author: ÜARDIN, P. J.:

text:
    David Murphy and Another, Respondents, v. The Stickley Simonds Company, Appellant, Impleaded with Another.

      Foreclosure of a mechanic’s lien ■— substantial performance of a building contract is sufficient — defcmlt, in the time of completion —equity.

    Upon the trial of an action brought to foreclose a mechanic’s lien, for the amount claimed to be due upon a building contract, the question whether there was a substantial performance of the contract, under which the lien under foreclosure was filed, is one of fact to be determined upon all the evidence and circumstances relating thereto, and a substantial performance of the contract is sufficient to sustain the lien.
    Where the failure to complete a building contract, within the time specified therein for the completion thereof, is due to a delay caused by the owner of the building which is the subject of the contract, the failure to complete it within such time does not prevent the recovery by the contractor of the contract price.
    The question of the substantial performance of a contract by a contractor depends somewhat upon his good faith. If he has intended and tried to comply with the contract and has succeeded, except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission.
    Where there has been a substantial performance of a contract, and there are minor defects and deficiencies which can be compensated for in damages, a recovery should be allowed for the amount justly and equitably due to the contractor.
    An action brought to foreclose a mechanic’s lien is an action in equity, and the court will use every effort to do substantial justice between the parties.

      Appeal by tlie defendant, Tbe Stickley Simonds Company, from a judgment of tbe Supreme Court in favor of tbe plaintiffs, entered In tbe office of tbe clerk of tlie county of Onondaga on the 3d day -of April, 1894, upon tbe report of a referee, with notice of an intention to bring up for review on sucli appeal tbe said judgment, the referee’s report, and all questions of fact and law', tbe exceptions taken upon tbe trial and tbe exceptions to tbe report of tbe referee and bis refusal to find.
    Tbe referee awarded damages for the balance due upon a building -contract, and also $450 for extra work performed and materials furnished to tlie appellant, finding a total amount in favor of tbe plaintiffs for damages of $5,416.66, including interest. Defendant took several exceptions during tbe progress of tbe trial, and filed exceptions to tlie referee’s report, and to refusals of certain requests made for further findings.

      F. J. Farrington, Jr., for tbe appellant.

      •W. P. Qarmon, for tbe respondents.
   ÜARDIN, P. J.:

Plaintiffs, co-partners and contractors, on the 4th day of May, 1892, entered into a contract with tbe Stickley Simonds Company -of tbe city of Auburn, to furnish materials necessary for tbe erection .and completion of all work, according to plans and specifications prepared by an architect, for tlie erection of a factory building at Eastwood Heights near the easterly limits of tbe city of Syracuse, and the defendant stipulated to pay therefor the sum of $22,000, payments to be made “ during the progress of the work upon the -estimate of tbe architect.” The owner reserved “ the privilege of ■changing any part of tbe labor or materials without in any way invalidating tbe contract.” Tbe contract contained a provision, viz.: All questions arising under this contract as far as labor, materials, etc., may be concerned, shall be decided by tbe architect, and his •decision shall be binding and final.” It was' provided in tbe specifications, viz.: “ Tbe proprietors shall have the right to make any alterations, additions or omissions of work or materials herein ■specified or shown on tbe plans, during tlie progress of tbe work, that he may find necessary, and the same shall be acceded to by the contractor or contractors and carried into effect without in any way violating or vitiating the contract.” It was further provided in the specifications, viz.: “ The architect and proprietors shall have full power at any time during the progress of the work to reject any materials that they may deem unsuitable for the purposes for which they are intended, or which are not in strict conformity with the spirit of these specifications.”

On the 10th of October, 1892, the architect having made an inspection of the factory building, certified that John "W. Gee has “satisfactorily completed his contract for carpenter work on the same, and is entitled to the balance of money due by the terms of the contract.” On the 10th of October, 1892, the contractors verified a claim and notice of a lien, and filed the same with the clerk of Onondaga county, in which they claim the principal sum of $8,723.40 and interest from the 10th of October, 1892, “for the price and value of such labor and service and materials, upon such house, building or factory and appurtenances, and upon the lot, premises, parcel and farm of land upon which the same stands.” Prior to the filing of the lien several payments had been made upon the contract, and the next day after the same was filed, to wit, on October 11, 1892, the further payment of $2,250 was made on the contract, and on the 9th of January, 1893, this action was commenced to foreclose the mechanic’s lien, and the amended complaint asked to recover the balance of $6,543.40, and $600 for extra work. The defendant The Stickley Simonds Company answered admitting the execution of the contract and alleged its non-performance and set up certain defects and counterclaimed therefor. The referee found as matter of fact, viz.: “ The plaintiffs, under and pursuant to the terms of said contract, substantially performed the work and furnished the materials called for by said plans and specifications for the erection of said factory building, and substantially complied with said contract.” That finding is challenged by the appellant. Upon the hearing extensive evidence was given upon the question involved in the finding in behalf of the plaintiffs, and evidence tending to the contrary was offered by the appellant. We are of the opinion that the finding made by the referee is not against the weight of evidence, and that his conclusion upon the whole evidence in that regard should be accepted. It is now well settled that whether there was a substantial performance is a question of fact to be determined upon all the evidence and circumstances relating thereto. (Phillip v. Gallant, 62 N. Y. 257; Glacius v. Black, 50 id. 145 ; Nolan v. Whitney, 88 id. 648 ; Lewis v. Yagel, 77 Hun, 336.) And it has been held in numerous cases that a substantial performance of a building contract is sufficient to sustain the right of a lien. (Wright v. Roberts, 43 Hun, 413; Van Clief v. Van Vechten, 48 id. 304; Hollister v. Mott, 32 N. Y. St. Repr. 743 ; Heckmann v. Pinkney, 81 N. Y. 211; Lewis v. Yagel, 77 Hun, 336; Van Clief v.Van Vechten, 130 N. Y. 579.) In Van Clief v. Van Vechten (supra) Vann, J., said: “ The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the contract and has succeeded, except as tp some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission.” (See page 579.) It is contended in behalf of the appellant that the plaintiffs willfully refused and neglected' to perform the contract according to the plans and specifications. Upon looking into the evidence before the referee we are of the opinion that it does not 'sustain the contention of the appellant, but, on the contrary, it warrants the conclusion that the defects and deficiencies for which the referee awarded damages to the appellant did not accrue by reason of any intentional or willful purpose on the part of the contractors. (Van Clief v.Van Vechten, 130 N. Y. 571-579; Lewis v. Yagel, supra.) Although the contract was not completed within the time specified there was evidence warranting 'a finding that the failure was due to the delay which the defendant caused, and, therefore, such failure to complete does not prevent a recovery. (Beinhauer v. Gleason, 15 N. Y. St. Repr. 227; S. C. affd., 119 N. Y. 658; Close v. Clark, 9 N. Y. Supp. 538.) It seems the appellant failed to procure a switch from the railroad company so that the materials could be brought to the location of the building, and the appellant caused some delay by failure to get machinery in the building, and the evidence discloses sufficient basis for a finding that the defendant waived the stipulation in the contract in regard to the time of completion of the contract. (Smith v. Alker, 102 N. Y. 87.) The referee specifies several minor defects and deficiencies which were disclosed by the evidence and allows damages to the defendant in such sums as he deemed, upon the evidence, sufficient to remedy the defects and deficiencies. He found that it was worth only $150 to repair and properly set the window frames and sasli in the building according to contract and specifications. It is contended in behalf of the appellant that the allowance is not sufficient, and that there was no other evidence than that given by Miles T. Gardinier, a witness who was called in behalf of the defendant, and who, upon that subject, said: It would be worth aOetween 400 and 500 dollars in order to put these windows and frames in a proper condition ; the frames would have to be taken out, fixed and reset, and the sash refitted.” The contention of the appellant 'in that regard cannot prevail. Colton, the architect, in the course ■of his cross-examination, testified: “ I will swear positively that those windows could be properly constructed or reconstructed the day I was there in a half day by the best carpenter or workman,” and he gave other evidence bearing upon the question of remedying the supposed defects in the windows. Inasmuch as the referee’s finding is upon conflicting evidence, it should prevail. (Scattergood v. Wood, 14 Hun, 269 ; Sinclair v. Tallmadge, 35 Barb. 602; Roosa v. Smith, 17 Hun, 138.)

It is contended by the appellant that the findings of the referee are in conflict, inasmuch as after finding that there was a substantial performance of the contract he has found several minor defects and awarded damages therefor. It appears, however, that the contract price for the building was $22,000, and that the amount of damages •which, were allowed for the defects or deficiencies amounted to only about six per cent of the original contract price, and we think the referee kept within the rule which provides that where there has been a substantial performance of the contract, and there are minor •defects and deficiencies which can be compensated in damages, a recovery should be allowed for the amount justly and equitably •found due to the contractors.

Appellant contends that the lien filed is invalid, and contends that the plaintiffs well knew at the time it was filed that they had not actually completed all the work and furnished all the materials called for by their contract. The assumption of the appellant is contrary to the evidence offered by the plaintiffs, and the appellant invites our attention to Foster v. Schneider (50 Hun, 151), wbicli differs quite essentially from the case before us. There a plumbing contract had been made in respect to three houses, and when the lien was filed confessedly a large portion of the work had not been performed. The contract price was $2,400, and the referee found that the sum of $860 for services and materials would be required to complete the contract, and that on one of the houses it would require $330; and in Close v. Clark (30 N. Y. St. Repr. 672), it was said, viz.: Confessedly, they (the contractors) had not attempted to provide several things called for by the contract,” and reference was made to Foster v. Schneider (supra), and the notice was held to be insufficient. ¥e think that case differs from the one in hand, as here the plaintiffs, according to the findings, had substantially performed all the work and furnished all of the materials to complete their contract and in good faith intended to complete the same, although it appears from the evidence there were subsequently found some defects and deficiencies for which compensation has been allowed by the referee. Besides, there is some evidence iir the case tending to show that the building had been accepted and that the defendant had waived any defects; and as bearing upon that view of the case is the circumstance that after the lien was filed the defendant voluntarily paid $2,250 towards liquidation of its liability upon the contract as a completed contract.

