text:
    Percival Knauth and Others, Respondents, v. Adolph Heller and Others, Appellants.

      ■Amendment of answer —granted on condition of defendants Producing a witness for examination.

    The absence from the State of New York, so that the plaintiffs could not procure his testimony, of the agent of the defendants, with whom the transaction in suit was had, and upon whose statements the defendants based.their allegation, sought to he set up as a defense in an amended answer,

      Beld, to be a good ground for refusing leave to serve such amended answer, except upon condition that th“ defendants should produce such person for examination by tbe plaintiffs.
    Appeal by the defendants, Adolph Heller and others, from am order of the Supreme Court, made at the New York Special Term,, and entered in the office of the clerk of the city and county of New York on the 20th day of March, 1893, denyipgthe defendants’ motion for leave to serve an amended answer.
    The action was brought to recover the balance of a loan alleged to have been made by the plaintiffs’ firm of Knauth, Nachod & Kuhne, bankers in the city of New York, to the defendants, who were doing business in Bohemia under the firm name of A. Heller. The loan was made through one Arnold Heller, at that time the defendants’ resident agent in the United States. The complaint was served in May, 1891, the answer on January 12,1892, and a reply' to a. counterclaim contained in the answer on January 16, 1892; on February 25, 1892, the defendants served an amended answer, to which the plaintiffs served an amended reply.
    The plaintiffs examined said Arnold Heller as a witness before trial, and thereafter the defendants moved for leave to serve a proposed aménded answer, setting up the defense that the loan in suit was not made to the defendants. In support of this motion, the defendants’ attorney made an affidavit in which he stated that said agent, Arnold Heller, during his examination before trial, testified to facts from which the affiant perceived that not only ivas the agent without authority in contracting a loan, but that the loan was made solely for the use and benefit of the Crescent City Brewing Company of New Orleans, and could be repudiated by the defendants on the ground that the plaintiffs were in possession of facts and circumstances which charged'them with the knowledge of the fact that the loan was not made for the defendants, but was made for the Crescent City Brewing Company.
    The plaintiffs’ attorney made an affidavit in opposition to the motion, in which he stated that he did not know where said Arnold Heller then was, the defendants having, since the loan in suit was made, sent another agent to this country in his stead ; and that as the fact of the agency of Arnold Heller was admitted by the answer served on February 25, 1892, he did not endeavor to establish it when Arnold Heller was examined by him before trial.
    The motion was denied, and this appeal was taken from the order of denial.

      B. Kehle, for the appellants.

      A. Knauth, for the respondents.
   Per Curiam:

The objection relied on by the respondents to granting the relief-asked for is that the witness that they examined, being the person who was the agent of the defendants to whom the loan was made, was not now within this State so that they could procure his testimony. • Such objection would justify the court in refusing the relief asked for, unless the witness is produced for examination by the plaintiffs.

Under the circumstances we think the motion should be granted upon condition that the defendants produce such witness for examination, and pay ten dollars costs of the motion below, and ten dollars costs and disbursements of the appeal, and that the amended answer be served and the costs paid within two days after service of a copy of the order to be entered hereon, and the witness be produced within thirty days thereafter.

In-case these conditions are not complied with, said answer should 'be stricken out, and the order denying leave to serve said amended answer affirmed, with ten dollars costs and disbursements.

Present — "Van Brunt, P. J., O’Brien and Ingraham, JJ.

Motion granted upon the conditions stated in opinion, and ten dollars costs of the motion below, and ten dollars costs and disburse- < ments of the appeal; and that the amended answer be served and the costs paid within two days after the service of a copy of the order to be entered hereon, and the witness be produced within thirty days thereafter. In case these conditions are not complied with, said answer should be stricken out, and the order denying leave to serve said amended answer affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    Jeremiah Eighmie, Respondent, v. Edgar B. Taylor, as Administrator of James Collingwood, Deceased, Appellant.

      Transaction with a deceased person — interest in the event — conversation between the deceased and a third person in the presence of the witness — error in admission of , evidence. .
    The disqualification, under section 829 of the Code of Civil Procedure, of a person interested in the event of the action, to testify in reference to a personal transaction with a deceased person, depends entirely upon the facts as'they exist at the time when the testimony is sought to he given.
    If such disqualification exists at the time when the evidence is sought to be given, it extends to and renders incompetent the testimony of the witness as to transactions which occurred before the witness became interested.

      Sembla, that in probate or other cases, where a will, other instrument, or act, is contested on the ground of undue influence, restraint, mental incapacity or fraud, a person who, through being interested in the event, is included in the provisions of said section 829, is disqualified to testify to a transaction or communication which occurred in his presence or hearing, although it was not with or addressed to such person, or one in which he participated.
    Upon other issues than those stated above, an interested witness may be permitted to testify to a conversation or transaction between a decedent and a third person in the presence of the witness, provided he was not referred to by the parties to such conversation, and did not participate in it by word, sign or act; but if there was any such reference or participation, although slight, the witness is incompetent.
    In an action brought against an administrator, to recover damages because of fraud on the part of the defendant’s intestate in making a sale, it appeared that the plaintiff’s wife was interested in the event, through having become the owner of the cause of action;' she was offered as a witness on behalf of the plaintiff, and undertook to testify in relation to a material conversation between her husband and the defendant’s intestate, which occurred in her presence and hearing prior to her becoming the owner of the cause of action, and in which it appeared she was referred to, and in which she participated to some extent.

