author: By the Court.—Freedman, J.

text:
    CORA MOFFAT, et al., Appellants, v. JAMES HENDERSON, Respondent.

      Water-rents—landlord and tenant—rule as to “ extra rates," between.

    One of the objects and effects of Laws 1870, ch. 883, § 13, and Laws 1873, ch. 335, § 78, is to make the expense of placing a water-meter upon any of the premises specified in said acts in New York City, and the charge for extra consumption of Croton water over and above the quantity covered by the regular building rate, a lien upon the land.
    There is nothing in said acts or any other statutes, which makes the actual consumer of the extra water personally liable for the water-rates.
    The lien aforesaid which, with the power to cut off the water supply, is the only means of enforcing payment of any such extra water-rent, is given by virtue of the taxing power of the state, as in the case of regular water-rents, by reason of the benefit accruing to the property on which it is imposed. And the rule as between lessor and lessee is, that the lessee is not bound to pay either the extra or regular water-rate except upon covenant, or unless there are circumstances which raise an implied promise so to do.

      Decided March 24, 1884.
    ' - 1 Where, at the time of the making of the lease, such a meter is upon the premises, and the lease contains a covenant by the lessee to pay “ the regular annual rent or charge .... for Croton water,” and. there is no evidence that the lease does not constitute the whole of the contract between the parties, the lessee having expressly obligated himself to pay a part of the water rate, the implication is, that he was not to pay the other part. And this rule will obtain between the purchaser of the premises from the original lessor, and the assignee of the lessee.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal by plaintiffs from judgment in favor of defendant entered upon findings of a judge, that complaint be dismissed with costs.
    By a lease under seal, dated July 1,1878, the premises, Nos. 114, 116, 118 and 120 West 46th street, in the city of New York, with the stables and office fixtures thereon, and the appurtenances thereof, were leased to one Stout by Bridget D. Fitzpatrick, as executrix of the will of Philip Fitzpatrick, deceased, and one Anne M. Cary, for a term, ending May 1, 1883.
    On December 31, 1878, all the lessee’s interest was by him assigned to the defendant, and the latter went into possession and carried on the livery stable business. At or about the same time the lessors conveyed the fee of said premises, and assigned the lease between them, and Stout, and all their interest therein, to the plaintiffs.
    The action is brought by the plaintiffs to recover the sum of $182.40, which they were compelled to pay for Croton water, which, during the year 1879, the defendant had used in his business on the demised premises over and above the regular rate, and the quantity of which had been ascertained through a water meter.