(2) We think that the defendant was not prejudiced by the refusal of the referee to take the opinion of the witness as to how far it was necessary to remove the benches to avoid the dampness coming into the windows. The fact was received that the snow comes in and that dampness occurred by reason of the defects in the windows. We think the referee was sufficiently liberal in taking the facts relating to that subject.

(3) Nor do we think it was prejudicial error for the referee to allow, in the exercise of his discretion, the liberal latitude in the cross-examination of the witness Gardinier with a view of affecting Ms credibility.

(4) Nor do we think it was error to allow the witness Gee to state the experience he had had in the construction of buildings, with a view of qualifying him to speak upon the various questions upon which he was examined.

In Close v. Clark (30 N. Y. St. Repr. 672), which was an action to foreclose a mechanic’s lien, the court observed : “ This is an action in equity, and the court would, therefore, use every effort to do substantial justice between the parties.”

The learned referee has exercised his sound judgment upon the sundry questions presented to him on the trial, and we are inclined to the opinion that his conclusion is in accordance with the rules of law and in furtherance of justice and equity.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: HaediN, P. J. :

license: Public Domain

text:
    John Miller, as Administrator, etc., of Willard Miller, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence of a railroad company — contributory negligence of a trameler on a highway— inferences from facts to be drawn by the jury.

    The negligence of a railroad company does not excuse a traveler on a highway from exercising care on his part, in looking and listening before crossing- the railroad tracks of such company in order to escape the danger of moving trains. When, upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate, by reason of the alleged negligence of the defendant, there is a conflict in the evidence in respect to some of the important circumstances relating to the conduct of the deceased on the occasion of the injury, if the solution of such conflict of evidence is within the province of the jury, the jury must also determine what inference should be drawn from the facts which it may find to have been established under the circumstances disclosed by the evidence relating to the question of the intestate’s freedom from contributory negligence.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 12th day of December, 1893, upon the verdict of a jury rendered after a trial at the Herkimer Circuit, and also from an order entered in said clerk’s office on the 9th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said order.

      O. D. Prescott, for the appellant.

      Myron G. Bronner, for the respondent.
   HaediN, P. J. :

Plaintiffs intestate was a young man about eighteen years of age. In the early part of the day of February 1, 1892, he left his home in Jacksonburg, a hamlet three miles west of Little Falls on the south side of the river, and upon reaching Little Falls mingled with the crowd -watching the ruins of a large fire that occurred on the morning of that day in Main street, and during the day was accompanied with a brother-in-law, House, visiting various parts of the village until about half-past seven, when, together, they took a horse and cutter from the Girvan House and drove to the corner of Main and Second streets to obtain some confectionery, and from there they passed westerly along Main street until they reached Lock street, which is the most westerly street in the village of Little Falls leading to bridges across the Mohawk river. They turned to the left from Main street into Lock street, which passes nearly north .•and south, and crosses the tracks of the defendant at right angles. Lock street is about ninety feet in length from the southerly side of Main street to the north side of the tracks of the defendant. On the westerly side of Lock street are several buildings, one, a barn, fronting on Lock street, the main portion of which is thirty-six feet, and there is an addition to t]iat barn that is about twelve feet in width on Lock street, and a distance of some eleven feet south of the addition to the barn is a building known as the “ Cold Storage Building ” or “Armour Building,” and south of that is a platform ■connected by a spur or stub connecting with the main tracks of the ■defendant, used for the purpose of moving freight cars in front of the storage building. In front of the storage building, facing the defendant’s track, is a platform of about three feet in width, which is about three feet high above the level of the street. The length of the cold storage building is about sixty feet along the railroad. "West of the cold storage are some other buildings. On the opposite or easterly side of Lock street are several buildings, and after passing over defendant’s tracks along,Lock street there is a dyke and buildings to the east of the street, and still further south is the first ■span of the bridge across to the Hansen island, and from that island to the southerly shore of the river another bridge. These bridges were built and put in use about the year 1892, and during the year when the bridge at the foot of Ann street, or including a portion of Bridge street, was destroyed. The people residing south of the river and in the westerly portion of the village were accustomed to use Hansen bridges and Lopk street as a means of ingress to and egress from the village. The decedent had frequently passed over the Hansen bridges and along Lock street in visiting and returning from the village. The deceased was driving the horse and seated on the right hand side of the cutter, and his companion, House, on the left hand side on the seat, and as they neared the tracks of the defendant a freight train on track No. 4 (which is the northerly track) was passing eastwardly, and by reason of that, when they were a few feet from the spur, they halted the horse and waited till the passage of the train east, and when the rear car thereof had passed some 300 feet eastwardly the horse was started up, and,, according to one of the witnesses, on a shack, and, according to one-of the witnesses, on a walk. A train known as No. 42, or Syracuse- and Albany accommodation, passing eastwardly on track No. 1 at a rate of twenty or twenty-five miles an hour, came in collision with the horse and cutter, causing the death of the plaintiff’s intestate. House was found some twenty or twenty-live feet east of the crossing between tracks 1 and 2. The body of the horse was fifteen or twenty feet further east between the same tracks, and the deceased was twenty feet still further east between tracks 1 and 2. The witnesses say: “ It was a snowy night; not very dark nor very light.” The train was due at Little Falls at seven-fifty-three, and being a few minutes behind time, reached there at seven-fifty-five. The witness House testified that when opposite the northeast corner of the storage building in the traveled part of the street, in the middle of the street, they stopped, having driven up to the crossing ; the freight train was going east, and the deceased waited until the train had got by and looked that way, that is, east, and the witness adds, I looked east — turned and looked east — and the train had got down by so that they were about in a line with the dike works. I turned around like that (indicating), and Miller sat in the cutter, and when I looked around like that (indicating) he spoke to the horse, and she started on a shack. I kind of turned my head east, and he drove on the track, and when I turned around to look west the cars were right on us. When I turned around and looked west he was in the act of like this (indicating). That is all I remember. Q. Of pulling back on the reins ? A. Yes, sir; while we were waiting, at least, I listened. "When the horse was standing there, as the train was going east, he sat with his lines in both hands, and when, the train had got down, and I looked east and' turned around he sat like that, leaning forward (illustrating), something similar to that. Q. That is, he sat with a rein in each hand ? A. Yes, sir; a rein in each hand, leaning kind of forward, as I looked around like that (illustrating), and Miller spoke to the horse to go on.” The witness adds that the deceased was reining in the. horse at the time the train struck them, and that at the time he saw Miller pulling back he saw the train on No. 1 track; “it seemed when I looked around that it was coming right on'to mo. Perhaps a second’s or something like that warning. Just as I looked around I saw it coming. It was snowing a little. A very dull heavy night j cloudy somewhat.” There is considerable conflicting evidence as to some of the essential facts and circumstances relating to the question of the defendant’s negligence, and the question of the freedom of the plaintiff’s intestate from negligence on the occasion of the accident.

(1) Several witnesses say that prior to the collision they observed the train approaching from the west which' caused the injuries, and that the whistle was not blown nor the bell rung. One witness, who observed the train when it was within 100 feet of the crossing, testified positively that no whistle was sounded or bell rung. The witness House says he did not hear any bell; that he was listening and that the whistle did not blow. The witness Eysaman testified that he resided some 100 or 500 feet west of the Lock street crossing, and that when the Little Falls accommodation was passing that night “ I (he) stood out of doors on the west side of my yard. I noticed that train pass by my place; the bell was not ringing; the whistle was not blowing.” And in the course of his cross-examination he said : “ The location where I claim to have noticed in regard to the bell or whistle was between four or five hundred feet west of the Lock street crossing. I noticed the train, and ,1 am confident that it was not ringing.” The witness Prall testified that he lived in the first house west of the Lock street crossing, and that he noticed-the train coming in that evening; that his windows were open south towards the railroad, and that he was about to shut his blinds when the train went by ; and he adds: The whistle of the train was not blowing; the bell was not ringing.”

On the other hand, the defendant called several witnesses who ■ testified that the station signal was given; that the whistle was blown and that the bell was rung before reaching, and at the time of reaching, the crossing. In the course of the charge delivered by the learned trial judge he called attention to the conflict in the evidence in respect to the management of the train and to the different statements made by the witnesses as to whether the boll was rung or whistle sounded, and fairly and squarely submitted to the jury the question in respect to whether the defendant, under the circumstances disclosed by the evidence, was guilty of negligence which produced the collision. We think the evidence required the judge to submit the question as to the defendant’s negligence to the jury, and that their verdict in that regard is controlling here. (Massoth v. D. & H. C. Co., 64 N. Y. 534; Bechwith v. N. Y. C. & H. R. R. R. Co., 54 Hun, 446 ; S. C. affd., 125 N. Y. 759.)