      Held, that the witness was so far referred to and participated in the conversation as to render her evidence incompetent.
    The rule applied — that it cannot properly be said that material evidence erroneously admitted upon an issue is harmless, unless the testimony preponderates .'so greatly in favor of the proposition that a verdict against it would be set ■aside by the court as contrary to the evidence.
    Appeal by tbe defendant, Edgar B. Taylor, as administrator of James Collingwood, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Delaware county on the 17th day of June, 1889, upon the verdict of a jury rendered at the Delaware Circuit in favor of the plaintiff, and from an order made at Special Term and entered in said clerk’s office on the 23d day of December, 1889, denying the defendant’s motion for a new trial made on a case and exceptions.
    On December 31, 1872, the defendant’s intestate sold to the plaintiff an interest in certain 'oil wells situated in Pennsylvania. •Subsequently the plaintiff commenced an action against the defendant to recover damages for an alleged breach of warranty made on «uch sale. A verdict was recovered, which was affirmed at General Term and reversed by the Court of Appeals on the ground that the ■contract being in writing and containing no words of warranty, no ■oral warranty could properly be proved. After the decision of the Court of Appeals, the plaintiff obtained an order at Special Term, ■permitting him to amend his complaint by alleging fraud on the part of the defendant’s intestate in making the sale.
    An amended complaint was served, the case put at issue and tried, and the jury rendered a verdict for $2,000, which was set aside by the trial justice on the ground that the amount was insufficient. The case again came on for trial, and a judgment was obtained in favor of the plaintiff for $14,980.28, which is the judgment appealed from.
    On the last trial, Naomi Eighmie, the wife of the plaintiff and the real owner of the cause of action, was called as a witness and testified that she heard a conversation between Mr. Collingwood, defendant’s intestate, and tlie plaintiff, at plaintiff’s house. She then testified that she saw a letter at' that time which the intestate had, whereupon the defendant’s counsel said : “ I suppose it will be conceded that this lady is the owner of the cause of action.” To which the plaintiff’s counsel replied : “ I suppose it is the fact.”
    Defendant’s counsel then objected to any testimony of any communication by James Collingwood to her or in her presence, or any transaction between the witness and Collingwood, or by Collingwood in her presence. To this objection the plaintiff’s counsel replied : “ She wasn’t then interested in the transaction. It is not the transaction between the parties. Since this action was commenced the cause of action has been transferred to Mrs. Eighmie; this woman had nothing to do with the transaction at that time.” The court then remarked: “ And didn’t participate in the transaction at all? ” Plaintiff’s counsel: “No, sir; she didn’t take any part in it.” The court: “If you say she had nothing to do with the transaction, you can go on with the evidence. I will overrule the objection.” To this ruling an exception was taken by the defendant.
    Subsequently the witness testified : “ I heard the conversation at that visit of Mr. Collingwood between him and Mr. Eighmie in relation to the sale of these oil wells. I didn’t take any part in that conversation.” She was then asked to give the conversation, which was objected to by the defendant, who requested the privilege of asking her a few questions preliminarily, which the court granted. Thereupon, the following evidence was taken as to whether the witness took part in such conversation: “ Cross-examination by Mr. Baker : Q. "Who was present during the conversation that you have referred to? A. Mr. Collingwood and Mr. Eighmie and myself. We were the only persons present during the conversation. Q. Were you present during all the conversation had by Mr. Collingwood on that occasion? A. Yery nearly so all the evening. The fore part of the evening I was in and out of the rooms at various times. Q. Did you talk with Mr. Collingwood while he was at your place? A. Not on business. Q. Did you talk with him? A. I entertained him the same as any lady would. Q. You talked with him? A. Yes, sir. Q. Did you object to your husband’s entering into some arrangement with him? A. Yes, sir. Q. Do you recollect what Mr. Collingwood said to you about your objecting to it ? A. No, sir; he never said nothing to me; he said it in my presence. Q. Do you remember testifying on the other trial ‘ I remember what Collingwood said to me; he didn’t like it because I objected?’ A. Yes, sir; I remember it well. Q. That did take place then ? A. I was talking to my husband at the time. Q. You spoke to your husband about it? A. Yes, sir; and then Mr. Collingwood made the remark in the presence of both of us. Q. About your objecting to this bargain or arrangement or whatever it was ? A. Yes, sir; he said he never advised with his wife on business matters.
    ■ “Defendant’s Counsel,— Now we object to any evidence by the witness concerning any personal transaction or communication between her and James Collingwood, and to any testimony or" any communication by James Collingwood made to her or in her presence, or any transaction between said Collingwood and witness, or any transaction or act of the said James Collingwood in the presence of the witness.
    “ The Court.— They may wish to examine further.
    “ Direct-examination resumed: I did not take any part in the talk or transaction between my husband and Mr. Collingwood. Before my husband made any agreement I opposed it. . I spoke to him entirely outside. The remark that was made by Mr. Collingwood was generally directed. Q. The remark that you have given, that he never permitted his wife — ? A. He said he didn’t consult his wife on business matters. They then went on and had their whole conversation without any further interruption. At that time I had no interest in it excepting the interest of advising my husband-"When I speak of having anything to say with him while he was there, it was only in entertaining him as a guest, and was entirely outside and independent of this business talk. "When I advised my husband it was when we were in our own room afterward. Mr. Collingwood was not present at the time. It came up afterwards by Mr. Eighmie telling him I had advised him not to. This talk about my advising him came up the morning following the conversation, before Mr. Collingwood went away. . At the time of the conversation I had no talk in regard to it.
    “ Cross-examination by Mr. Baker : I don’t remember that my husband told Mr. Collingwood about my objections in my presence. Mr. Collingwood did not speak to me directly about it in tbe presence of my husband. I was not talking to him at the time; but I heard Mr. Collingwood speak of this.
    “ By the Court : Q. I understand that Mr. Collingwood and you and your husband had the talk this evening ? A. It was in the morning before he went away. Q. Did Mr. Collingwood and your husband have a talk in the evening ? A. Yes, sir. Q. That conversation you took no part in whatever ? A. No, sir. Q. Where was this talk you had with your husband when you advised him to let the matter alone? A. It was in our room afterwards. • Q. After Mr. Collingwood and your husband had separated? A. Yes, sir. Q. And then the talk by Mr. Collingwood that he didn’t advise with his wife, was the next morning ? A. Yes, sir.
    “ Plaintive’s Counsel.— It is the talk in the evening we are now offering to show.
    “ Deeenuant’s Counsel.— We wish to object to any testimony by this witness, on the ground that she is disqualified by her interest under section 829 of the Code.
    “By the Court: Q. Was the conversation of the night before continued further the next morning? A. Yes, sir. Q. Was there anything else said except what you have stated about your husband telling him what his wife had said, and his saying he didn’t advise with his wife? A. Nothing said new from the night before excepting the remark he made. Q. But they did continue and talk about the same matter they had talked about the night before ? A. Yes, sir.
    “ By Mr. Gumming : Q. Now state whether the conversation, the business conversation, between your husband and Mr. Eighmie was completed during the night prior to the time referred to by you ? [Objected to.]
    “ The Court.— She may answer.
    “ A. Yes, sir. Q. And in the' morning do you know how he come to speak of the subject about his not advising with his wife ? A. I spoke to my husband, I didn’t wish him to go to Elizabeth for fear he would take cold, and that was the remark that Mr. Collingwood made. Q. Do you know why Mr. Collingwood spoke the next morning ? A. What I said to my husband was what called out the remark. Q. Do you know whether your husband was informed — or had informed him that you had objected ; what do you know upon that subject ? A. I don’t remember. This conversation was in the morning after breakfast. Ido left the house with, my husband, I think, for the 8:25 train in the morning. It was just before they left that he said he didn’t advise with his wife; just as they were preparing to go. Q. And was there much said about it; was there any continued or lengthy conversation about the subject that had been talked the night before ? A. No, sir. There is nothing else I remember excepting what I have testified in response to Mr. Baker, that took place in the morning. At this time I was advising my husband not to go on account of his ill-health, and of endangering it. Q. "Was that what brought out the talk of Mr. Collingwood, that he never advised with 'his wife ? A. No, sir, on business — [Objected to as leading.]

      “ The Court.— I think you are leading considerably.

      “ A. I objected to my husband having anything to do with it, and going out and exposing his health ; that is the way it came up in the morning. In response to that, that was the way Mr. Collingwood made the remark that was addressed to both of us. That was all the conversation that took place in the morning that I can remember.
    “ Cross-examination by Mr. Baker : Q. See if I can refresh your recollection on the subject. I will read the testimony on the previous trial: ‘Q. You made no objection to the contract or arrangement? A(. Yes, sir; I objected all through ; I always have objected to it, and I didn’t want him to run the risk. I didn’t want him to run the risk the same as any wife would, and I didn’t want him to have anything to do witli the well at all. Q. "What risk djd you think he might run; that he might lose on it ? A. Yes, sir; I had good reason to, he had lost once.’ Q. Did you testify to that ? A. Yes, sir; that was before my husband, but not before Mr. Collingwood. Q. That was the reason you was objecting to it ? A. Yes, sir. Q. And that is the testimony you gave on the previous trial ? A. Yes, sir. Q. ‘ Did you object the night before ? A. I told you I always objected.’ Is that true ? A. I always objected to his going into the oil business.

      “ Direct-examination resumed : Q. Did you, on the same trial, say you didn’t make any of these objections in the presence of Mr. Oollingwood ? A. I didn’t make the objection in the presence of Mr. Oollingwood; in that I refer to the objections 1 made to my husband privately.
    “ Cro&s-examination resumed: Q. Didn’t you swear on the other trial, you could not say whether you did or did not, when asked this question: ‘ In the presence of Mr. Oollingwood ? ’ A. No, sir; I didn’t say it in the presence of Mr. Oollingwood. Q. "VYasn’t this question a&kep you (reading from minutes of previous trial): ‘ Did you in fact object the night before to Mr. Eighmie’s purchasing in the presence of Mr. Oollingwood ? A. I don’t know that I did, in the presence of Mr. Oollingwood. Q. You won’t say either way? A. No. sir.’ Q. Is that correct, did you so testify on the other trial? A. Yes, sir ; I think I did: I didn’t say it in the presence of Mr. Oollingwood. Q. Did you testify on the other trial about what I just read to you; did you so testify ? A. I think so.
    “Direct-examination resumed (reading from testimony of previous trial) : ‘Q. You won’t say either way whether you did or not ? A- No, sir; but I don’t think I did in the presence of Mr. Oollingwood, but I don’t remember. I had no conversation the night before directly in reference to the sale matter; Mr. Eighmie does the talking, I don’t do any of it; they did the talking the night before; I didn’t talk to Oollingwood on business, none at all; they were talking it over themselves. Oollingwood gave his opinion 'as to what the property was worth quite freely. Eighmie said he would have to take his word for it. I don’t remember as Eighmie said he thought Oollingwood had estimated it too high. The next morning after Oollingwood had left my house, and I talked some about this conversation with my husband, and I talked it over very many times. I didn’t talk to my husband that night in Collingwood’s presence, I don’t remember anything of that.’ Q. That testimony was given at the same time with what I have read ? A. Yes, sir.
    “ Cross-examination resumed: That morning they were getting ready to go down to see Mr. English, whose testimony has been read here to-day. He lived about two miles from our place. I don’t know if he was an officer of the courts in some form, either a lawyer or a master in Chancery, or both. I was not acquainted with him. I didn’t have any understanding on the subject. ■

      “ Direct-examination resumed : My lmsband had been sick and hadn’t been out until that morning. Q. And you was anxious about his health and advised him not to go on account of his health ? A. Yes, sir. Q. And that was followed by this remark of Mr. Oollingwood that he didn’t allow his wife to interfere? A. Yes, sir; I don’t remember that my husband said anything in particular to Mr. Oollingwood the next morning in reference to my advice. I objected to his going out with Mr. Oollingwood that morning. They were talking about going down to Elizabeth to have the papers drawn. They were only talking a few moments before breakfast. I don’t remember that they talked after breakfast at all. They talked, if I remember, about having their papers drawn, and where to go in Elizabeth. • Nothing was said about the terms of the papers that morning; that was spoken of after he came home. I think my husband said to Mr. Oollingwood that he always advised with me. That was all that was said in reference to that when I objected to his going; I objected before Mr. Oollingwood, in his presence. I objected to his going to Elizabeth in the morning, and he said he always advised with his wife. Oollingwood said he never advised with his wife on business matters. That was all that was said about advising with me, as near as I can recollect.”
    After this preliminary examination of the witness, the court overruled the defendant’s objection. To which ruling the defendant excepted. The witness was then permitted to testify fully as to the conversation and transaction had between the plaintiff and the defendant’s intestate, which was the subject of this action.

      Thompson & Town, for the appellant.