      Joseph A. Welsh, for appellants.
    I. The bills for the water supplied to the defendant, and used by him in his livery stable business, were his own personal debt.
    However vague the original provisions concerning extra water-rents may have been, the act of 1870 re-enacted in the charter of 1873, placed the supply of water for business uses upon a definite footing, and made that supply a plain sale of water to the consumer by measure (Laws 1870, ch. 383, § 13 ; Laws 1873, ch. 335, § 73 ; Lageman v. Kleppenburg, 2 E. D. S. 126 ; Graham v. Dunigan, 6 Duer, 629 ; S. C., 2 Bosw. 516).
    II. The defendant obtained this water, of the value of $166.85, upon the credit of the plaintiffs. It is clear that the object of the statute, in making these bills a lien on the premises, is to create a substantial security for their payment. The obtaining the water by these means, and omitting to pay for it, and thus subjecting the plaintiffs’ property to liability for it, creates an implied request to them to make the payment, and promise to repay them (Scoles v. Coleman, Wright, 92; Chitty Cont. 6th ed. 594).
    III. The action may be regarded as for money paid for defendant’s use, upon the implied request resulting from the compulsion caused by his conduct (1 Chitty Pl. 351). “It is clear that if money be paid by a person in consequence of a legal liability, to which he is subject, but from which a third person ought to have relieved him by paying the amount, a request will be implied” (Chitty Cont. 6th ed. 594). “Where money has been paid at the request of the defendant, either express or implied, it may be., recovered as money paid to the use of the defendant, though paid in satisfaction of a claim against the defendant which could not be enforced at law.” . . . “Compulsory payments.— But there are instances in which, though the defendant did not (in fact) request the plaintiff to make the payment for him, yet the law will imply such request, and admit no evidence to the contrary. Thus, where the plaintiff is compelled to make a payment, &c.” .... “ Where a party is in a situation where he may be compelled by law to pay a sum of money, although he be not actually compelled to do so, and he pays it accordingly, the action will lie.” To maintain this form of action, no privity of contract, whether of tenancy or otherwise, is necessary. In fact, in nearly all the numerous cases of this class no contract relation existed (Hunt v. Amidon, 4 Hill, 345). Neither is it necessary that the city may sue the defendant personally for the price of the water; although in fact it could. He had the value of the bills and well knew that he was drawing the plaintiffs into a suretyship for them, and his acts imply a request to. them to pay (Scoles v. Coleman, Wright, 92; Brittain v. Lloyd, 14 M. & W. 762; Lewis v. Campbell, 8 M., G. & S. [8 C. B.] 541 ; Grissel v. Robinson, 1 Scott, 329 ; Pawle v. Gunn, 4 Bing. N. C. 445 ; Scholey v. Mumford, 60 N. Y. 501; Graves v. Harwood, 9 Barb. 477; Peck v. Ingersoll, 3 Seld. 528; Wells v. Porter, 7 Wend. 119 ; St. Nicholas Ins. Co. v. Howe, 7 Bosw. 450 ; Exall v. Partridge, 8 T. R. 308 ; Dawson v. Linton, 5 B.& Ald. 521; Brown v. Hodgson, 4 Taunt. 189 ; Pownall v. Ferrand, 6 B. & Cr. 439; Jenkins v. Tucker, 1 H. Bl. 90 ; Gleason v. Dyke, 22 Pick. 390; Nichols v. Buckman, 117 Mass. 488 ; Peconic Bk. v. Smiley, 27 Me. 229 ; Bailey v. Bussing, 28 Conn. 455; Post v. Gilbert, 44 Id. 9).
    IY. These bills were not incurred by defendant in the character of a tenant. The city looks, not to a tenant, but to a “consumer,” “ occupant,” “ receiver and user” of the water. It is immaterial how the consumer gets upon the property. He may be a trespasser; and yet, if being on the property, he has the opportunity to cause damage to the owner in this manner, and does it, he is liable.
    Y. Neither are “ meter charges ” taxes under the acts, and for that reason required to be asumed by a tenant. Nor have they any of the characteristics of a tax. They are not imposed or assessed on property; are not predicated on its value ; are not for a prescribed or definite amount, and are not periodical or even certain. They are personal, fluctuating, irregular, indefinite and uncertain.
    YI. -Considered as liens, these meter bills differ wholly from the “regular rents” with respect to the propriety of stipulating therefor between a landlord and a tena'nt.
    ‘1 Regular rents ’ ’ are prescribed, definite and regular assessments imposed directly upon all properties upon certain streets, entirely independent of the actual use of the Croton water, or even of the occupancy of the property. “ Meter charges,” as has just been stated, are primarily, only items of personal business expense, and, secondarily, a lien for security for their collection. The regular rent, therefore, attaches irrespectively of the existence of any lease and concerns the owner only, unless it be assumed by a tenant as part of his rent. On the other hand, the meter charges do not concern the owner of leased property at all, save as the statute makes his property a security therefor, and no stipulation in the lease could change his position in that regard.
    VII. The inserting in the lease of a covenant by the tenant to pay the ‘6 regular rents,” does not imply that he is not to pay his meter bills. As already shown, the two subjects are not of the same class, and therefore no implication whatever arises from the naming of one of them.