(2) The learned counsel for the appellant raises a close and critical question as to whether, under the evidence given, the plaintiff’s intestate was shown to be free from contributory negligence, and whether the-facts and circumstances were such as to warrant the inference on the part of the jury that he had exercised that care and caution which the law exacts from a party who is about to pass over the tracks of a steam railroad. Undoubtedly the negligence of the defendant does not excuse a traveler on the highway from exercising care on his part in looking and listening before crossing the railroad tracks in order to escape the danger of moving trains.” (Cullen v. D. & H. C. Co., 113 N. Y. 667.) In that case the evidence warranted a strong inference that the party neither looked nor listened, and there was no reasonable ground for the supposition that he was in a position where he had to choose between two imminent perils, and that he could not have escaped one without encountering the other. Here there is a conflict as to some of the material facts relating to the question of the deceased’s freedom from negligence. It is insisted, and proof is given tending to support the contention, that no car stood on the spur in front of the cold storage building on the occasion of the accident. Considerable evidence is given by the defendant to support that contention. On the other hand, there is evidence to the effect that there was a car standing on the spur in front of the cold storage building, and that it projected beyond the east end of the building. House testifies: “ It stood out in Lock street considerably; it projected beyond the east end of the cold storage building; it was a box car.” And the same witness, in the course of his cross-examination, says: “ I am quite certain there was a refrigerator car on that spur; I saw it myself.”

The witness Anderson, who assisted in carrying the body of Miller into a house, says : “ Right after we carried in Miller and House I carne back here and noticed whether there was a car standing upon this spur. I saw a car standing upon this spur or branch. By the Court.— That car stood with the eastern end of it about even off with the platform of the refrigerator building. The end of the car which was next to the street was even with the platform of the house. A. I claim to have seen this car about fifteen minutes after the accident; ” and when he was pressed upon the subject of what called his attention to the car, he said: “ It obstructed the view of the railroad off to the west,” and that he was looking to see; and he adds : “ I am willing to swear positively that there was a car that night at that time.” Hpon this conflict it was for the jury to determine whether the car stood in front of the cold storage building and furnished an obstruction to the observation of a train approaching from the west. And upon the question we are now considering it must be assumed that the jury found, upon the conflict, favorable to the plaintiff. Green, a surveyor, was called, who had made measurements in Lock street as to how far one could see west on track No. 1 standing in Lock street, and he says, viz.: “ Standing at a point 12 feet north from the north rail of track No. 4, in the center of Lock street, I could see an object in the center between the rails on track No. 1 at a point 30 feet westerly of the center of Lock street, measured between the rails of track No. 1. I could not see farther by reason of a car on the branch, which stood out, I should think, between 2 and 3 feet east of the line of the cold storage building. I did not make any measurements of it. Changing my position to a point 10 feet north of the railroad track No. 4, going 2 feet near to No. 4, I could see an object 108 feet between the rails of track No. 1, from the center of Lock street. The point of 10 feet came just inside of that stub. Ten feet from the north rail of track No. 4 brought me just south of the north rail of the stub,, and the point of 12 feet brought me just north of the north rail of the stub.” And in the course of his cross-examination lie says that he passed down on to-the stub track two feet, which just stepped him over the north rail,, and that he then took another observation by the corner of that car, and then he could see 108 feet from the center of Lock street on track No. 1; “if I had stepped one foot farther south on Lock street looking then by the corner of that car, I would have seen, I should think, 250 feet, perhaps more, * * * and if I had stepped one foot further than that, that is, two feet, then I could see 1,000 feet up on track No. 1 or more possibly. And then that would have brought me about on the south rail of the stub-track very nearly. From the south rail of the stub track it is ¡possible that I could see 1,000 feet or more to the west. I can’t say for certain.” This witness also testified that assuming that this car had stood so that its east end was on the line of Lock street, I would have séen a great deal farther west than I did with it standing where it did, over on the street.” This same witness testified as to the length of a horse and cutter measured from the nose of the horse to the rear of the cutter, and he stated it to be thirteen feet and eight inches, and that if a person sat in the cutter his eyes would be six or eight inches nearer the horse than the back end of the cutter, and that would vary somewhat, depending upon whether the person held his head forward or back ; that variation might make it a foot. Inasmuch as there was a conflict in the evidence in respect to some of the important circumstances relating to the conduct of the deceased on the occasion of the injury, and inasmuch as a solution of that conflict was within the province of the jury, so too, we think, it was for the jury to determine what inference should be drawn from the facts which they found established under the circumstances disclosed by the evidence relating to-the question of the intestate’s freedom from contributory negligence. (Chisholm v. State, 141 N. Y. 246; Gilbert v. L. I. R. R. Co., 80 Hun, 366.) House, in detailing tlie circumstances, states that they stopped and waited until the freight train had gone by, and that they were then near the north freight track and about even with the cold storage building; he adds: “We were opposite the northeast corner in traveled part of the street — in the middle of the street. As I say, we stopped. Miller was still driving. We drove up to the crossing. The train was going east. lie waited until the train had got by, and looked that way (indicating). Q. Looked which way? A. East. We looked east. I looked east — turned and looked east, and the .train had got down by so that they were about in a line with the dike works. I turned around like that (indicating), and Miller sat in the cutter, and when I looked around like that (indicating) he spoke to the horse and she started on a shack. I kind of turned my head east, and he drove on the track, and when I turned around to look west the cars were right on us. When I turned around and looked west he was in the act of' — dike this (indicating), that is all I remember. Q. Of pulling back on the reins ? A. Yes, sir. * * * I looked east when we got out outlie track, and I turned around to look west, and he was like that (illustrating), reining in the horse.” The witness continues that Miller was sitting back drawing in the reins as the train approached. The learned judge called the jury’s attention to the rule in respect to the conduct of a party when an emergency is suddenly upon him, and in connection with that rule submitted the whole question of fact as to' whether the deceased was free from contributory negligence to the jury in cautious language, leaving the jury to deal with the facts and circumstances and inferences to be deduced from the whole body of the evidence. Under the rules that have been laid down in numerous cases, we are of the opinion that no error was committed in that regard, (Beckwith v. N. Y. C. & H. R. R. R. Co., supra ; Towns v. R., W. & O. R. R. Co., 28 N. Y. St. Repr. 124, and cases cited in the opinion ; Pitts v. N. Y., L. E. & W. R. R. Co., 29 N. Y. Supp. 871.)

This ease differs from Stopp v. Fitchburg R. Co. (29 N. Y. Supp. 1008) as in that case it appeared that a party approaching the crossing-fifty feet from the track could have seen a locomotive 1,000 feet if she had looked, and upon all the facts and circumstances disclosed in that case the judge who delivered the opinion was constrained to say: “ That she did not look, excepting straight in front of her, but went heedlessly on. ■ If she had looked, she would have seen the locomotive, and have had ample time to stop and be safe. If she did not ■do so, it was negligence; if she did not look, it was negligence.” In the case in hand there is no absolutely definite evidence as to the speed of the train, nor is there absolutely definite evidence as to the rate of speed of the deceased’s horse when it was started up after having waited for the passing of the freight train; and, considering the other uncertain events and circumstances surrounding the deceased on the occasion of the injury, we are of the opinion that the rule laid down and stated in Pitts v. N. Y., L. E. & W. R. R. Co. (supra), and the authorities there referred to, warranted the trial judge in refusing to grant a nonsuit on either of the grounds mentioned by the learned counsel for the appellant and in submitting the questions of fact involved in the case to the jury.

(3) Upon a careful review of the evidence brought to the attention ■of the court by the motion for a new trial on the minutes on the alleged ground that the verdict is against the weight of evidence, .and applying the rule laid down in Kaare v. T. S. & I. Co. (139 N, Y. 369), we think a new trial should not be granted on the ground that the verdict is against the weight of evidence. (See Beckwith v. Central Road, supra ; Pitts v. N. Y., L. E. & W. R. R. Co., supra.)

(4) "When the trial judge was asked to instruct the jury ££ that the fact that the deceased passed upon a shack or trot upon the tracks is •some evidence of want of care and prudence ” the court responded thereto, viz.: £‘ I leave that for tlio jury. I don’t think that is for the court.” As already indicated, there was some evidence relating to the movements of the horse beside that given by the witness House, and it was for the jury to determine what was the essential fact, at what particular speed the horse was moving, and what particular points the witnesses referred to, and we think it was not error in the court to submit the whole question of £l care and prudence,” under the circumstances disclosed, to the jury, and that the exception taken to that request is unavailing.

The verdict rendered by the jury was for $1,375. No criticism is made by the defendant as to the amount thereof.

The judgment and order should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: Hardin, P. J.:

text:
    The Cortland Wagon Company, Appellant, v. Margaret Lynch, Respondent.

      Action on a promissory note made by an agent — token tke principal is not bound — ■ ke is only bound by a note of kis agent setting forth tke principal’s name.

    The complaint in au action was based upon a negotiable promissory note, alleged to have been made by the duly authorized agent o£ the defendant, but which was not signed by tlie defendant, nor did anything appear in the body of the note or in the signature attached thereto indicating that it was the promissory note of the defendant. The- plaintiff sought to recover solely upon the commercial character of the instrument sot up in the complaint, which was executed by a person who added after his name the affix “Ag’t.”