      Alex. Ounvrning, for the respondent.
   Martin, J.:

The first and most serious question presented on this appeal is, whether the court properly admitted the evidence of the plaintiff’s wife, as to the conversations and transactions which took place between her husband and the defendant’s intestate, she being the real party in interest. "When this evidence was offered, she was clearly interested in the event of the action. The respondent contends that as she was not interested when the conversations and transactions occurred, she was competent at the time of the trial. We find no authority sustaining this claim. It was held in Comins v. Hetfield (80 N. Y. 261), that the disqualification under section 399 of the old Code, depended entirely upon the facts as they existed at the time when the testimony was given.

In Farnsworth v. Ebbs (2 Hun, 438, 440), it is said : “ The test of the prohibition, contained in section 399 of the Code, is not whether the interests of the witness were the subject of the transaction or communication. Cases will often arise when a witness cannot be permitted to testify to a transaction or communication in which he had at the time no interest. For example, when an admission has been made, respecting property of which the witness afterward became the owner; or when the witness acted for another in a transaction, in the subject of which he afterward acquired an interest.” See, also, Wooster v. Booth, 2 Hun, 426; Andrews v. Nat. Bank of North America, 7 id. 20; Hadsall v. Scott, 26 id. 617; Church v. Howard, 79 N. Y. 415, 420; Miller v. Montgomery, 78 id. 282. The rule must be the same under section 829 of the present Code, and the witness was, we think, incompetent to give any evidence which was within the inhibition of that section.

This leads to the consideration of the question whether she was competent to. give (Addenee of the transaction and conversations which were the basis of this action! The authorities bearing upoji this question are somewhat in conflict, and it may be well to examine some of the principal cases to the end that we may, if possible, ascertain the rule that should be applied in this case.

In Simmons v. Sisson (26 N. Y. 264), it was held that'section 399 of the old Code did not prohibit a party sued by an administrator from testifying to a conversation heard by him between the deceased and a third person.

This case was followed by Cary v. White (59 N. Y. 336), where it was held that under section 399, a party was not precluded by that section from testifying to statements made by a deceased person to a third party, although the witness participated in the conversation, so long as his testimony was limited to what was not personal between him and the deceased. The doctrine of that case when applied to a conversation in which the witness did not join, was reaffirmed in Hildebrant v. Crawford (65 N. Y. 107). The opinion of the court in the latter case was to the effect that a party might testify to a conversation heard by him, between a principal and agent, who were both dead, as against a successor in interest of the principal. The doctrine of thosé cases was again recognized in Badger v. Badger (88 N. Y. 559), limited, however, to conversations in which the interested witness took no part.

In Holcomb v. Holcomb (95 N. Y. 316, 325), in discussing this question, it was said : The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another. The statute is a beneficial one and ought not to be limited or narrowed by construction. Although it must appear that the interview or transaction sought to be excluded was a personal one, it need not have been private or confined to the witness and deceased. If they participated, it does not change its character because others were present. A contrary rule would defeat the reasonable intent of the statute that a surviving party should be excluded as one interested from maintaining by his testimony an issue which in any degree involved a communication or transaction between himself and a deceased person,” and the case of Cary v. White (59 N. Y. 336) was again under consideration, and it was there said: “ In the case of Cary v. White the court regard it as settled that the provisions of the Code (§ 399) there under 'consideration, and which were not unlike those now in force (§ 829), do not preclude a party from testifying to the statement of a person deceased, made to a third person in the hearing of a witness.” But Judge Danforth in the opinion in that case subsequently adds : If while the decedent is conversing with a third person, the witness by word or sign participates in it, or is referred to, his evidence of what occurred cannot be received.”

In Lane v. Lane (95 N. Y. 494, 502), in discussing this question, it was said : “ Something may have occurred by word or act in the presence of the testator, and between him and others, to which she (the testator’s wife) was not a party, and of which she could testify,” citing Cary v. White (59 N. Y. 336); Kraushaar v. Meyer (72 id. 602). In tlie latter case it was held that although a party was not incompetent under section 399 of the old Code to testify to an independent conversation between the deceased and a third person, yet, if he participated in the conversation and it related to a transaction between him and the deceased, he was incompetent.

In Brague v. Lord (67 N. Y. 495), where, in a conversation between the decedent and another, in the presence of a witness, who was disqualified under section 399, and the statement proved appeared to have been addressed to the plaintiff as well as the other, indicated only by his turning towards the- plaintiff when the statement was made, it was said that the witness was incompetent, and the admission of the evidence was error.

In Simmons v. Havens (101 N. Y. 427, 433), the plaintiff was allowed to testify to conversations between her deceased mother and the defendant, at which she was present, but it did not appear she took any part in the conversation, and the admission of her evidence was held proper, and sustained hy the ease of Cary v. White (59 N. Y. 336), thus substantially reaffirming the doctrine of that case, as limited in the preceding cases to conversations between .a decedent and a third person, in which she took no part.

In the Matter of Eysaman (113 N. Y. 62), where the probate of a will was contested on the ground of want of testamentary capacity on the part of the testator, it was held that a witness who was not competent under section 829, was not only not competent to testify as to transactions directly between the witness and the deceased, and communications by the latter to the former, but was disqualified to testify to any transactions between the deceased and others in any portion of which the witness participated, or any conversation in his hearing, although not with, or addressed to, him. In the opinion in that case, it is said that the case of Cary v. White (59 N. Y. 336) is not an authority for the admission of such evidence. In discussing that case, Ruger, Ch. J., criticises it as follows: Several grounds for the conclusion reached in that case were stated, but a single judge, only, concurred with the opinion; two judges concurred in the result and two dissented, the remaining judge not voting. One of the grounds suggested in that case was that the party objecting to the evidence offered was not an assignee of the deceased person within the meaning of the statute. The evidence there sought to be given consisted of a declaration made by the deceased person to his own attorney in the presence of the plaintiff. The point was presented upon an objection to the question calling for the evidenee, which was sustained by the trial court. The judge who wrote in this court was of the opinion that the question excluded did not necessarily relate to a personal communication or transaction between the deceased person and the witness, and was, therefore, competent. The case cannot be considered an authority upon the question here presented.”

In the Matter of Will of Dunham (121 N. Y. 575), where the probate of a codicil to a will was contested on the ground of undue influence, restraint and mental incapacity, a residuary legatee was called by the contestants, who offered to prove by him conversations and transactions of the testator with the witness and others in his presence. The evidence was excluded. The Court of Appeals held that the evidence was inadmissible. In the opinion in that ease it is said: The object of the proposed evidence could only have been to show undue influence, or restraint, exerted upon the deceased, or his mental incapacity. * * * Therefore, while, as to any communications or transactions with the witness, the proposed evidencp was plainly enough inhibited by section 829 of the Code, his testimony as to the conversations, or transactions, while he was present in the room, had between the deceased and other persons, was, under the circumstances, inadmissible,” citing the cases of Holcomb v. Holcomb (95 N. Y. 316) and Matter of Eysaman (113 id. 62), and then it is said: The ground for the ruling is that communications in the presence of the witness are deemed to be made to him. • "While the ruling may be said to'be stretched to the extremest tension it has the merit, possibly, of being in furtherance of justice. The evidence is intended to work here against the respondent, who derives her -interest under the testator’s codicil, and whose lips are sealed by the law as to the matters; and to permit a Avitness so much interested as this one was in the amount of the estate ultimately distributable, to testify to things said and done by testator, though Avith others, but while he was present, with the only supposable purpose of affecting the interests of the respondent, would certainly seem to be giving an undue advantage to the one as against the other. This is certainly true, if the evidence sought to be elicited is material in its bearing upon the question of restraint or influence upon the testator, or upon his disposing strength'of mind. * * * This section of the Code offers considerable difficulty in the endeavor to give to its provisions a reasonable and just interpretar tion, and each case, as it arises, may, in its circumstances, control the application of the rule intended to be established by the Legislature.”

In Devlin v. The Greenwich Savings Bank (125 N. Y. 756), which was, in effect, an action to establish a gift causa mortis, the plaintiff offered to prove that she was present at a conversation between her uncle, through whom she claimed, and a Catholic priest. This evidence was objected to and excluded. It was held that inasmuch as there was nothing to show that she could testify to any fact that was material, it did not appear that any injury resulted from the ruling. Judge Peokham, who wn-ote the opinion, then added: “ It is doubtful if the witness could be permitted to testify as to a conversation in her presence between her uncle and Father Carew relative to the gift she claimed. The cases of Esyaman’s Will (113 N. Y. 62), and Dunham’s Will (121 id. 575), have very greatly limited the old rule in regard to such conversation.”

In the case of Petrie v. Petrie (126 N. Y. 683), where the validity of the will of Nicholas II. Petrie was the only disputed question, the plaintiff was permitted to testify to a conversation she overheard between her father (the testator) and her brother Morgan, in which the latter urged his father to change the disposition he intended to make for the benefit of the plaintiff. This testimony wás objected to as incompetent, under section 829 of the Code of Civil Procedure. Upon that question the court said: “ The ruling of the trial court upon the objection to the above question would present a somewhat important point under the construction which this court has given to section 829 in recent cases, if it could be held that the answers in any degree affected the result,” citing Holcomb v. Holcomb (95 N. Y. 326); Matter of Eysaman (113 id. 72); Matter of Dunham (121 id. 575). But the court held that the evidence was harmless. In discussing that question the court adds: “With the issue of fraud and undue influence out of the case this testimony might, very prudently, have been given by the defendant.”

