent, relevant, and in connection with the defendant’s conduct, his subsequent prevarication and all of the circumstances were sufficient to ■ support the finding of the jury that the contents of the bag were the.fruits of the burglary and larceny. Perfect identification is seldom-, possible of goods sold by count, weight or measure, and impossible-in the case of perfect coins or bank notes. Had a bank been robbed of coin in bags, and they had been put in a sack, the testimony of a bank employee, familiar with such bags, that he handled them, but did not see them and that they were bags of coin, would be compe•tent. It is urged that the learned recorder erred in criticising, in his charge, the manner of the witness Daniel Sullivan when on the stand. "We think not, for it is clear that he was unwilling tó testify to what he knew of’ the transaction and of the defendant’s connection with it.

It is said that the recorder erred in saying to the jury that Darrigan testified that he saw the defendant near 25 Tenth avenue at one o’clock in the morning, when the fact was that he testified that he saw him about twelve o’clock. No exception was taken to this instruction nor was the attention of the court called to the misstatement of time. Other witnesses testified to seeing the defendant' in the vicinity near one o’clock. The charge fairly and correctly presented the facts and laid down the rules of law applicable to them. We do not see that any error was committed on the trial, and the judgment should be affirmed.

O’Brien, J.:

My first impression was that there was not sufficient evidence to justify the view that defendant had cigar boxes in his possession. Without such evidence, the judgment must necessarily fall. My associates, however, have both reached a different conclusion upon this question, and with their reasoning I agree.

With this established, I think the conclusion upon the entire case reached by Mr. Justice Eollett is correct, and I, therefore, concur with him for-affirmance. •

Yan Brunt, P. J.

(dissenting):

I cannot agree in the conclusion arrived at by Mr. Justice Eollett. I fail to find in the record a scintilla of evidence going to show that the defendant had in his possession at the time in ques■tion any property which had been stolen from anywhere, which ¡seems to be necessary in order to support a conviction for the -■offense of receiving stolen goods.

It is true that the evidence shows that a burglary had been committed and that certain cigars packed in boxes had been stolen; and that there was evidence which would justify the jury in finding that the defendant liad, in the vicinity of the alleged burglary shortly after it had been committed, cigar boxes in his possession. But that these cigar boxes were any of those which had been stolen there is not a particle of evidence to prove. "Without identifying the property in the hands of the alleged receiver with goods which had been stolen, it is difficult to see how he can be convicted of ¡receiving stolen goods.

The mere fact that he acted suspiciously, and that he made a ■statement which showed that he was not particularly anxious to make the acquaintance of the police, is undoubtedly true. But even that did not make him guilty of receiving stolen goods^ the proceeds •of this burglary. As already stated, there is not a particle of evidence showing the identity between the goods which this man had •and any goods which had been stolen from any place. And yet, because he acted suspiciously and did not want to have the police interview him, he is convicted of receiving stolen goods.

1 do not think that there was any evidence whatever to support the conviction, and the jury should have been advised to acquit, and the judgment should be reversed and a new trial ordered.

Judgment affirmed.


author: O’Brien, J.: Van Brunt, P. J.:

text:
    Lena Finelite, Appellant, v. Alexander Finelite, Respondent.

      Jfewly-discovered evidence — tending to impeach the credibility of a witness — laches.

    After the entry of j udgment in favor of the defendant, on a trial by the court without a jury, at which the whole case turned upon an interview between several ■of the witnesses, including the defendant, the plaintiff moved for a new trial ■on the ground of newly-discovered evidence; the new evidence, disclosed by the affidavits in support of the motion, was that of persons who were not present at said interview, and was directed simply towards impeaching the credibility of the statements of the defendant and one of his witnesses as to -what occurred at the interview, by showing the existence of a hostile temper on the part oí the defendant towards the plaintiff, and of a disposition on the part of the witness to support' the defendant in his position of hostility, but having no direct bearing upon what occurred at the interview; the motion was denied by the trial judge.

      Held, on an appeal from the order denying the motion, that the new evidence might not materially affect the conclusion to be reached by the trial judge, after hearing the testimony of all the witnesses who were actually present at the interview; that'whether it would or not affect his conclusion, could be best determined by the trial judge himself, and that his disposition of the motion should not be disturbed.
    It appeared that the action was tried in February, 1891; that the plaintiff thereafter made a number of motions, including motions to open defaults and a motion to change conditions imposed upon granting an extension of time to serve a case on appeal; this last motion was denied, but the plaintiff subsequently applied for leave to renew it, which application was disposed of in February, 1892, by an order which, upon condition of the withdrawal of notice of appeal, permitted the plaintiff to make a motion for a new trial on the ground of newly-discovered evidence; such a motion was made in July, 1892, and from the order denying it, the present appeal was taken.

      Semble, that the motion should have been denied because of laches.

    Appeal by the plaintiff, Lena Finelite, from an order of tbe Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 24th day of October, 1892, denying a motion made by the plaintiff on the 11th day of July, 1892, for a new trial on the ground of newly-discovered evidence.
    The action was tried by the court, without a jury, at the New York Special Term, in February, 1891, and resulted in a judgment in favor of the defendant, rendered and entered on the 4th day of March, 1891.

      George W. Stephens, for the appellant.