      Held, that although the person so signing the note was personally liable thereon, the plaintiff had nevertheless failed to establish a cause of action against the defendant.
    The appellation by which the contractor may be distinguished in a contract is of no importance, provided it be sanctioned by him and be embraced in the power conferred on the agent, who, if he undertakes to obligate another, by note, bill of exchange or other commercial instrument, should manifest his purpose clearly and intelligibly, or his principal will not be bound.
    A principal will not be bound by the contract of an agent, unless his name is set forth in the contract, or annexed to the signature of the agent, showing that it was the intention of the agent to contract for and on behalf of the principal; if the contract does not show this fact, the principal will not be bound, although the agent may be personally liable on the contract.
    Appeal by tlie plaintiff, Tlie Cortland Wagon Company, from a judgment of tlie Supreme Court in favor of tlie defendant, entered in the office of tlie clerk of tlie county of Cortland on the 11th day of July, 1894, upon the decision of the court rendered after a trial at the Cortland Special Term dismissing the plaintiff’s complaint.
    In the complaint it is alleged that oil April 7,1893, Thomas Lynch “ was the duly authorized agent of the above-named defendant for the transaction of business, and had authority to act for and bind the above-named defendant. * * * On or about April 7th, 1893, at Brockport, N. Y., the above-named defendant, for value received, by her said agent, Thomas Lynch, made her promissory note in writing, dated that day, whereby, for value received, the above-named defendant promised to pay to the order of Fred R. Hixson the sum of $50.00 on November 1st, 1893, at the First National Bank, Brockport, N. Y., with interest thereon from the date thereof.” „ It is also alleged that the payee, Fred Hixson, before the note became due, for value received, indorsed the same and duly transferred it to the plaintiff, who became the holder thereof; and that the note, when due, was presented for payment and payment refused, and the same was protested. No other essential allegations are found in the complaint. The answer of the defendant, among other things, denies that “she made her promissory note on or about April 7, 1893, at Brockport, N. Y., in writing, dated that day, whereby, for value received, she promised to pay to the order of Fred R. Hixson the the sum of $50 on November 1st, 1893, at the First National Bank of Brockport, N. Y.”
    The trial court found as conclusions of fact:
    “ 1. That on or about April 7, 1893, at Brockport, N. Y., Thomas Lynch made and executed a promissory note, in writing, of which the following is a copy :
    £££ $50.00. Brockport, N. Y., April 1th, 1893.
    “c November first, I promise to pay to the order of Fred R. Hixson, Fifty .Dollars, at the First National.Bank, Brockport, N. Y.
    “£ Yalue received, with use.
    £££ THOMAS LYNCH, Ag'A

    “ 2. That said note was duly transferred to the payee, Fred R. Hixson, who, before the note became due, for value received, indorsed the same, and said note thus indorsed was thereafter transferred to the plaintiff.
    “ 3. That after said note became due it was duly presented for payment at the First National Bank, Brockport, N. Y., and payment thereof duly demanded, which was refused, and thereupon said note was protested for non-payment.
    “ 4. That the said Thomas Lynch was'the husband of the defendant, and was at that time carrying on a retail hardware business at Brock-port, N. Y., in defendant’s name.
    “ 5. That the consideration for said note was a road cart bought of Fred R. Hixson.”
    As conclusions of law the trial court found, viz.:
    “ Defendant is in nowise bound or made liable by the" signature 1 Thomas Lynch, Ag’t.’
    “ 2. A principal cannot be made liable on a written instrument made by Lis agent unless it is shown in the body of the instrument or in the signature that the contract was made for and on behalf of the principal whose name was disclosed therein.
    “ 3. The affix ‘ ag’t ’ is merely descriptive of the person, and not of the character of the liability.”
    The court thereupon ordered judgment for the defendant.

      Kellogg & Van Iloesen, for the appellant.

      Delbert A. Adams, for the respondent.
   Hardin, P. J.:

Plaintiff’s complaint is based upon a negotiable promissory note which is set out in the findings of fact made by the trial judge. The note was not signed by the defendant. Nothing appears in the body of the note or in the signature attached thereto indicating that it was the promissory note of the defendant. The complaint contains no allegations to support a recovery for the consideration entering into tlife note, and the plaintiff has rested its right of recovery solely upon the commercial character of the instrument declared upon and found to have been executed by Thomas Lynch, who added after his name the affix “ ag’t.” Doubtless Thomas Lynch was personally liable upon the note. However, as nothing appears in the body of the note or in the signature placed thereto indicative of any liability on the part of the defendant, the plaintiff failed to establish a cause of action against her (Taft v. Brewster, 9 Johns. 334; Guyon v. Lewis, 7 Wend. 26 ; Moss v. Livingston, 4 N. Y. 208; Bowne v. Douglass, 38 Barb. 315), in which case Ingraham, P. J., points out the distinction between the maker of a note and the indorser of a note who adds words indicative of a special character after his name.

In Pentz v. Stanton (10 Wend. 271) it was held that in order to bind a principal “ the agent in such case must either sign the name of the principal to the bill, or it must appear on the face of the bill itself, in some way or another, that it was in fact done for him, or the principal will not be bound; the particular form of the execution is not material if it be substantially done in the name of the principal.”

In De Witt v. Walton (9 N. Y. 571) Gardiner, Ch. J., said: il The plaintiff has declared upon a promissory note as his -only cause of action. He must sustain bis complaint by proof that the defendant was a party to the express contract upon which he has counted. He has given evidence tending to prove that Hoyt had authority to bind the defendant personally and legally under the designation of £ The Churchman.’ But the contract produced is one according to which Hoyt assumes to pay, and signs his own name, with a statement appended that he is £ agent ’ for the £ Churchman.’ This is not enough. The good sense of the many authorities upon this subject would seem to be that, where a party is sought to be charged upon an express contract, it must, at least, appear upon the face of the instrument that the agent undertook to bind him as principal. . The appellation by which the contractor may be distinguished is of no importance, provided it be sanctioned by the principal and embraced in the power conferred upon the agent. * * * There is no great hardship in requiring that if one man undertakes to oblige another, by note, bill of exchange, or other commercial instrument, he should manifest his purpose clearly and intelligibly, or that his principal will not be bound, whatever may be the result in reference to himself.” That authority has been cited in numerous cases decided by the Supreme Court and the Court of Appeals, and apparently remains unshaken. It was referred to with approval in .a case decided by this court in 1876, entitled Merchants’ Bank v. Hayes (7 Hun, 530), and after explaining the apparent deviation from that case by the court in deciding Green v. Skeel (5 N. Y. Sup. Ct. [T. & C.] 25), the learned judge adds : “We must, therefore, hold the law to be, that a principal is not bound by the contract of an agent, unless the name of the principal is set forth in the contract, or annexed to the signature of the agent, showing that it wras the intention of the agent to contract for and in behalf, of his principal. If the contract does not show this important fact the principal is not bound, but the agent may be personally responsible on the contract.” (See page 535.)

The language of Gray, J., in C. N. Bank v. Clark (139 N. Y. 310), seems to be applicable to the case in hand. He says : “ Where a negotiable promissory note has been given for the payment of a debt contracted by a corporation, and the language of the promise does not disclose the corporate obligation, and the signatures to the paper are in the names of individuals, a holder, taking lyona fide and without notice of the circumstances of .its making, is entitled to hold the note as the personal undertaking of its?.'signers, notwithstanding they affix to their names the title of an office. Such an affix will be regarded as descriptive of the persons and not of the character of the liability. Unless the promise purports to be by the corporation, it is that of the persons who subscribe to it, and the fact of adding to their names an abbreviation of some official title has no legal signification as qualifying'their obligation, and imposes no obligation upon the corporation whose officers they may be. This-must be regarded as a long and well-settled rule.” He then cites, numerous authorities, among them De Witt v. Walton (supra). He-then adds: It is founded in the general principle that in a contract every material thing must be definitely expressed, and not left: to conjecture. Hnless the language creates or fairly implies the undertaking of the corporation, if the purpose is equivocal, the obligation is that of its apparent makers.”

In the 'course of the opinion delivered in, Briggs v. Partridge (64 N. Y. 363), in respect to circumstances under which parol evidence may be received where a parol executory contract has been made by an agent in his own name, Andrews, J., said: There is a well-recognized exception to the rule in the case of notes and bills of exchange, resting upon the law merchant. Persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them; and a person not a party cannot be charged upon proof that the ostensible party signecL or indorsed as his agent.” Among other cases cited by the learned, judge to sustain that proposition is De Witt v. Walton (supra).

The doctrine of De Witt v. Walton (supra) is referred to by Landon, J., in Leavens v. Thompson (48 Hun, 391), and after recognizing the rule laid down by that case and others, he says : These are cases of negotiable commercial paper, in which, from the form of the obligation, it was held that nobody appeared to be bound but the person who signed or accepted it, and the rule was applied that a person not appearing to be a party to negotiable paper cannot be charged upon it.” Lerned v. Johns (9 Allen, 419) asserts the same doctrine. (See, also 1 Daniel Com. Inst. [ed. of 1892] 278, §§ 300, 301, 303, 305; 1 Rand. Com. Paper, § 380; Pumpelly v. Phelps, 40 N. Y. 60.)

Appellant calls our attention to Brown v. The Butchers & Drovers’ Bank (6 Hill, 443), which, was a case where the indorsement was made with a lead pencil, and the party had used in place of his signature the figures 1. 2. 8, and evidence was given strongly fending to show that the figures were in Brown’s handwriting, and that he meant they should bind him as indorserand the court charged that if Brown used the figures,’ “ intending thereby to bind himself as indorser, he was liablewhich charge was approved, and we see nothing in the case which sustains the position of the appellant.

Appellant calls our attention to Commercial Bank of Buffalo v. Warren (15 N. Y. 511), which was á case where one partner, without authority, and for his own exclusive benefit, indorsed a promissory note made by himself in- the firm name, and the indorsee took the note with the full knowledge of the facts, and it .was held that the co-partner whose name was used became liable by his ratification of the indorsement and his subsequent promise to - pay the note. We find nothing in the case which supports the contention of the appellant that the note in suit is to be treated as the note of the defendant.

If the foregoing views are correct, the exceptions to the conclusions of law stated in the decision made by the Circuit Court present no error, and the conclusion reached at the Circuit must be approved.

Martin and Merwin, JJ., concurred

Judgment affirmed, with costs.


author: Hardin, P. J. :

text:
    Mary G. Atherton, Respondent, v. Peter Lee Atherton, Appellant.

      Domicile of a wife separate from her husband’s — what is'cruel and inhuman treatment — first offense rewired by subsequent offenses, after condonation foreign judgment of divorce — when not effective within the State of New Yorlc-f\ contracts between a husband and wife, after their separation — a measure, after a judgment of separation, for maintenance of the wife — not for a child — remarries of the trial judge at the trial — limit of power to award counsel fees.