In Adams v. Morrison (113 N. Y. 152), where the question was whether the plaintiff was a partner with his deceased father, the plaintiff offered to prove by his own testimony that about the time he claimed the partnership was formed the decedent made an entry in his presence in a docket or register, of the name of himself and the plaintiff as a firm. This was objected to as incompetent under section 829 and excluded. The court held that it involved a personal transaction between the decedent and the witness, and that the plaintiff was incompetent, citing Holcomb v. Holcomb (95 N. Y. 316); Clift v. Moses (112 id. 126); Matter of Eysaman (113 id. 62).

In the following cases, it was held that an interested witness may testify to a conversation between a decedent and a third person, in which the witness did not participate: Stern v. Eisner (51 Hun, 221); Smith v. Ulman (26 id. 386); Matter of Brown (38 N. Y. St. Repr. 130); Conolly v. O’Connor (17 id. 261; affirmed, 26 id. 840), but upon the ground that the witness was not interested in the event of the action.

In Price v. Price (33 Hun, 69), which was an action by the plaintiff to recover the proceeds of bonds which wrere alleged to have been placed by her in the hands of the defendant’s testator for safe-keeping, and which had been subsequently sold by him, the plaintiff testified that she had $12,000 in bonds in her trunk on or before March 25, 1865 ; that on the morning of that day, five $100 bonds were stolen; that the testator came to her room after the discovery of the theft, with a detective, who, after examining the room, said to the testator that the theft had not been committed by a professional thief ; that if it had been, he would have taken all the bonds. The plaintiff was then allowed, under the defendant’s objection and exception, to answer the following question: “ What did Price (defendant’s testator) say to Bennett (the detective) in your presence?” Her answer to which was: “No, of course ; if it had been, they would have taken all of them; whereas here is the balance of the $12,000 in my pocket. He took them out of his pocket and exhibited ■— took them from the envelope they were in. But,’ he said, they won’t- get any more, because I am going to put them into a bank for her,’ meaning me.” She testified that she spoke more than once during the conversation, but that she said nothing while the remarks as to which she had testified were being made. It was held, that the testimony was inadmissible under section 829' of the present Code.

In Erwin v. Erwin (26 N. Y. St. Repr. 759), which was an action for specific performance of a parol agreement of a deceased person to convey land to the plaintiff, the plaintiff’s wife, who was. interested in the event of the action, was present when the agreement was made. The conversation was between the decedent and plaintiff. His wife said nothing, as deceased did not like her, and she was afraid that if she spoke he would be angry and oppose the arrangement. It was, however, held that she was incompetent testify as to the conversation or transaction between the decedent and her husband. (See, also, Campbell v. Maginn, 53 Super. Ct. Rep. [21 J. & S.] 514; Matter of Bartholick, 35 N. Y. St. Repr. 730.)

Having thus examined the principal cases in the Court of Appeals, and the later ones in the other courts of this State, bearing upon the question under consideration, we think they clearly establish the rule that, in probate or other cases where a will, other instrument or act is contested on the ground of undue influence, restraint, mental incapacity or fraud, a person who is interested in the event, of an action or proceeding, is disqualified to testify to any transaction or communication which occurred in his presence or hearing, although it was not with or addressed to such person, or one in which he participated. It also seems to be established by these cases that, upon other issues, an interested witness may be permitted to testify to a conversation or transaction between a decedent and a third person in the presence of the witness, provided he was not referred to by the parties to such conversation, and did not 'participate in it by word, sign or act, but if there was any such reference or participation, although slight, the witness is incompetent.

Applying these rules to this case,, it becomes obvious, we think, that the evidence of Mrs. Eighmie was incompetent. The issue in this case was fraud. The witness admits that she talked with the decedent and her husband on the occasions of the conversation or transaction testified to by her, and Avas referred to in the conversation between them. But she seeks to qualify herself as a witness by testifying that her conversation in no Avay related to the transaction between them, and that her objections to her husband’s entering into it were made in the absence of the decedent, and to her husband alone. Yet, when we read the whole of her evidence bearing upon this question, which was somewhat conflicting and uncertain, and indicates the existence of a strong desire on her part to qualify herself as a witness, we are led irresistibly to the conclusion that she was so far referred to and participated in the conversation or transaction between her husband and the decedent, to such an extent as to render her evidence incompetent within the principle of the cases cited, notably the cases of Brague v. Lord (67 N. Y. 495); Price v. Price (33 Hun, 69) and Erwin v. Erwin (26 N. Y. St. Repr. 759). Ve think the court erred in admitting her evidence, and that for that error the judgment should be reversed.

The plaintiff’s contention that the admission of this evidence was harmless, as there was other evidence sufficient to justify the verdict, cannot be sustained. The evidence given by the witness was material and bore directly upon the issue between the parties. It cannot properly be said that material evidence erroneously admitted upon an issue is harmless, unless the testimony preponderates so greatly in favor of the proposition that a verdict against it would be set aside by the court as contrary to the evidence.” (Matter of Eysaman, 113 N. Y. 70, 71.) It is clear that if we adopt the rule laid down in the case cited, it cannot be held that the error of the court in admitting this evidence was harmless.

There are other exceptions as to the admission of evidence and the charge of the court, to which our attention is called by the appellant’s brief, but as the judgment must' be reversed for the reasons already stated, they need not be considered at this time.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Hardin, P. J., concurred; Merwin, J., concurred in the result.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.


author: .'Martin, J.:

text:
    Georgie Petrie by G. Harrison Smith, her Guardian ad litem, Respondent, v. Frederick Williams and Thomas H. Breen, Appellants.

      Conversion of promissory notes belonging to an infant — contracts between attm'ney and client — an infant’s liability for legal services — avoidance of an infant’s executory contract — testimony given by one defendant in another proceeding, inadmissible as against a co-defendant.

    As a condition, of the settlement of an action for a breach of promise of marriage, brought by an infant, the defendant in that action agreed to give her his promissory notes for a certain amount; in the infant’s absence these notes were taken by her attorney, Breen, and were made payable to him, without the infant’s knowledge or consent; thereafter a third party, Williams, by arrangement with Breen, indorsed the notes and obtained their discount by and transfer to a bonafide holder before maturity. The proceeds of the notes were received by Breen and Williams and only a portion thereof turned over to the infant; thereafter the infant, by - guardian, brought an action against Breen and Williams to recover the value of the notes, on the ground of their conversion.

      Held, that as the evidence tended to show that before any of the notes were transferred, both defendants knew that the plaintiff was an infant, and that there was a concert of action on tlieir part to procure the notes without paying the plaintiff an adequate compensation therefor, it was sufficient to require the submission to the jury of the question of Williams’ good faith in procuring, indorsing and transferring the notes, and to justify a verdict against him, as well as against Breen.
    An attorney who seeks to avail himself of a contract made with his client must establish affirmatively that it was made by the client with a full knowledge of all the material circumstances known to the attorney and is in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him.
    If a liability exists on the part of an infant to pay for services performed by an attorney, when necessary for the infant’s protection or that of his estate, such liability is limited to the actual value of the services rendered, and the infant will not be bound by any agreement which he may have made as to the amount.
    An infant cannot authorize or consent to the transfer of a promissory note belonging to him, so as to relieve another from liability for a conversion of the note.

      Semble, that an executory contract of an infant, relating to his personal property, may be avoided by him during infancy.
    The defendants contended that the plaintiff could not recover without tendering to the defendant Breen all she had received from him. It appeared that the defendants were permitted to prove all that had been advanced to the plaintifE, and the jury deducted that amount from the value of the notes other than. those which had been delivered to Williams for real estate conveyed to the plaintiff, and also that all the money that had been paid to the plaintiff by Breen had been expended or squandered by her during her infancy.

      Held, that under these circumstances, the defendants had no moral or legal right to require the plaintiff to restore the money received by her, as they were allowed the full benefit of the amount thus paid, and the plaintiff could not make such restoration.
    Before the trial and subsequent to the transfer of the notes in question, the defendant Breen had been examined in proceedings supplementary to execution, at which examination the defendant Williams was not present; a part of the testimony given on this examination which tended to rebut receipts of the plaintiff acknowledging certain payments to her by Breen was admitted in evidence against both defendants, over the objection of the defendant Williams, that it was incompetent and hearsay.

      Held, that this testimony was competent as against Breen hut not as against Williams, and that its admission as against the latter was error which called for a reversal of the judgment as against him.
    Separate appeals by tlie defendants, Frederick Williams and 'Thomas IT. Breen, from a judgment of tlie Supreme Court, entered in the office of the clerk of Jefferson county on the 18th day of March, 1892, upon a verdict in favor of the plaintiff rendered at the Jefferson Circuit, and from orders denying a motion for a new-trial, made by the defendant on the minutes of the trial judge.

      Watson M. Rogers, for appellant Williams.

      .Hcmnibal Smith, for appellant Breen.

      Elon R. Brown, for respondent.
   .'Martin, J.:

This action was to recover the value of five promissory notes, of ■which the plaintiff was the owner, and to which she claimed the right of possession. The plaintiff was an infant. When about nineteen years of age, she and one Jeremiah Petrie entered into a contract, by which each agreed to marry the other. While this contract was in existence, and before it was performed, the plaintiff was seduced by Petrie, who then refused to fulfill his contract.