      James Henderson and S. Jones, for respondents.
    This action, if sustainable at all, can only be sustained on the theory of money paid by plaintiffs for the use of defendant at his special instance and request. A request, express or implied, is essential. No express request is shown. To raise an implied request, two requisites must concur: 1st. The claim paid must be one for the satisfaction of which the property of the one in favor of whom the request is to be implied can be lawfully taken without any fault, negligence or want of reasonable care on his part. 2d. It must be one which, as between the two between whom the request is to be implied, the one against whom the request is to be implied is bound to pay in the first instance. Thus putting the parties in the position of principal and surety, the one against whom the request is implied being the principal and the one in whose favor it is implied being the surety.
    None of the provisions of law make meter charges, liens or charges on real estate. When we read the acts of 1870 and 1873, we are at once struck with the use of the words “as now provided by law.” This at once leads one’s attention to ascertain what provisions have been made by law whereby these charges are made a lien or charge. Have plaintiffs brought themselves within the first requisite ? The act of 1870, chap. 137, the act of 1853, either as it originally stood or as amended by the act of 1854, do not. Thus we are thrown back to the act of 1849. That act in • terms only makes “regular rents” a charge and lien. It has been held that under this act meter charges are not liens (Treadwell v. Van Schaick, 30 Barb. 444). Consequently there is no provision of law under which these charges are liens. Plaintiff’s property then was not subject to be taken for these charges, nor are they liable therefor ; and consequently they do not bring themselves within the first requisite.
    If these charges are liens they are so by virtue of the taxing power of the state. And as such the lessor and not the lessee is bound to pay them (Taylor's Landlord and Tenant, ed. 1844,161; McAdam's Landlord and Tenant, 1884, 161-162). The lessee in this case has not covenanted to pay them.
    The law assumes that parties enter into contracts in reference to the law, and that they know the law.
    If these charges are liens they are so by the same sections by which the regular rents are ; the lessee having expressly undertaken to pay a part of the liens, it is implied that", he is not to pay the other part on the principle of “ expressio unius, exclusio alteriusB

   By the Court.—Freedman, J.

This action is brought by the plaintiffs to recover the sum of $182.40, paid by them under legal compulsion to relieve their real estate from a lien for extra Croton water, which the defendant, while he occupied towards them the relation of a lessee, had consumed in his business as a livery stable keeper carried on upon their premises.

Upon a re-examination of all I said in Hill v. Thompson (since affirmed by the general term). I adhere to the opinion that one of the objects and effects of section 13 of chapter 383 of the Laws of 1870,- and of section 73 of chapter 335 of the Laws of 1873, was and is to make the expense of the placing of a water meter in or upon any of "the premises specified in the said acts, and the charge for extra consumption of Croton water over and above the quantity covered by the regular building rate, a lien upon the land. The words “as now provided by law ” make the lien thus given one of the same character and nature as the lien created by prior legislation for regular water rents. It is also to be enforced in like manner. But there is nothing in said acts, or either of them, or in any other statute, which makes the actual consumer of the extra water personally liable for the meter rates. If such were the case, it would be a grave question whether the land of the lessor could be constitutionally subjected to a lien for the payment of the personal debt of the lessee. But it is not the case. ' The only means of enforcing payment of any extra water rent which exist, consist in the provision for a lien for the a mount due on the premises to which the water is furnished, which lien may be enforced by a sale of the premises, and in the power to cut off the supply of water in case of nonpayment. The lien is therefore given under and by virtue of the taxing power of the state just as it is given for the regular water rents, by reason of the benefit accruing to the property on which it is imposed.

This being so, the rule as between lessor and lessee is, that the lessee is no more bound to pay the extra water-rate than he is bound to pay the regular rate, unless he has covenanted to pay it or unless there are circumstances which raise an implied promise on his part in favor of the lessor. That, in the absence of a covenant to pay, the lessee is not liable to pay the regular rate, or any tax or assessment upon the premises, is a proposition so firmly established as to render it unnecessary to cite authorities.

As between the parties to this action it has already been adjudged in a former action (ante, p. 165) that the defendant is not liable for extra water consumed by him by reason of any covenant in the lease. It therefore remains to be seen whether upon the special facts of the case a promise to pay can be implied.

True, in the year 1879, there was consumed on plaintiff’s premises by the defendant a certain quantity of Croton water which was measured through a meter, and the charge for which over and above the regular rate amounted to $166.85. This charge was not paid, and was returned by the Department of Public Works to the office of the Clerk of Arrears in the Finance Department, and in due course of time and procedure became a lien upon the premises of the plaintiffs. The plaintiffs paid the amount with the interest accrued thereon, amounting altogether to the sum of $182.40, and then brought this action to recover back the money.