      Abram Kling, for the respondent.
   O’Brien, J.:

This action was brought to substitute as grantee, the plaintiff ifi. the place of the defendant, in a certain deed made by Jacob Finelite and wife. It was alleged that a deed from Jacob to plaintiff had been placed in the possession of the defendant for safe-keeping, and that he fraudulently erased the plaintiff’s name as grantee in the deed and placed his own instead, and caused the same to be recorded. This being denied by the defendant, the issue was presented and tried, resulting in the court’s finding as a fact that, although the original deed was made out to the plaintiff as grantee, she and the grantors consented to her name being erased and that of the defendant being substituted as grantee, and that, after such erasure and substitution, it was duly acknowledged and recorded.

The number of motions subsequently made upon the part of the plaintiff to open defaults and to change conditions upon granting an extension of time to serve a case upon appeal, and for various other purposes, presents a voluminous and somewhat unusual record. It is unnecessary, however, for us to recite in detail all the various steps taken by the plaintiff subsequent to the trial to evade the conclusions reached by the trial judge, and seeking in some other form to present for review his decision, all of which were rendered futile by plaintiff’s failure to comply with' the terms upon which an appeal was allowed, finally resulting in a dismissal of the appeal.

The trial of this action took place in February, 1891, and these several motions were from time to time presented during the year following, and among the others, ah application for leave to renew the motion, which had been denied, to relieve the plaintiff from certain conditions. This application was disposed of on the 29th of February, 1892, by an order which, upon condition of the withdrawal of her notice of appeal to the General Term, permitted the plaintiff to make the motion for a new trial on the ground of newly-discovered evidence. This was subsequently made before the judge who tried the case, resulting in a denial of the motion; and it is from the order entered thereon that this appeal is taken.

The testimony which it is claimed the new witnesses would give was presented in the shape of affidavits upon the motion for leave to renew above referred to, and the learned judge who heard that motion said: “ The statements made by the affiants IVIargowski and Wilson in their respective affidavits appear to me to be most improbable.” Their force and potency when again presented upon the motion for a new trial do not seem to have impressed the judge who tried the case, and who was in the best position to determine what effect, if any, they could have upon the conclusion reached by him. One of these affiants, Margowski, made his affidavit on August sixth, and Wilson in November, 1891; and no very satisfactory reason is given for the delay in making this motion, the idea seemingly being, as shown by the motion made resulting in the order of February, 1892, that plaintiff was desirous of pressing her appeal, and it was rnly upon her being denied relief from the conditions imposed that this motion upon newly-discovered evidence was resorted to. Were it not for the fact that the judge in his order gave leave to make the motion upon newly-discovered evidence, we should be inclined to think that the plaintiff had waited too long.

Assuming, however, that there was no laches, the question remains whether or not the statements made by the new witnesses were of such a character as to be credited, and if so, whether they would have been likely to change the result.

The statements of the affiant Margowski are directed to showing that Abraham Finelite, who was a witness on behalf of his brother, had in his presence and that of the defendant, made statements which were inconsistent with the testimony which such witness gave upon the trial, and tending to show that he had gone into an arrangement with the defendant to cheat the plaintiff out of the property which was the subject involved in the litigation. The statements in the affidavits of Wilson are directed against the defendant, and purport to rehearse a conversation between himself and the defendant, showing the defendant’s hostile disposition to his mother, which took the shape of an assertion by the defendant that he would take the property away from her “ even if he knew he would go to State’s prison for it.” >

It will thus be noticed that these affidavits are directed towards impeaching the credibility of the statements of the defendant and one of his witnesses upon the stand. From the answering affidavits as to the character of these affiants and their attitude towards the defendant, it may well be questioned whether their statements would have any such effect. But whatever force such testimony might have as showing a disposition upon the part of the defendant to prevent the plaintiff retaining the title to the projierty, this in no way throws light upon the situation which was presented when the parties met upon the day when it was claimed the erasure was made, and from which the trial judge reached his conclusion that the plaintiff’s contention had not been sustained. In his opinion he says: “ The defendant Alexander drew the deed * * * and took it to his mother and had a conversation with her respecting it, other members of the family being present. "What occurred on that occasion is decisive of the case.”

The affidavits of the witnesses, which it is claimed present newly-discovered evidence, have, as stated, no direct bearing upon what occurred at that interview between the plaintiff and the defendant and the other members of the family. It is not claimed by either Margowski or "Wilson that they were present upon that occasion or that they knew anything about what then occurred, their statements being directed to show, as stated, that, the defendant was disposed to assume a hostile attitude to the plaintiff and to insist upon her not having the title to the property. The fact that he said he would accomplish this, even if he had to go to State’s prison for it, might, if his testimony was unsupported, have considerable weight. But where, as here, the whole case turned upon the interview between several witnesses, all of whom were examined upon the trial, the temper of the defendant’s mind, or the disposition of his brother Abraham to support him in his view that he should have the property, might not materially affect the conclusion to be reached by the trial judge after hearing the testimony of all the witnesses who were actually present at the interview. Whether it would or not could be best determined by the trial judge himself, and he, after an examination of these affidavits, has concluded that the motion upon this ground of newly-discovered evidence should be denied.

We do not think that there is sufficient shown to justify our interfering with the disposition thus made by the trial 'judge, and we are of opinion that the order appealed from should be affirmed, with costs.

Van Brunt, P. J.:

I am of the opinion that the motion should have been denied because of laohes. I also think that it was rightfully denied upon the merits. I concur.

Follbtt, J., concurred.

Order affirmed, with costs.