While matters between the plaintiff and Petrie were in that sitna-tion, she employed the defendant, Thomas H. Breen, to commence .an action against Petrie to recover damages for the breach of his marriage contract. In pursuance of this employment, Breen applied for the appointment of a guardian ad litem of the plaintiff, who was appointed December 11, 1889.

On December 19, 1889, an action was commenced by Breen for the plaintiff against Petrie, and on the twenty-first day of the same month, an agreement was entered into between her and Petrie for the settlement of the action, whereby Petrie agreed to marry her and give her his notes for the sum of $3,000. In performance of this agreement, Petrie made his five promissory notes for that sum, four of which were for $500 each, and one for $1,000, and delivered them to Breen for the plaintiff, and also married her. The notes were taken by Breen in the absence of the plaintiff, and were made payable to him or his order, without her knowledge or consent.

After the marriage and delivery of the notes to Breen, and on December 31, 1889, he attempted to get one of the $500 notes discounted at the Watertown National Bank, but the bank refused to discount it. Thereupon the defendant Williams indorsed it, and procured it to be discounted by that bank for Breen. On the same day Williams transferred to Breen certain mortgages, which he (Williams) held on property in the city of Watertown, the title to which stood in the name of Breen’s deceased wife, and received therefor the $1,000 note given by Petrie to the plaintiff.

On the 15th of January, 1890, the defendant Williams came to Watertown on the suggestion of Breen, and sold Breen a house and lot worth $600 or $100, and transferred it to plaintiff, for which he received two other of the $500 notes, and gave his check to Breen for $250. The consideration named in the deed was $1,500, and the plaintiff was informed that that was the price paid. When the deed was given to the plaintiff, she executed a mortgage on the premises to Breen for $150, which he subsequently assigned to Williams as security for indorsements made by him for Breen.

On April 16, 1890, Williams purchased the last $500 note of Breen, and gave him his check for the amount. Thus Williams became the holder of all the notes given to the plaintiff on the settlement of her action, except the $500 note which he procured to be discounted for Breen. The notes that came into Williams’ possession were transferred by him to the bank before they became due. Thus, through the instrumentality of Williams and Breen, the notes for $3,000, given plaintiff in settlement of her cause of action, were all transferred to a bona fide holder before they became due.

The evidence tended to show that before any of the notes were transferred, both defendants knew that the plaintiff was an infant, and that there ivas a concert of action on their part to secure these notes without paying her an adequate compensation therefor. This is shown both by circumstances and direct proof. It seems impossible to harmonize the circumstances and course of action pursued by the defendants, with an intent upon the part of either to deal justly and faiidy with the plaintiff. We think the evidence was sufficient to require the submission to the jury of the question of the good faith of Williams in procuring, indorsing and transferring these notes, and to justify the verdict against him. (Vosburgh v. Diefendorf, 119 N. Y. 357; Canajoharie N. Bank v. Diefendorf, 123 id. 191.) It follows, therefore, that the judgment should be sustained, unless the form of the action was improper, or there is some otlíér valid exception which requires a reversal.

But it is caid that there was a written agreement between the plaintiff and Breen, by which he was to have, as a compensation for his services, one-lialf of the recovery or amount secured by settlement, and that subsequently a written settlement was had between them by which the notes were divided. The answer to this claim is: (1) That the plaintiff testified that she never made any such agreements, and that her signatures to the papers introduced in evidence, including the receipts as well as the agreements for compensation and of settlement, were obtained without her knowledge as to the contents of the papers signed. (2) That she was at the time an infant, and the agreements were voidable, and of no binding force as against her.

The plaintiff testified |>ositively that no such agreement for compensation was made, but that she paid defendant Breen a retainer of $100 when she employed him, and agreed that he should have $500 out of any amount recovered by her, whether by suit or settlement. The question whether the agreement was as claimed by the defendant, or as claimed by the plaintiff, was for the jury, and it is manifest that it found for the plaintiff. An attorney who seeks to avail himself of a contract made with his client, must establish affirmatively that it was made by the client, with full knowledge of all the material circumstances known to the attorney, and is in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him. (Whitehead v. Kennedy, 69 N. Y. 462; Tragman v. Littlefield, 45 N. Y. St. Repr. 673.)

When tested by this rule, it is obvious that the agreements and receipts relied upon by the defendants cannot stand, if the plaintiff’s testimony is believed. Besides, the plaintiff was an infant, and, therefore, the agreements and receipts were not binding upon her.

The defendants, however, claim that Breen’s services as a lawyer were so far necessary that the pilaintiff could make a- valid contract therefor, and her infancy was not a defense to such a contract. To sustain this claim, they cite the case of Munson v. WasJiband (31 Conn. 303). An examination of that case discloses that it is not a sufficient authority to uphold their claim. There is a clear distinction between that case and the case at bar-. In the Munson case, which was an' action somewhat similar to this, it was held that an action could be maintained to recover the value of the services of an attorney when they were necessary to protect the rights of an infant. That proposition is. not disputed here. But'the plaintiff claims that, although she was liable for services performed for her by an attorney when necessary for her protection, or the protection of her estate, yet, that she was liable only for the actual value of the services rendered, and was not bound by any contract she made as to the amount. There is nothing in the case cited inconsistent with this claim.

While an infant may bind himself for the value of necessaries purchased or furnished, he is not bound by the agreed price, if it is in excess of the actual value. (Baum v. Stone, 12 Wkly. Dig. 353.) Indeed, this case was tried upon the theory that the plaintiff was liable to Breen for the actual value of his services, and it was proved that they were worth from $100 to $250. It quite clearly appears, we think, that the jury allowed the defendants the value of Breen’s services as established by the proof.

Before proceeding further, it will be well to note that the court withdrew from the consideration of the jury all questions relating to the two $500 notes that were transferred by Breen to Williams for his check of $250 and the house and lot, upon which Breen secured a mortgage for $450, which he transferred to Williams. Still, the particulars of that transaction are before us as a part of the whole transaction between the parties, and disclose the extraordinary zeal and eagerness with ivliich the defendants sought to possess themselves of the property of the plaintiff, and the absence upon their part of any attempt at fairness in their dealings with her.

By an examination of the appeal book, it will be seen that after deducting from the amount of plaintiff’s notes the two $500 notes, a portion of which was invested in real estate, the value of Breen’s services, and the amount which the plaintiff testified that she received of Breen, there was then remaining in defendants’ hands an amount in excess of the verdict rendered. Hence, if the action could be maintained, the recovery was as favorable to the defendants as they could properly ask.

By reference to the complaint, it will be seen that so far as material to the question before us, the plaintiff alleged ownership of the notes; that Breen while acting in her behalf caused his own name to be inserted therein as payee, and that thereafter the defendants took possession of and converted them to their own use. ■ The defendants contend that the plaintiff authorized Breen to transfer these notes, and consequently that neither he nor Williams was guilty of conversion. The evidence was such as to justify the jury in finding that the defendant Breen transferred the notes in question without any authority whatever from the plaintiff, and that the pretended consent of plaintiff was improperly obtained by Breen. Besides, the plaintiff being an infant, her consent was invalid.

Under the circumstances of this case, we think the plaintiff was entitled to maintain this action. In Stafford v. Roof (9 Cow. 626), where an infant sold a horse belonging to him, but there was no proof that he delivered the horse with his own hand, and the vendee afterwards offered to sell the horse, it was held that trover would lie by the infant even before coming of age.

In Comstock v. Hier (73 N. Y. 269), where a note was indorsed for a special purpose by the plaintiff, and it was transferred by the makers to defendants, in payment of an antecedent debt, and defendants transferred it to a bona fide holder before due, for value, who collected it of the plaintiff, it was held that the plaintiff had an election either of bringing an action of trover for the conversion of the note, or for money had and received, to recover the money realized by defendant on sale thereof. The doctrine of this case was also recognized in Farnham v. Benedict (107 N. Y. 159, 173).

In Decker v. Mathews (12 N. Y. 313), it was held that the maker of a negotiable promissory note could maintain an action for its conversion against a person, who, before it had any legal inception, wrongfully negotiated it to a bona fide holder for value.

In Laverty v. Snethen (68 N. Y. 522), the plaintiff indorsed and delivered a promissory note belonging to him to the defendant, who gave a receipt therefor, stating that it was to be returned the next day, or the avails thereof. The plaintiff instructed the defendant not to let the note go out of his reach without receiving the money, and defendant delivered the note to a third person, under the promise by the latter that he would get it discounted, and return the money. He took the note away, and procured it to be discounted, but appropriated the avails. In an action for the conversion of the note,- it was held that the act of the defendant in permitting the note to go out of his possession was an unlawful interference therewith, and constituted a conversion. See, also, Carver v. Creque, 48 N. Y. 385; Develin v. Coleman, 50 id. 531; Powell v. Powell, 71 id. 71; Hynes v. Patterson, 95 id. 4; Metropolitan F. R. Co. v. Kneeland, 120 id. 134; Comley v. Dazian, 114 id. 161.)