    A married woman may have a domicile in a jurisdiction other than that of her husband, when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce. She may acquire a separate domicile whenever it is necessary for her to do so, but the right to do so springs from the necessity of its exercise.
    •Cruel and inhuman treatment does not necessarily imply such treatment as places a wife in physical fear of her husband. The conduct of the husband may produce such mental agony in the wife as to be even more cruel and inhuman than if mere physical pain had been inflicted, and where the conduct of the husband towards the wife is of such character, it justifies a court in freeing her from the necessity of submission to such treatment.
    ■Cruelty of a husband to his wife which has been condoned will be revived by subsequent acts of cruelty, which of themselves would not be sufficient to justify a separation; the condonation of the prior offense is always subject to the condition that the husband shall thereafter treat the wife with conjugal kindness.
    A wife left her husband, who resided in the State of Kentucky, and went to and resided within the State of New York, where she resided prior to her marriage. An action was subsequently commenced by the husband in the State of Kentucky to procure a divorce, under the statutory law of that State, on the ground of abandonment, in which the wife was not personally served with process within the State of Kentucky, nor did she appear in the suit, nor in any way consent thereto, nor do any act which gave the judgment binding force upon her in the State of New York.

      Meld, that the judgment was wholly inoperative within the State of New York, was not binding upon the wife, nor did it constitute a bar to her right to maintain an action for a separation against her husband in the State of New York in case he personally appeared in an action brought therefor in that State.
    After a husband and wife have separated a contract may be made between them, through the intervention of a trustee, which is effective to bind the husband to contribute the sum therein provided, for the future support of the wife; and such agreement, so long as it remains unrevoked, is the proper measure of compensation which the husband should render for the maintenance of his wife after the dissolution of the marriage tie, but such agreement is not in any WEty binding upon the child of the parties thereto, although provision for its maintenance is made therein.
    The court in a final judgment, in favor of the wife in an action brought by her against her husband for a separation, may give such directions as the nature and circumstances of the case require; in particular, it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff as justice requires, having regard to the circumstances of the respective parties.
    During the progress of the trial of an action brought by a wife to obtain a judgment of separation from her husband, the trial judge, after having heard considerable evidence offered by each of the parties to the suit, in the presence of both parties and of their counsel, addressed himself to them in language of expostulation and admonition. In the course of his remarks he said: “ I am satisfied that neither of these parties are bad people. They intend to be good people, Christian people, and considering the infant, dear to both, they ought to contrive to get together and be man and wife, and especially father and mother. * * * It seems to the court that whatever humiliation it may bring for the time being, or whatever sinking of self may be required, it is their duty to join hands over the cradle of the little baby.”

      Meld, that no legal error was committed, and no sufficient ground was made manifest by reason thereof for interfering with the final results reached by the trial court upon the questions of fact.
    The power of the courti in an action brought by a wife to procure a separation from her husband, to make an allowance-to the wife for counsel fees and expenses, is limited to such sums as may be necessary to enable her to carry on or defend the action; and if an application be made for counsel fees and other expenses after the trial of the action and its determination in favor of the plaintiff, without showing in the moving papers that the money is needed in order to enable her to further defend the action, or to maintain or prosecute her rights under the judgment, an allowance thereof is unauthorized.
    Appeal by tbe defendant, Peter Lee Atherton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 8th day of January, 1894, upon the decision of the court rendered after a trial at the Oneida Special Term, adjudging a separation between the plaintiff and defendant; awarding alimony to the plaintiff; providing an allowance for the support of their child, and awarding taxable costs and an allowance of $1,000 in favor of the plaintiff against the defendant.

      Alex. P. Humphrey, Seth O. Adams and A. M. Beardsley, for the appellant.

      W. <& N. H. Hernán and A. PI. Mills, for the respondent.
   Hardin, P. J. :

October 17,1888, at Clinton, the parties to the action intermarried, and after spending a portion of their wedding trip at TJtica and Old Point Comfort, they repaired to the city of Louisville, Ky., to make their residence with the parents of the defendant in that city, and they continued to live and cohabit together until the 3d day of October, 1891, when, after a distressful scene, in which violent language and excited and severe words were used between the parties, and the defendant had made a threat to take the infant child, which was born to them on the 8th of January, 1890, away from the plaintiff, and to remove it from her care and supervision, and after .she had remonstrated and sought to induce him by persuasion and by putting her arms around his neck and begging -him to change his avowed purpose, and after he had resolutely, angrily and forcibly thrust her away from him, in the presence of his mother, she repaired to her room and taking the child went out of the residence •of the defendant to Mrs. Belknap’s, a neighbor, and remained there for two or three days, and subsequently went therefrom to the Galt House hotel and remained for a period of about a week, when her friends and counsel came to her; and during the period she was there at the Galt House an agreement was entered into, reciting that an actual separation had taken place; also, reciting therein, viz. : “ The undersigned, Peter Lee Atherton, and his wife, Mary G. Atherton, having ceased to live together as man and wife, without in any way acknowledging upon whom is the fault, or condoning the conduct of the one or the other which has led to the existing state of affairs, or preventing any consequence which may follow, or right which may arise to either party if such status shall continue, ■desire to provide for the best interest of their child, Mary Yaleria Atherton.” Upon the consummation of the agreement, the plaintiff with the child left the city of Louisville with the intent and purpose of ceasing to be a resident of the State of Kentucky, and returned to the home of her mother in the village of Clinton, N. Y., and acquired a residence in Clinton where she has continued to reside down to the time of the trial of this action.

Article 3 of the Code of Civil Procedure contains several sections providing for “action for a separation.” In section 1763 it is provided that such an action may be maintained. * * * “ 2. Where the parties were married within the State and the plaintiff is a resident thereof when the action is commenced.” In section 1768 of the Code it is provided, viz.: “ If a married woman dwells within the State when she commences an action against her husband, as-prescribed in either of the last two articles, she is deemed a resident thereof, although her husband resides elsewhere.” The provisions of the statute to which reference has just been made seem to recognize the exception stated in Hunt v. Hunt (72 N. Y. 242), to the effect that a married woman may have a domicile in another jurisdiction than that of the husband when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce. She may acquire a separate domicile whenever it is necessary for her to do so. But the right to do so springs from the necessity for its exercise.” Hpon the evidence disclosed in the appeal book, as-well as upon the law, it must be assumed that the plaintiff was domiciled in the village of Clinton at the time of the commencement of this action, January, 1893, and had been so domiciled since her separation from her husband, which occurred in October, 1891. It. was undoubtedly understood by the parties at the time of the execution of the agreement as to the separation that she should remove from the State of Kentucky to the State of New York and join her mother at the home in Clinton. And the evidence seems to indicate-that the defendant not only had knowledge thereof, but acquiesced in such removal from the State of Kentucky to the State of New York by the wife. Extensive findings of fact have been made by the-trial judge, and he reaches the conclusion that a case is made out within the provisions of section 1762 of the Code, and that the plaintiff is entitled to maintain the action because of the acts and circumstances disclosed in the evidence by reason of the cruel and inhuman treatment of the plaintiff by the defendant,” and such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter.” When making the findings of fact the trial judge was called upon to review, consider and determine the force and effect of evidence relating to the acts, doings and conduct of the respective parties to and with reference to each other from the period of their marriage on the 17th of October, 1888, to the period of their separation, October 3, Í 891 (as well as some acts and circumstances thereafter), and to reach his conclusion after weighing the evidence in which there were very sharp and severe contradictions by the principal parties examined therein. Witnesses were called in behalf of the plaintiff tending to support much of her testimony, and witnesses were called in behalf of the defendant tending to support his version and narration of several of the important transactions that are disclosed in the evidence given by her, and tending to sustain the versions, acts and doings of the defendant as related by him. Although a vei’y extensive argument has been addressed to this court upon the subject of the credibility of the plaintiff as a witness in her narration, of the scenes and events and misfortunes which attended her in her' married life, and we are pressed to say that her statements thereof are “ most uncandid,” and that strong sidelight ” is thrown against her by letters written, and her testimony somewhat shaken by witnesses who speak in behalf of the defendant as to some of the important transactions that she relates, and in some of her statements we can see that she has been mistaken, and in others she has, to some extent colored and magnified them; still, considering the evidence which tends to corroborate her, and, to some extent tending to establish important facts involved in the numerous inquiries that were opened at the trial, we are inclined to accept the conclusions of fact upon the essential features of the case as found by the trial court.

In Lutz v. Lutz (31 N. Y. St. Repr. 718), which was an action for cruel and inhuman treatment, Yan Brunt, B. J., said: “ The judgment of the referee in respect to the credibility of witnesses who have been examined personally before him should not be lightly disturbed, in view of the fact that he has the advantage of the personal attendance of the witnesses,' and has been enabled to judge by their demeanor and manner of testifying, much in respect to their credibility. * * * Cruel and inhuman treatment does not necessarily imply such treatment as places a wife in physical fear of the husband. The conduct of the husband may produce such mental agony in the wife as to be even more cruel and inhuman than if mere physical pain had been inflicted \ and where the conduct of the husband towards the wife is of this character it is certainly cruel and inhuman, and justifies the court in freeing her from the necessity of submission to such treatment.” Numerous cases are found in this State which construe the words “ cruel and inhuman treatment,” and which declare that “ great cruelty and as much inhumanity may be manifested,” and that .acts and words may be construed as cruel and inhuman, although they cause no physical pain. (Bihin v. Bihin, 17 Abb. Pr. 26; Whispell v. Whispell, 4 Barb. 217; De Meli v. De Meli, 67 How. 32; S. C. affd., 120 N. Y. 485; Fowler v. Fowler, 33 N. Y. St. Repr. 746 ; Waltermire v. Waltermire, 110 N. Y. 183.)