Another claim of the appellants is that this action was prematurely brought because the plaintiff was an infant when it was commenced, and could not avoid her contracts until she arrived at full age. In considering this question, it must be remembered that the transaction, so far as it related to real estate, was withdrawn from the jury, so that the question whether she could avoid her contract relating to real estate before her majority, is not before us. The question upon this branch of- the case is whether the executory contract of the plaintiff could be avoided by her during her infancy. While there may not be entire harmony in the decisions upon this question, yet, we think, it must be regarded as settled in this State, that an executory contract relating to the personal property of an infant may be avoided by her during her infancy. (Bool v. Mix, 17 Wend. 119; Stafford v. Roof, 9 Cow. 626; Chapin v. Shafer, 49 N. Y. 407; Sparman v. Keim, 83 id. 245; Beardsley v. Hotchkiss, 96 id. 201, 211.)

The appellants also contend that the plaintiff could not recover in this action without tendering to the defendant Breen all she received. To this there are two answers: First, that the defendants were permitted on the trial to prove all that had been advanced the plaintiff, and the jury deducted that amount from the value of the notes other than those delivered to Williams for real estate ; and, seco7id, all the. money that had been paid to the plaintiff by Breen had been expended or squandered by her during her infancy. Under these circumstances, the defendants had no moral or legal right to require the plaintiff to restore the money received by her, as they were allowed the full benefit of the amount thus paid, and the plaintiff could not make such restoration. (Green v. Green, 69 N. Y. 553.)

Having now considered all the questions raised by the appellants relating to the plaintiff’s right to maintain this action, and having reached the conclusion that it can be maintained, and that the evidence was sufficient to sustain the recovery herein, the exceptions taken upon the trial to the rulings of the court on the reception and rejection of evidence, and to its instructions to the jury remain to be considered.

At the close of the charge, the appellants’ counsel stated: “ I think your honor has already charged it, that if the jury find that the notes were transí erred to Mr. Williams with the assent, or by the direction, of the plaintiff, this action for conversion does not lie against Williams.” To which the court replied: “Yes, but I charge at the same time that if she was an infant, her assent to it would not confer authority because she had no power to authorize it, being an infant.” Whereupon the defendants’ counsel said : “ I desire to except to so much of your Honor’s statement as is to the effect that her infancy would prevent • her giving an assent, which would defeat the action of trover. The court. — You may have that exception.” The defendants also excepted “ to the submission of the question of the conversion of the one-thonsand-dollar note to the jury, and also to the submission of the question of the conversion of the five-hundred-dollar note which was purchased April 15.” The questions already considered ai-e the only ones. raised by these exceptions. As we have already discussed them, and arrived at a conclusion adverse to the appellants, no further consideration of them is required.

Before the trial of this action, and subsequent to the transfer of the notes in question, the defendant Breen had been examined in proceedings supplemental to execution. The examination was in the absence of the defendant Williams. The testimony thus taken was offered in evidence. It was objected to on behalf of the defendant Williams as incompetent and hearsay. TJpon the questions raised by this objection, the court ruled as follows: “ The court.— I hold that such part of said examination as tends to rebut the receipts acknowledging payment by Breen to plaintiff is competent. To that extent I overrule the objection.” This evidence -was offered after the defendants had introduced the receipts, and tended to corroborate the plaintiff’s claim that Breen had not paid her the amount mentioned in the receipts. It was admissible against Breen, but not as against the defendant Williams. (Scofield v. Spaulding, 54 Hun, 523.) In that case, we examined this question quite fully, and, therefore, deem any further examination of it by us quite unnecessary.

There are other questions to which attention has been called, but as the judgment must be reversed for the error already pointed out, and as it is improbable that those questions will arise upon another trial, no good purpose can be served by a discussion of them at this time.

As a majority of the court are of the opinion that the judgment should be affirmed as to the defendant Breen, and reversed on the exceptions, and a new trial granted, with costs to abide the event as tc the defendant Williams, it follows that the judgment as to the defendant Breen and the order denying his motion for a new trial should be affirmed, with costs, and that the judgment as to the defendant Williams, and the order denying his motion for a new trial should be reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Hardin, R. J., and Merwin, J., concurred.

Judgment and order, as to defendant Williams, reversed on the exceptions and a new trial ordered, with costs tc abide the event.


author: Martin, J.:'

text:
    London and Lancashire Fire Insurance Company, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.

      Subrogation of insurance companies to the rights of the owner of insured property — liability of railroad companies as common carriers and as warehousemen distinguished — goods destroyed by fire, in a freight house, while cmaiting transportation— cktty of loading freight — absence of special contract limiting a carrier’s common-law liability.

    "When goods in the hands of a common carrier, insured by the owner, are lost or injured under circumstances rendering the carrier liable to the owner, the insurer, who pays the loss to the owner, is entitled to be subrogated to the rights and remedies of the owner against the carrier.
    A railroad company’s liability as an insurer, in the capacity of a common carrier, commences as soon as goods have been delivered to and accepted by it solely for transportation, although the goods may not be put immediately in transit, but are at first, for the railroad company’s own convenience, deposited in its warehouse.
    If, however, a railroad company receives goods in its warehouse to be forwarded, but not until it shall have received orders from the owner, or the happening of a certain even'', or until something further is done to the goods to prepare them ■ for transportation, the delivery to the railroad company is not as a common carrier, but only as a warehouseman, and it is only answrerable in the latter capacity if the goods are destroyed by fire while in the warehouse, and before such orders have been received or such event has happened.
    In an action brought by an insurance company, as the assignee of the owner of a quantity of hay and straw insured by it, which had been destroyed by fire in a railroad freight house, and on which it had paid the insurance, against the railroad company to recover for the loss, evidence that the sole purpose of the delivery of the goods to the defendant was for as early transportation over its road as could be made in the course of its business; that there was such a delivery and relinquishment of control over the property to the defendant as authorized it to transport the goods without further directions from the owner, and that the goods were detained in the freight house for the defendant’s own convenience, to enable it to procure cars for their transportation, and not through any act or omission of the owner, warrants the submission to the jury of the question whether the defendant held the goods, at the time of the loss, as a common carrier.

      Semble, that the duty of loading freight, delivered to and accepted by a railroad company for transportation over its road, rests primarily upon the company.
    An established rule of the defendant railroad company required all shippers of hay, straw, or other heavy freight, to unload it from the vehicles upon which it was delivered into the freight house at the station in question, when delivered there, and afterwards to load it upon cars furnished by the company; the goods in suit consisted of hay and straw.

      Held, that if this rule was of any binding force, it at most only required shippers of the kinds of freight covered by it to furnish the necessary help to load the freight, and that it did not change the company’s relation to property delivered to and accepted by it for the sole purpose of being carried over its road.
    In the absence of evidence to the contrary, it is to be assumed that property accepted by a carrier for transportation is taken under the responsibility cast upon it by the common law, except as modified by statute; and if lost under circumstances which render the carrier liable by the general rule of law, it must respond, unless it can show that there was a special acceptance equivalent to a contract which exempts it from the ordinary liability of common carriers.
    A carrier, who fails to give a receipt, or to make any other contract for the shipment of property, will not be absolved from liability for its destruction by evidence that the owner or his agent previously knew of conditions in the shipping bills or receipts usually given, which would discharge the carrier from liability for the loss sustained.
    Appeal by tlie defendant, the Rome, Watertown and Ogdensburgli Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Jefferson county on the 9th day of April, 1888, upon the verdict of a jury rendered at the Jefferson Circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the trial judge.

      JD. G. Gh'iffin, for the appellant.

      A. II. Sawyer, for the respondent.
   Martin, J.:'

This action was to recover for the loss of a large quantity of hay. and straw destroyed by fire, which occurred April 3, 1885, at the defendant’s freight house at Cape Yincent, N. Y. Prior to that time, William J. Grant and Orlando W. Loomis had caused to be delivered at the defendant’s freight house and a shed adjoining it the hay and straw in question, awaiting shipment over the defendant’s road.

The owners had procured policies of insurance thereon with plaintiff and other insurance companies, which, after the fire, paid the amount of the insurance to Grant and Loomis, and took from them an assignment to the plaintiff of all their interest in any claim which they had against the defendant, occasioned by the destruction of the property. The present action is based upon the claims thus assigned to the plaintiff.

The grounds upon which the plaintiff claimed the right to recover tbe value of tbe property thus destroyed were twofold: (1) Tbat tbe property was in tbe possession of tbe defendant as a common carrier at tbe time of its destruction; (2) tbat its loss was occasioned by tbe defendant’s negligence. The defendant denied tbat the property was in its possession as a common carrier, and also denied tbat such loss was occasioned by its negligence.

On tbe trial, tbe court submitted to tbe jury not only tbe general question of the defendant’s liability, but also whether tbe fire was caused by the defendant’s negligence, and whether tbe bay in question was held by it at tbe time of tbe fire as a common carrier, or as a warehouseman. The jury found a general verdict in favor of the plaintiff for $10,521.17, and in answer' to tbe question submitted, it found tbat tbe fire was not caused by tbe defendant’s negligence, but tbat it held tbe bay as a common carrier at tbe time. Thus tbe verdict discloses that tbe defendant was held liable upon tbe sole ground tbat it was a common carrier, and hence an insurer of the property in its possession.

It seems to be settled tbat when goods in tbe bands of a common carrier are insured by tbe owner and lost or injured, under circumstances rendering tbe carrier liable to tbe owner, tbe insurer who pays tbe loss to tbe owners is entitled to be subrogated to tbe rights and remedies of tbe owner against tbe carrier. (Fayerweather v. Phenix Ins. Co., 118 N. Y. 324, 327; Hall v. Railroad Co., 13 Wall. 367; Connecticut F. Ins. Co. v. Erie Railway Co., 73 N. Y. 399; Platt v. Richmond, Y. R. & C. R. R. Co., 108 id. 363; Phœnix Ins. Co. v. Erie Transportation Co., 117 U. S. 312.) Nor does tbe fact tbat tbe plaintiff’s assignors were to receive a portion of tbe sum collected of tbe defendant in any way interfere with tbe plaintiff’s right of recovery. (Durgin v. Ireland, 14 N. Y. 322; Gardner v. Barden, 34 id. 433, 436.) Indeed, tbe right of tbe plaintiff to maintain this action does not seem to be denied by tbe defendant. Hence, it must be assumed tbat tbe action was properly brought by tbe plaintiff. Therefore, tbe first and most important question to be determined upon this appeal is, whether tbe evidence was sufficient to justify tbe finding tbat tbe bay destroyed was in tbe defendant’s possession as a common carrier.

Tbat a common carrier is responsible for tbe loss of goods in bis possession as such, irrespective of any question of negligence or fault on his part, if the loss does not occur by the act of God or the public enemies, and that with these exceptions he is an insurer against all losses, is a principle of the law of bailments so well established as to render the citation of authorities unnecessary. Hence, the question with which we have to deal is not as to the extent and character of the liability of a common carrier, but whether the goods destroyed were in the defendant’s possession as such.

The defendant was both a common carrier and warehouseman. If the delivery of this hay and straw was made to the defendant for as early transportation as could be made in the course of its business, subject only to such delays as might necessarily occur from awaiting the departure of trains, the lack of sufficient cars, the performance of prior engagements, or other causes existing in the business, of the defendant, it became, the moment the delivery was made, a common carrier as to it, and its responsibility as such at once attached! The general rule is that the liability of a common carrier commences as soon as the goods have been delivered to and accepted by him solely for transportation, although they may not be put immediately in transit, but are at first for liis own convenience temporarily deposited in his warehouse. In such cases the deposit is a mere accessory to the carriage, and does not postpone his liability as common carrier to the time when the goods shall actually be put in motion towards their place of destination. Still, if he receives the goods in his warehouse to be forwarded, but not until he shall have received orders from the owners, or the happening of a certain event, or until something further is done to the goods to prepare them for transportation, the delivery to him is not as a common carrier but only as a warehouseman, and he is only answerable in the latter capacity if the goods are destroyed while in the warehouse by fire and before such orders have been received, or such event has happened. Hutchinson on Carriers, § 89; Blossom v. Griffin, 13 N. Y. 569, 572; Wade v. Wheeler, 3 Lans. 201, 204; S. C., 47 N. Y. 658; Ladue v. Griffith, 25 id. 364, 367; Read v. Spaulding, 30 id. 630; Coyle v. Western Railroad Corporation, 47 Barb. 152; Angell on Carriers, § 134; O’Neill v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 138; Rogers v. Wheeler, 52 id. 262.

If, therefore, the evidence was such as to justify the jury in finding that the property in question was deposited in the defendant’s warehouse, and left with it for the purpose of being transported over its road without further orders from the plaintiff’s assignors, the jury was justified in finding that the goods were in the possession of the defendant as a common carrier and not as warehouseman.

On the other hand, if the evidence showed conclusively that the property was to remain in the possession of the defendant until it should receive orders from the then owners to ship the same, the finding of the jury that the property was in the defendant’s possession as a common carrier cannot be upheld.

This leads to an examination of the facts bearing upon the character and extent of the delivery to the defendant by the plaintiff’s assignors. During the autumn and winter of 1884-5, they were engaged in buying hay and straw from farmers, baling and shipping it over defendant’s road to an eastern market for sale. Their purchases during that season amounted to more than 1,800 tons, of which all except that destroyed by fire had been carried over the defendant’s road. All this hay and straw had been delivered at the defendant’s freight house for transportation by it, including the portion thus destroyed.

An established rule of the defendant required all shippers of hay, straw, lumber or other heavy freight to unload it from the wagons or sleighs upon which it was delivered into the freight house at the station, when delivered there, and afterwards to load it upon cars furnished by the defendant.

During that season one Reff was employed by the plaintiff’s assignors to receive the hay purchased by them as it was delivered by the farmers at the defendant’s station at Cape Yincent, to take the weight, and when cars were there for that purpose to load it directly from the wagons or sleighs upon which it was delivered, into the cars, and when cars were not furnished to deposit it in the freight house where the defendant’s agent directed, until cars were furnished by the defendant, and then to load it therein.

The defendant foiled to furnish sufficient cars for the transportation of the hay. Application was frequently made to the defendant’s agent at Cape Yincent, and to its superintendent of transportation, for additional cars, so that the hay might be promptly shipped. Yet, notwithstanding the efforts of the plaintiff’s assignors to obtain necessary cars for that purpose, they were not furnished in sufficient numbers to enable them to ship the hay as fast as it was delivered, and it accumulated until the inclosed portion of the defendant’s freight house in which it had been placed for shipment, became filled, when Mr. Reff, acting for the plaintiff’s assignors,, notified the farmers who were delivering the hay, not to deliver any more, as there was no more room for it. Thereupon the defendant’s, agent, in whose presence this direction was given, countermanded it and directed the farmers to continue drawing their hay, and stated that he would find room for it. In pursuance of this order the farmers continued to deliver their hay at that station, and under the direction of the defendant’s agent, it was placed in an open shed which adjoined or formed a part of the defendant’s freight house, where it. remained until it was destroyed.

During all the time after the commencement of the delivery of this hay until it was destroyed, the defendant had a general order from the plaintiff’s assignors to ship their hay as fast as loaded upon the cars, to certain firms in the city of New York, unless other special orders were given. In pursuance of this order, the defendant from time to time during the season, shipped all that was loaded in their absence.

Upon the hay shipped the freight was paid by the consignee. No receipt, shipping bill or bill of lading was ever delivered by the defendant to plaintiff’s assignors, for any of the hay loaded or forwarded in their absence under such general orders. None of the-bales of hay were marked with the name of the consignee. No-single bales were shipped, but all the hay was shipped by carloads, and the defendant marked the cars with the name of the consignee. "While defendant’s agent testified that he had forwarded hay in the-absence of the plaintiff’s assignors, and signed shipping bills in their names for bis bookkeeper to make entries from, yet there was. no proof that that fact ever came to their knowledge, or that they knew the contents of the shipping bills or receipts, or the conditions, printed thereon.

The witness Reff, who was employed by the plaintiff’s assignors to-load this hay, testified that he had loaded as many as nine cars in a day, and could have loaded as many any day if they had been furnished, but that the defendant did not furnish inore than four or five cam in any one day. He also testified tliat he was directed by them to load cars as fast as they could be obtained; that he did so during the entire season, and that there was never an occasion when cars were not loaded as soon as they were switched down to the freight house for that purpose. Upon evidence sufficient to establish the foregoing facts, the question whether the defendant held the hay in controversy as a common carrier, was submitted to the jury.

The facts, we think, render it quite manifest that the sole purpose of the delivery of the hay to the defendant was for as early transportation over its railroad as could be made in the course of its business, and that there was such a delivery and relinquishment of all control over the property to the defendant as authorized it to transport the property without any further direction from plaintiff’s assignors. It is equally manifest that this hay was detained at the defendant’s freight house for its own convenience, to enable it to procure cars for its transportation, and that the delay in forwarding it was not occasioned by any omission of the plaintiff’s assignors to direct where it should be shipped, or to load it upon the cars as fast as they were furnished for that purpose, nor was it detained in furtherance of any desire or direction, or for the convenience of the plaintiff’s assignors. Nothing further was required to prepare it for transportation. No further orders were necessary to enable the defendant to forward it. The only act the plaintiffs assignors were to perform was required by the rules. of the defendant company, ■and for this they had fully provided by employing Reff, who was prepared to load the hay whenever cars were furnished by the defendant for that purpose.

"We think the duty of loading freight delivered to and accepted by a railroad company for transportation over its road, rests primarily upon the company. In this case, however, the defendant had adopted a rule by which the shippers of heavy and bulky freight were required to load it upon the cars. The binding force of such a rule may, perhaps, be doubted. But be that as it may, the most that can be claimed for the rule under consideration is, that by reason of its adoption, the shippers of that particular kind of freight were required to furnish the necessary help .to load it. Obviously the purpose of this rule was not to change the company’s relation to the property delivered to and accepted by it for the sole purpose of being carried over its road. If such had been its purpose, it would have plainly stated that such freight would not be received or accepted for transportation until it was loaded on the cars. We think it is quite apparent that this rule was intended at most to impose upon the shippers of such freight the burden of loading it,, and thus avoid the necessity, on the part of the company, of keeping a large force of employees for that purpose. The time, place and manner of loading, and the persons performing that service were clearly under the direction and control of the defendant.