Upon the case as presented at the Special Tei’in it rested upon a review of all liis conduct towards her and not upon any single act (Davies v. Davies, 55 Barb. 130; 1 Bishop Mar., Div. & Sep. §§ 1561, 1652.)

While some of the early acts relied upon were apparently condoned, yet they were revived by subsequent acts of the defendant.

In Burr v. Burr (10 Paige, 20) it was held that condoned cruelty will be revived by subsequent acts of cruelty which of themselves would not be sufficient to justify a separation. And in Whispell v. Whispell (supra) it was said: “ Even where there is a condonation it is always subject to the condition that the husband shall afterwards treat his wife with conjugal kindness.”

After a careful consideration of the conflicting evidence, and all the facts and circumstances disclosed by the record, we are of the opinion that the.learned judge was correct in his conclusion upon flie whole case, when he said, “that the acts and conduct and treatment of the defendant of and towards tiie plaintiff during their married life were cruel and inhuman, and rendered it unsafe and improper for her to cohabit with him, and justified her in leaving flie defendant as she did, and seeking a residence separate and apart from him; ” and the authorities to which we have referred sustain liis conclusion of law reached upon the findings of fact in respect to the jiropriety of a separation.

(2) It is insisted by the learned counsel for the appellant that the Kentucky judgment was a bar to this action. Defendant was a native citizen of Kentucky, and has resided there all his life, and on flie 17th of October, 1888, he was married to the plaintiff, a native of this State. At the time of the marriage the parties intended to make their home in and to reside in the city of Louisville, Kentucky. In pursuance of that intention they continued to reside there until October, 1891, when the plaintiff “ left the family abode.” Under the statutes of Kentucky in force at that time, either husband or wife could procure a divorce from the other, if, without the fault of e •complaining party, the other party should abandon the complaining party, and such abandonment should continue for one year, and it was provided in the statute law of that State that an action for divorce might be commenced against a person whose absence from the State was continuous for four months, by means of constructive process.” Such an action was commenced and such proceedings were had in virtue of the law of the State of Kentucky, which resulted in a judgment pronounced by the Circuit Court of Jefferson county, Kentucky, awarding the defendant a divorce from the plaintiff on the ground of her alleged abandonment. A warning ■order was issued in that action, and there was an appointment of a ■“ representative attorney.” Doubtless, according to the proceedings had in that action in the territorial jurisdiction of Kentucky, the •judgment would be efficient. (Rhyms v. Rhyms, 7 Bush. 316; Hawkins v. Ragsdale, 80 Ky. 353.) However, as no process was personally served on her in the State of Kentucky, and she made no appearance in that suit, and in no way has consented thereto, and did no act which gave the judgment binding force upon her in this State, we think, according to the well-settled rule laid down in numerous cases in this State, that the judgment is wholly inoperative in this State, and was not binding upon the plaintiff at the time of the commencement of this action, and that it forms no bar to her right to maintain this action against the defendant, who has personally appeared in the action. (Borden v. Fitch, 15 Johns. 122; Beckwith v. Beckwith, 24 Wkly. Dig. 5; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; People v. Baker, 76 id. 78 ; O'Dea v. O'Dea, 101 id. 23; Jones v. Jones, 108 id. 415; Gross v. Gross, 22 Wkly. Dig. 309; S. C. affd., 108 N. Y. 628; de Meli v. de Meli, 120 id. 485; Rigney v. Rigney, 127 id. 408; Williams v. Williams, 130 id. 193; Davis v. Davis, 51 N. Y. St. Repr. 509; S. C., 22 N. Y. Supp. 191; 2 Bish. Mar., Div. & Sep. [ed. 1891] § 155.) Most of the authorities are quite satisfactorily reviewed in the opinion delivered at Special Term.

Inasmuch as the plaintiff was dwelling within this State at the time of tlie commencement of this action, according to section 1768-of the Code, as already stated, “ She is deemed a resident thereof,, although her husband resides elsewhere.”

Although the husband, in his action pending in the State of Kentucky, was not allowed to obtain a divorce for the abandonment of him by his wife without proof that such abandonment was without-fault upon his side, and although it may be true that that judgment adjudged that his abandonment was without his fault, such adjudication is not binding or conclusive upon the defendant here inasmuch as the court had no jurisdiction of her at the time it rendered such judgment; and we cannot assent to the ingenious argument made by the learned counsel for the appellant, based upon a supposed force of that judgment, as the assumption of the argument is that both were domiciled, during their whole married life,” in the State of Kentucky, which assumption, wre think, is not well founded. (Rigney v. Rigney, supra; Williams v. Williams, supra; Davis v. Davis, supra.)

(3) It is now well settled that, after parties have separated, “ a contract may be made through the intervention of a trustee, which is effective to bind the husband to contribute the sum therein provided for the future support of the wife.” (Galusha v. Galusha, 116 N. Y. 612.) In that case, as well as in the case in hand, the contract was made after actual separation through the intervention of a trustee, and the defendant made several advances and payments according to the tenor of the contract thus entered into. The court, in Galusha v. Galusha, in speaking of the contract, said: “ After its making it was not in the power of either party, acting alone and against the will of the other, to do an act which would destroy or affect that contract. * * * The law looks favorably upon and encourages settlements made outside of courts between parties to a controversy. If, as in this case, the parties have legal capacity to contract, the subject of settlement is lawful, and the contract, without fraud or duress, is properly and voluntarily executed, the court will not interfere.” And in Galusha v. Galusha (138 N. Y. 283), after approving of the case from which we have already quoted, the court observed: “ As the parties had, by an agreement lawful in form and apparently valid, stipulated as to the amount which the husband should pay for the support of the wife, that agreement, it was held, so long as it remained unrevoked, was the proper measure of compensation which the defendant should render for her maintenance-after the dissolution of the marriage tie. * * * The effect of the former decision is to render the separation agreement conclusive upon the plaintiff as to the amount of her allowance out of her husband’s estate, until she becomes the actor in some action or proceeding to terminate it.” In the case in hand there are no allegations in the complaint attacking the validity of the separation agreement and no specific prayer in the plaintiff’s complaint that the agreement be canceled or set aside, nor is the trustee made a party to this action. Under such circumstances, wc think, the separation agreement was binding upon the parties to this action. In the agreement of October tenth, executed by the parties and by Goodenow, the trustee for the plaintiff, is found the following provision: “ If a divorce shall be granted, this agreement, so far as it concerns provision for Mary G. Atherton, shall be carried into the decree, as in full satisfaction of all claims for alimony, and so far as concerns provision for and custody of the child, reserving to the court the usual power to provide against events and contingencies not covered by this-agreement.” The agreement stipulates that the defendant shall pay to the plaintiff “for her support $125.00, at the beginning of each month, until this agreement does, by its own terms, end.” The-provision directed by the decision at the Special Term for the plaintiff is for the same amount, and no satisfactory reason appears for disturbing the judgment in that regard entered upon the decision. The trial court properly exercised its equitable jurisdiction and discretion in the premises in awarding the custody of the child to the plaintiff, and in doing so followed well-recognized precedents. (Matter of Waldron, 13 Johns. 418; People v. Olmstead, 27 Barb. 9 ; Mercein v. The People, 25 Wend. 64, 106.)

The provision awarding an opportunity to the defendant to visit-the child seems to be reasonable. Certain provisions are found in the agreement- as to the amount the defendant, under the circumstances mentioned in the agreement, should pay annually “ for the comfortable maintenance of the child ; ” and, according to the provision of the agreement, it seems that the allowance was to vary to meet changing circumstances that might arise in respect to the care and custody of the child, if the circumstances should not remain as mentioned, in the agreement. Manifestly, the circumstances have changed, and it is quite apparent that the child, as such, was not bound by the terms of the agreement. It has been suggested in some cases that a provision as to the child is void as against public policy. (See Allen v. Affleck, 64 How. 380 ; People v. Mercein, 8 Paige, 67; In re Maurer, 18 Wkly. Dig. 568.) Section 1766 of the Code provides that where an action is brought by the wife for separation “ the court may, in the final judgment of separation, give such directions as the nature and circumstances of the case require. In particular it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice requires, having regard to the circumstances^ of the respective parties.” It may be fairly-assumed that the court exercised proper discretion in awarding the sum mentioned in its decision, to wit, $100 a month, to be paid for the support, education and maintenance of the child ; the child having now become upwards of four years of age, and its wants and needs and expenses are necessarily greater than they were in October, 1891, when the parties separated, and we think the provision in respect to the child should be sustained.

(4) Complaint is made by the learned counsel for the appellant of an incident that transpired during- the progress of the trial in the presence of the parties and of their respective counsel. It seems the learned judge addressed himself to them in language of expostulation and admonition. In the course of his remarks he said : ■“ I am satisfied that neither of these parties are bad people. They intend to be good people, Christian people, and considering the infant, dear to both, they ought to contrive to get together and be man and wife, and especially father and mother. * * * It seems to the court that whatever humiliation it may bring for the time being, or whatever sinking of self may be required, it is their duty to join hands over the cradle of the little baby.” -These remarks were followed by others evidently eminating from a tender solicitude the trial judge entertained towards the child, after hearing considerable evidence offered by either side relating to the controversy arising between the wife and husband. Counsel has called our attention to Livermore v. Bainbridge (44 How. 357; S. C. affd., 14 Abb. [N. S.] 227). In that case the referee, before making his report, called on one of the plaintiffs personally and suggested to him whether it would not be better for 'the plaintiff to settle the matter with the defendant by paying him $35,000, which defendant would probably accept, as there were matters in evidence in the case which led him to believe that if he did give judgment for the defendant, it would necessarily be for a very large amount, and in that case, upon the opinion of Eancher, J., delivered at Special Term, the report of the referee was set aside and the order made by him was affirmed in the General Term. The opinion at the General Term was delivered by Davis, P. J., in the course of which he observed: “ It may be-commendable in referee or court, in presence of both parties^ to recommend and urge a settlement between themselves of their litigation.” ¥e find nothing in the case which aids the contention of the appellant, that the learned trial judge in the case now in hand committed any indiscretion or violated any rule of law. His observations were in the presence of the parties and of their respective counsel. If we were of the opinion that a more experienced trial judge, with less humane impulses, would have omitted the admonition and expostulation and entreaty to the parties, somewhat warmly pronounced, still we should be constrained to hold that no legal error was committed, and hence no sufficient ground is made manifest for interfering with the final results reached by the trial court upon the questions of fact.