Under the facts and circumstances disclosed by the evidence in this case, we think the court was justified in submitting to the jury the question whether at the time of the fire the defendant was in possession of the property destroyed as a common carrier, and that the verdict of the jury should be upheld.

¥e have examined the portion of the charge of the trial court to which the appellant has called our attention in his brief, but have-found no error which requires us to disturb the judgment.

■ The only other ground upon which the defendant seeks to reverse-the judgment is, that there was a special contract between the plaintiff’s assignors and the appellant by which its liability as a common carrier was so far limited as not to include a loss by fire. It is not contended that there was any express contract of that character, either oral or written, nor that any shipping bill, receipt or shipping orders for this property were delivered to the plaintiff’s assignors,, or by them to the defendant, or came to their knowledge.

The ground of the appellant’s contention seems to be that this, court should assume, although the question is here presented for the first time, that if the hay was accepted by the defendant as a common carrier, it was accepted under a special contract to be implied from its general course of dealing, in that it usually delivered to-shippers receipts which contained a provision to the effect that it, would not be responsible for damages occasioned by delays from storms, accidents or unavoidable causes, or by. decay or injury of perishable articles, or from injury to property produced by frosts, heat or the elements, or from leakage occasioned from any defects, in packages.

"We do not see how this contention can be sustained. In Park v. Preston (108 N. Y. 434), it was held that in the absence of evidence to the contrary, it is to be assumed that property accepted by a carrier for transportation, is taken under the responsibility cast Upon him by common law, except as modified by statute, and if lost under circumstances which render the carrier liable by the general rule of law he must respond unless he can show that there was a Special acceptance equivalent to a contract which exempts him from the ordinary liability of common carriers, citing Dorr v. New Jersey Steam Navigation Co. (11 N. Y. 485); Blossom v. Dodd (43 id. 261); Madan v. Sherard (73 id. 330).

Note. The rest of the cases of this term, will he found in the next volume (69) Hun — [Rep.

Again in Reed v. Fargo (7 N. Y. Supp. 185; 26 N. Y. St. Repr. 587) it was held that a carrier who fails to give a receipt, or to make any other contract for the shipment of property, will not be absolved from liability for its destruction by evidence that the plaintiff or his agent previously knew of conditions in the shipping bills or receipts usually given, which would discharge the defendant from liability for the loss sustained. (See Pearsall v. W. U. T. Co., 124 N. Y. 256; Dorr v. New Jersey Steam Navigation Co., 11 id. 485; Kirkland v. Dinsmore, 62 id. 171, 175; Blossom v. Dodd, 43 id. 264.)

~We find in this case no sufficient evidence of any such special ■acceptance or contract as to the property in question, as would ■exempt the defendant from the ordinary liabilities of a common ■carrier. We- think the cases cited are decisive of this question, and require us to hold that the defendant’s liability as a common carrier was not limited by contract or otherwise, and that the verdict of the jury should be upheld.

This conclusion renders it unnecessary to determine whether if such a receipt had been delivered to the plaintiff’s assignors, it would .have exempted the defendant from liability for this loss.

The judgment and order must be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


text:
    The Phœnix Bridge Company, Appellant, v. The Keystone Bridge Company, Respondent.
   Judgment affirmed, -with costs, on opinion of Mr. Justice Beach, in court below,


author: Per Curiam:

text:
    James Crawford, Trustee, etc., Appellant, v. Alfred B. Price, Respondent.
   Appeal ordered stricken from calendar.

Opinion

Per Curiam:

It appearing that the case has not been certified; and the papers not showing that the parties have stipulated in writing that the papers are copies of the judgment roll and case this appeal was improperly upon the calendar, ana should be stricken therefrom.


text:
    Cornelius L. Cooke, Respondent, v. The Phœnix Bridge Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Frederick A. Haight, Appellant, v. Watson B. Dickerman, as President, etc., Respondent, Impleaded, etc.
   Judgment affirmed, with costs, on opinion written on appeal from order vacating injunction.


text:
    Rufus O. Parker, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Order affirmed, without opinion.


author: Van Brunt, P. J.:

text:
    Martha E. Clark, Respondent, v. Frederick K. Clark, Appellant.
   Order denying motion to strike out, etc., affirmed, with ten dollars costs and disbursements.

Opinion by

Van Brunt, P. J.:

It is claimed that the judgment entered herein exceeds the prayer and allegations of the complaint. An inspection of the complaint, however, shows that this claim is entirely unfounded, and that all the relief granted in the decree was prayed for. It is further urged that this action was brought to quiet title and that certain allegations necessary to such an action were not contained in the complaint in question. It may be doubtful whether any such question can be raised upon this appeal. If the allegations in the complaint were insufficient it was the duty of the defendant to demur to the same. But the action is not founded upon any such theory. It was a bill to have adjudged null and void certain instruments which had been given by the plaintiff to the defendant, and to enjoin him from attempting to assert rights by reason of such instruments, and that is all that was adjudicated. The order appealed from denying the motion to strike out portions of the decree should be affirmed with ten dollars costs and disbursements. The appeal from the order denying the motion to resettle said order is also equally without merit. The question as to the right of the appellant to have the date of the decree changed to the time when it was made, filed and entered, does not possess any greater merit as the decree was dated upon the day upon which the court directed the judgment to be entered. This order, therefore, should also be affirmed, with ten dollars costs and disbursements.


text:
    Julius H. Caryl v. F. X. Stafford and others.
   Motion dismissed. (Mem.)


text:
    William H. Daniells and others v. F. X. Stafford and others.
   Motion dismissed. (Mem.)


text:
    Philo T. Ruggles v. F. X. Stafford and others.
   Motion dismissed. (Mem.)


text:
    John P. Paulison, Respondent, v. Benjamin Gates and others, Appellants.
   Motion granted, with ten dollars costs.


text:
    The Dueber Watchcase Manufacturing Company, Respondent, v. Joseph Fahys and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. ‘


text:
    George Boll, Administrator, etc., Plaintiff, v. The Steam Gauge and Lantern Company, Defendant.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit, on the authority of Pauley, against the same defendant (131 N. Y. 90).


text:
    Electa A. Dyke, Respondent, v. William Spargus and others, Appellants.
   Judgment appealed from affirmed, with costs.


text:
    Henry J. Bowden, Respondent, v. James C. Fargo, as President of the Merchants’ Despatch Transportation Company, Appellant.
   Judgment of the County Court of Monroe county appealed from affirmed. Dwight; P. J., not voting.


text:
    Belle D. Wilson, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Interlocutory judgment appealed from affirmed, with costs, with leave to the plaintiff to amend her complaint in twenty days on payment of the costs of the demurrer and of this appeal.


text:
    In the Matter of the Probate of the Last Will and Testament of Samuel Wilcox, Deceased.
   Decree of the surrogate of Monroe county admitting the will to probate affirmed, with costs to the respondent, payable out oi the estate.


text:
    Clara Whiteman Gibbs, Administratrix, etc., Respondent, v. The Merchants and Farmers National Bank of Dansville, N. Y., Appellant.
   Order appealed from affirmed, with ten dollars ccfets and disbursements.


text:
    George C. Buell and others, Respondents, v. John W. Sickly, Jr., Appellant.
   Order apv pealed from affirmed, with ten dollars costs and disbursements.


text:
    Frank P. Pease and another, Respondents, v. Anna De Etta Pease and another, Appellants, and two other cases.
   Order in each case appealed from affirmed, with ten dollars costs of one case, and the disbursements in, the three cases.


text:
    Frank Hilliard, Respondent, v. The Mottville Paper Company (Limited), Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Oliver Crothers and another, Respondents, v. Union Brewing Company and others, Appellants.
   Judgment appealed from affirmed.


text:
    John B. Salisbury and another, Respondents, v. George Mott, Appellant.
   Judgment of Ontario County Court appealed from affirmed, ■with .costs.


text:
    Henry R. East, Appellant, v. The Cayuga Lake Ice Line, Respondent.
   Motion for a reargument denied.


text:
    Susan B. Anthony and another, Appellants, v. The American Glucose Company, Respondent.
   Motion to amend order granted.


text:
    William B. Colvin, Respondent, v. The United States Mutual Accident Association of New York City, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    William H. Ordway, Respondent, v. Village of Canisteo, Appellant.
   Motion for reargument or for leave to appeal to the Court of Appeals denied.


text:
    Joseph Kress, Respondent, v. The East Side Savings Bank, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Superintendent of the Poor of County of Cattaraugus v. The Superintendent of the Poor of the County of Erie.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    William T. Long v. William Long.
   Motion for reargument denied.


text:
    Bridget McDonald, as Administratrix, etc., Respondent, v. New York Central and Hudson River Railroad, Appellant.
   Motion to amend order granted.


text:
    Thomas P. McCormick, Respondent, v. John McCormick, Jr., Appellant, Impleaded, etc.
   Leave granted to defendant to make and serve a proposed case and exceptions on appeal within fifteen days on payment of ten dollars costs of opposing this motion.


text:
    Richard Foran v. New York Central and Hudson River Railroad Company.
   Motion to amend memorandum of decision denied.


text:
    Frances A. Dyke v. William Long, Survivor.
   Motion for reargument denied.