(5) It is insisted by the appellant that the trial court erred in its sixth conclusion of' law, which was as follows: “ That the said defendant pay to the said plaintiff or her attorneys; and that the said plaintiff recover of him the sum of $1,000 counsel fee allowed in this action, and that she have execution therefor.” A similar provision is inserted in the judgment. In section 1169 of the Code of Civil Procedure it is provided that in an action like the one before us, The final judgment in such an action may award costs in favor of or against either party. * * * ” The authority of the court is such as is conferred by statute. (Erkenbrach v. Erkenbrach, 96 N. Y. 456; McBride v. McBride, 119 id. 519.)

In Beadleston v. Beadleston (103 N. Y. 403) it was held that the power of the court to make an allowance to the wife for counsel fees and expenses, is limited to such sums as may be necessary to enable her to carry on or defend the action. In that case it also appeared that, after a trial an application was made for counsel fees and other ■expenses “ without showing in her moving papers that it was needed further to defend the action,” and it was held that the allowance was unauthorized.

In McCarthy y. McCarthy a similar motion was made for extra allowance for costs, iiz addition to the plaintiff’s taxable costs and disbursements, and we upheld an order denying the application, azzd our decision was affirmed by the Cozzrt of Appeals, as appears by the record thereof in 137 N. Y. 500. In that case it was intimated that if an appeal was taken upon the merits azzd an application was made for expenses to maizitain or prosecute her rights uzzder the judgment, the court would be authorized to make an allowance, including therein such expezzses. Ye think the decision .azzd judgment should be modified by striking therefrom the allowance of $1,000 counsel fee, azzd that it should remain so far as it awards the plaintiff taxable costs and disbursemezzts.

Martin and Mbrwin, JIT., concurred.

Judgment modified by striking thei’efrom “the sum of $1,000 counsel fee allowed,” and as so modified affirazed, with costs to the respondent against the appellant.


text:
    Esther A. Benedict and Another, Respondents, v. David Sliter, as Administrator, etc., of David Hull, Deceased, Appellant.

      Agreement between the heirs of a lunatic, during his life, as to the disposition of his estate — rescission thereof — -duty of a husband to support and bury his wife ■ — interest not allowable on an unsettled account — costs awaA'ded against an administrator.

    An agreement made between the heirs at law of a lunatic provided that one of the heirs at law and her husband should pay the lunatic’s debts and take care of the lunatic and his wife during their respective lives, and at their death that they should be entitled to certain property of the lunatic — such heir at law and her husband were to pay to one of the other heirs at law the sum of $1,800 and to a third heir at law the sum of $800.

      Held, that it was competent for the parties to rescind the agreement in toto, and in such event the contract should be treated as being void ab initio, in which event a just claim would exist against the estate of the lunatic for the services rendered to him.

      A husband is bound to support liis wife and is bound to bury her corpse.
    During the lifetime of a lunatic his heirs at law and next of kin have no interest in his estate, but as the lunatic, if of sufficient ability, is bound to maintain his family, and as the court is bound to see that his property is fairly devoted to that purpose, the court may, in a proper case, direct the committee of the lunatic to make allowances in favor of those whom the lunatic is bound to provide for.
    Interest is not allowable upon accounts until they are settled.
    Where a referee, during the time that chapter 686 of the Laws of 1893 was in force, awarded costs to a claimant against the administrator of an estate, it must be assumed that he was of the opinion that the claim was unreasonably resisted or neglected and that he based such conclusion upon the facts which appeared upon the trial.
    Appeal by the defendant, David Sliter, as administrator, etc., of David Jlnl], deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Delaware on the étlx day of June, 189é, upon the report of a referee.
    Plaintiffs presented a claim against the defendant, as administrator, •which he rejected by a notice in writing, and which was, by an agreement signed by the parties November 29, 1890, with the approval of the surrogate of Delaware county, referred by an order entered in this court December 1, 1890, and on July 27, 1893, the referee reported “ that there is justly and equitably due to the plaintiffs from the estate represented by the defendant, the sum of two thousand eight hundred twenty-five and 69-100 dollars, for which said plaintiffs are entitled to judgment in this proceeding against the defendant, besides the costs.” Exceptions were filed to the findings made and to refusals made to several requests presented by the defendant to the referee.

      O. Hull and Hdwm H. Wagner, for the appellant.

      George Adee, for the respondents.
   Hardin, P. J.:

David Hull in 1878 resided in the town of Middletown, Delaware county, and owned two farms in that town and one in the town of Roxbury, and lie made and published his last will and testament, which, after his death, which occurred on the 2d of February, 1890, was presented to the surrogate and duly proved, and letters of administration, with the will annexed, were issued to the defendant, who qualified and took upon himself the duties of administration. In 1884 an inquisition de lunático inquirendo was issued out of this court, and David Hull was found to be a lunatic, and in the proceedings had Richard Hull, his son, was appointed committee of estate, and Esther Hull, his wife, was appointed committee of his person. Richard Hull continued to act as committee of his estate until his death, which occurred on the 6th of August, 1886 ; thereafter no committee was appointed of the estate of David Hull. Esther Hull continued to act as committee of his person’ until her death, which occurred November 15, 1881. After -the death of Richard Hull the only children and heirs at law of David Hull were John Hull, a son; Jane Sliter, a daughter, wife of the defendant, and Esther .Benedict, a daughter, one of the plaintiffs. After the death of Richard it was apparent to the children that some fresh arrangement must be entered into looking to the suitable care and protection of David Hull and his property.- His wife was enfeebled, in advancing age and infirmities and was unequal in strength and capacity to suitably care for her husband, who was then a confirmed lunatic, afflicted with senile dementia and weakness of his physical system, which rendered the care of him very burdensome. The children met on the twelfth of August and discussed the situation of affairs, and finally entered into a written agreement called Exhibit A, which is set out in the findings made by the referee. In that instrument, which was executed by the children of the deceased, and in which the wife of the deceased, Esther Hull, joined, it was in substance provided, upon a recital, that the parties “ mutually desiring a settlement of their rights and interests in and to the property of the said David Hull,” stipulated that Esther Hull and Jane Sliter and John Hull should sell unto Ashmun J. Benedict and Esther A. Benedict all their right, title and interest as heirs at law, legatees or otherwise of said David Hull. to and in all the -real property now owned by said David Hull, situate in Middletown, Delaware county, N. Y.; also all their right, title and interest as aforesaid in and to all the personal property of every kind and description now owned by and upon said farm of David Hull, for and in consideration that the said parties of the second part shall keep, maintain and support, in heaitii and sickness, during the lifetime of both or either of the said David Hull and Esther Hull, his wife, and for the further consideration of payment to the said John Hull the sum of $800, and to the said Jane Sliter the sum of $1,800 * * * and the said parties of the second part are to pay all outstanding indebtedness of said David Hull and all debts of Richard Hull, contracted as committee of said David Hull.” It also contained a provision that the plaintiffs agree to purchase the property mentioned and to carry out the agreement and to make payment, and the parties of the first part agreed upon the fulfillment of all the terms and conditions herein mentioned, do hereby agree to make, execute and deliver to said parties of the second part, a good and sufficient deed of their interests in and to said property.” The instrument also contained the following language: “ And the said parties of the second part are to keep, maintain and support the above-mentioned David Hull and Esther Hull upon the farm where they now reside, and the expense, care and maintenance of said persons is to be and the same is hereby made a lien upon said real and personal property.” At the time of the execution of that instrument the plaintiffs resided some thirty miles from Middletown and they removed to the homestead of said David Hull in Middletown, taking possession of the personal property thereon belonging to him, and continued in possession of the same until the death of David Hull, and remained in possession down to the time of the trial. It is found as’ a fact “ that they had previously been requested to come and take care of David Hull, liopelessty insane at that time, and continued so until his death, and of his wife, who was aged and infirm, by his said wife, Esther Hull, who at the time of' making such request was acting as committee of the person of' David Hull, and had been drdy appointed and have duly qualified as such committee; ” and it is found as a fact that the plaintiffs ‘‘ cared for, supported, clothed and boarded said David Hull and Esther Hull from the time they took possession of said farms and personal property mi til the time of their death, and treated them kindly and considerately. That the mental condition of David Hull was fully known to plaintiffs before they assumed his care,, but that they found it more difficult to take care of him than they anticipated.” It is found as a fact that at the time the agreement 'was executed Esther Hull, the mother, stated in the presence ■of John Hull and Jane Sliter that , the debts of David Hull and those contracted for his benefit by Richard Hull as committee of his- estate “did not exceed - the sum of $500;” and it is further found that the plaintiffs at thkt time had no personal knowledge of ■that amount, and that the statements so made were relied upon by ■them to be true and o]3erated to induce “ plaintiffs to enter into said agreement. That in fact said debts largely exceeded the sum of .$500.” The referee also made the following finding of fact: “ That -after the death of David Hull and Esther Hull, and about February 13, 1890, the plaintiff, John Hull, Jane Sliter and David Sliter, her husband, met at said Sliter’s house and had a conversation in regard to the contract mentioned in tenth finding of fact. In that conversation plaintiffs informed John Hull, Jane Sliter and David ■Sliter that they were not satisfied with the contract; that the debts ■of David Hull and Richard Hull, his committee, were much greater •than had been represented to them; that instead of not exceeding $500, they were in fact-$1,000 or $1,200; that they had been defrauded- and should not carry out the contract; that after such statement by the plaintiffs the said John Hull and Jane Sliter consented that said agreement; be canceled on account of such fraud, •and that it be treated as of no force and effect and not fulfilled; that afterwards and at the same meeting it was agreed between the plaintiffs and John Hull and the Sliters that they would ■abide by the terms of the will of David Hull made December 3, 1818, and Richard Hull and sole executor named in said will, being dead, it was agreed by and between all the parties present that David Sliter, the defendant herein, should act as administrator with the will annexed of said will.” He also found “ that in pursuance of such agreement a petition was duly made to the surrogate of the county of Delaware by John Hull, Jane Sliter and Esther A. Benedict, being all the heirs at law of David Hull, then deceased, for the probate of said will,” and that on the 6th day of March, 1890, the will was duly proved, and David Sliter was •appointed administrator with the will annexed ; that he caused an inventory to be taken of the personal property of the testator “ on the farms occupied by the plaintiffs herein, it being the same personal property that was on said farms when the plaintiffs went there, in the year 1886 ; that the value of said personal property was, according to said inventory, §545.35, and that said personal property was sold by said administrator as such, and the avails held or used by him as assets of the estate of David Hull, deceased.” The referee also found that from the 13th of August, 1886, until the 2d of February, 1890, “ the plaintiffs boarded, clothed, supported and cared for the said David Hull, who was during all that time insane and incompetent to care or help himself, and was a large portion of the ■time very violent; that he was cared for and kept in the plaintiff’s family, and that what they did for him was necessary and proper for his comfort and safety, and was reasonably worth the sum of two thousand seven hundred dollars.” The referee also found that, from August 12, 1886, until November. 15, 1881, the time when the mother, Esther Hull, died, “ the plaintiffs boarded, •clothed, supported and cared for Esther Hull, the wife of said David Hull, in their family; that such support and care were necessary, reasonable and proper; that she was sick and confined to her bed a portion of the time, and that the plaintiffs’ services were reasonably worth the sum of three hundred and twenty-five dollars.” (Goodale v. Lawrence, 88 N. Y. 513.) The findings of fact already •stated were. supported by evidence given upon the hearing. It is true there was some conflicting evidence, but after a perusal of the whole evidence we are of the opinion that the conclusions of fact •stated by the referee are sustained by the weight of the testimony. In addition to the testimony of the<witnesses to the effect that in February, 1890, there was an agreement to waive the contract, there is quite significant force in the fact that the administrator subsequently inventoried the property which was found upon the farms ■occupied by the plaintiffs, and took possession of it and sold it as part of the assets of the estate. If the agreement had not been waived the personal property upon the farm in Middletown was transferred to the plaintiffs. Inasmuch as the administrator and his wife •and John Hull were present at the agreement, it is fair to assume that they had acquiesced in the waiver of it, and that the inventory of the property found on the Middletown farms and the sale of it were acts based upon the assumption that the contract of August, 1886, had been •canceled and waived, and by the agreement of tire parties annulled. The evidence seems to support the conclusion that the parties to the instrument of August, 1886, voluntarily consented to waive its terms and conditions, and that they should severally be limited to their legal rights as they existed after the abandonment of the contract. We think it was competent for the parties to make such an agreement, and that the contract was rescinded in toto (Fullegar v. Reville, 3 Hun, 600), and the agreement should be treated as being void ab initio. (Utter v. Stuart, 30 Barb. 20.) The evidence clearly indicates that the services were performed and the care bestowed upon the deceased and upon his wife in the full expectation that the same were to be paid for by his property. Indeed, the agreement contained a clause that such services should be a lien upon the deceased’s property, and after that agreement is waived or abandoned the plaintiffs ought not to be in any less favorable position than though the agreement had not been executed. The services were performed in the expectation of payment and in the expectation of payment out of the property of the deceased, and in the expectation entertained by all his children that the expenses, extraordinary as they were, should be provided for and due compensation ' made- by the property of the deceased which was to be applied in payment for such services. (Davidson v. Westchester Gas Light Co., 99 N. Y. 566 ; In Matter of Cunningham, 1 Hun, 214.) The evidence justifies an inference that the deceased became liable to the plaintiffs for the -services rendered in caring for him and his wife, and that they relied upon the property of the deceased to furnish ample compensation for the services bestowed upon him and his wife. The deceased was bound to support his wife and was bound to bury the corpse of his wife.” (Patterson v. Patterson, 59 N. Y. 583.) It is to be borne in mind that when the written instrument was made in 1886 the children had no interest in his real and personal property.

In Willard’s Equity Jurisprudence (p. 685) it is said: “ During the lifetime of the lunatic the next of kin have no interest in his estate. But as the lunatic, if of sufficient ability, is bound to maintain his family, and as the court is bound to see that his property is fairly devoted to that purpose, applications are not unfrequently made to the court for an order on the committee to make allowances in favor of those whom lie is bound to provide for, and for other relatives of the lunatic towards whom he is under no such obligation.”

"We tlaink this case is distinguishable from Massachusetts General Hospital v. Fairbanks (129 Mass. 78) and Whiting v. Sullivan (7 id. 107) aird In re Rhodes (44 Ch. Div. 94), and that the referee’s conclusion that the agreement, “under the circumstances of this case, in no wise affects the rights of the plaintiffs to recover in this proceeding for necessaries furnished the defendants’ testator and those. he was bound to support,” is correct and ought to be sustained.

Appellant calls our attention to McCreery v. Day (119 N. Y. 1), which is to the effect that where a contract is rescinded no claim in respect to performance or of what has been paid or received thereon may thereafter be made, unless expressly and impliedly reserved upon rescission. We think the case does not support the contention of the appellant. And the case of Oregon R. R. R. Co. v. Forrest (128 N. Y. 83) differs essentially from the case in hand.

(2) The referee charged the plaintiffs with the use of the land occupied by them at a sum that he found was the faff valuation of the rental, upon the assumption that the landlord or owner paid the taxes, and he found that the taxes which the plaintiffs necessarily paid amounted to $155.24, which he allowed to them in stating the account, and which seems proper to be allowed against the rent. He also found that the amount of the permanent repairs put on the buildings by the plaintiffs during the lifetime of the deceased amounted to $149.31, and that the “repairs were of substantial character and enhanced the value of said real property, and were suitable and proper to be made, and the costs of making them should be allowed the plaintiffs.”

He properly allowed the plaintiffs to have a credit of $42.93, which was for the amount which accrued to C. J. Dickinson for shingles furnished to the committee of the deceased, and in settlement of which the plaintiffs advanced the money and took an assignment of him from the account therefor. It was found by the referee “ that this work was necessary and proper to be done. The amount of said bill, reasonable and with interest, to the time of purchase, amounted to $42.93.”

(3) The contention of the appellant is that the referee allowed erroneously interest amounting to $574.11. The referee has not stated the basis upon which he allowed interest, nor the periods of time or any computation made by Mm of interest. We are inclined to think the case falls within the rule of Smith v. Velie (60 N. Y. 106), where it is said: “ Interest, however, is not allowable until the accounts are settled, and the termination of the employment by the death of the master gives no right to interest from that time on the balance unpaid; ” and in Holmes v. Rankin (17 Barb. 454) the referee’s report was made up, the value of board, lodging, etc., ££ without any interest thereon,” and his ruling in that regard was-approved by the court. Holmes v. Rankin was approved in De Witt v. De Witt (46 Hun, 258), and De Witt v. De Witt (supra) was cited with approval in Mansfield v. Central Railroad (114 N. Y. 339), and the latter case was cited with approval in Sayre v. State (123 N. Y. 297). The tenor of the cases seems to indicate that the referee fell into an error in allowing interest as stated by Mm in his findings of fact and conclusions of law.

(4) When the referee’s report was made chapter 686 of the Laws of 1893 was in force, which amended section 2718 of the Code of Civil Procedure, and in that section it was provided, In determining the question of costs the referee shall be governed by sections-1835 and 1836 of this act,” and section 1835 prescribes that costs shall not be allowed against an executor or administrator except as provided in section 1836, and that section provides that where the payment££ was unreasonably resisted or neglected * * * the court may awai’d costs against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent, as the court directs, having reference to the facts which appeared upon the trial.” From the allowance of costs it must be assumed that the referee was of the opinion that the claim was unreasonably resisted or neglected and that he based such conclusions upon ££ the facts which appeared upon the trial.” The judgment entered thereon requires the costs to be collected out of the estate, and the appellant has not challenged the j)ower or discretion of the referee in that regard. ■

(5) Several exceptions were taken during the progress of the hearing before the referee and to his refusals to find as well as to findings made by him. If the views already expressed are correct the exceptions present no prejudicial error. (See Barton v. Scramling, 31 Hun, 467; Johnson v. Hicks, 1 Lans. 150.)

The judgment must be reversed arid new trial ordered, with costs to abide the event, unless the plaintiff shall stipulate to reduce the recovery of damages by striking therefrom $574.11 (and any interest allowed thereon from the date of the referee’s report to the entry of judgment) in which event, the judgment as so modified is affirmed, without costs of the appeal to either party.

Martin and Mbrwin, JJ., concurred.

So ordered.