But the defendant in the year referred to, was upon the said premises as the assignee of the lease executed by and between his assignor and the assignors of the plaintiffs. The relation between the parties to this action is therefore the same as between lessor and lessee, and as such it is governed in the first instance, if not wholly so, by the terms of the written lease.

Now at the time of the execution of the lease there was a meter in, upon, and attached to the premises. The lease conveyed the premises Nos. 114, 116, 118 and 120 West 46th street in the city of New York, with the stables and office fixtures thereon, and the appurtenances belonging thereto, and, in addition to the reservation of an annual rent of $4,500, contained the following agreement on the part of the lessee, viz. : to keep on said premises during the term of the lease, free of charge, one horse or more and two wagons, harness^ &c., belonging to John Gr. Cary. It also contained the following covenant on the part of the lessee:

“ To pay the regular annual rent or charge which is or may be assessed or imposed according to law upon the said premises for Croton water, on or before the first day of August, in each year, during the term, and if net so paid, the same shall be added to the quarter’s rent then due.”

In view of these covenants, and there being no evidence that the lease did not constitute the whole of the contract between the original parties, and it having been conceded that the defendant did pay all the regular annual water-rent or charge, the case therefore comes down to this : The parties, who must be presumed to have known the law and to have entered into the contract with reference to the law, knew that both the regular and the extra water-rent or charge might become liens upon the land ; that the stables embraced in the lease, with a meter then and there in them, were subject to an extra charge ; and that in the absence of a covenant on the partof the lessee, to pay either charge, •the lessors would have to pay it. With the knowledge of all these matters the parties made the contract they did, by which the lessee was to pay only the regular charge. How then can the court say that the lessors did not, in the rent they reserved, include the extra charge, or that the lessee would have agreed to pay the reserved rent, if he was to be liable for the extra charge. The court cannot make a -new contract between the parties, and the one they did make, is governed by the principle “ expressio unius est exclusio alierius.” The lessee having been expressly obligated to pay a specified part of the water, the implication is that he was not to pay the other part.

The action, if sustainable at all, can only be sustained on the theory of money paid by the plaintiff for the use of the defendant at the latter’s special instance and request. But in the case at bar, there neither was an express request, nor can one be implied. Before the law will raise an implied request in any case, it must appear that the one against whom the request is to be implied, was bound to pay in the first instance, and that the claim paid is one, for the satisfaction of which the property of the one in favor of whom the request is to be implied, can be lawfully taken without any fault or negligence on his part. Whenever these elements concur, the parties are placed in the position of principal and surety, the one against whom the request is implied, being the principal, and the one in whose favor it is implied, being the surety. But in the present case these considerations only lead back to the question as to what the contract was, and upon that it has already been shown the defendant cannot be held.

It appearing, therefore, that the defendant is not liable under the lease, to pay for extra water, and that no promise ro pay for extra water can be implied against him, the plaintiffs’ complaint was properly dismissed.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and O’ Gorman, J., concurred.

       See ante, p. 165.


source: Caselaw Access Project

author: By the Court.—O’ Gorman, J.

license: Public Domain

text:
    MARY A. RYDER, by Guardian, etc., Respondent, v. THE MAYOR, etc. of New York, Appellants.

      Decided March 26, 1884.

      Negligence—infancy, rights and obligations arising out of—when infant sui juris.

    The plaintiff, a bright and intelligent child, under five years of age, while engaged in play with other children, in broad daylight, and while running about, went into an excavation made by defendants in the highway, near the curbstone of the sidewalk in front of plaintiff’s residence. The excavation had been there for some time, and plaintiff had been warned by her parents and others not to go upon the street upon that account, and was there without their permission. The jury found a verdict for plaintiff,—Held, on appeal, that notwithstanding the unusual intelligence of the infant, there is no authority requirng that a child of her years should be held sui juris; that plaintiff had the right to use the sidewalk even for play; also that the question whether or not the plaintiff or her parent, or both, were negligent, was properly left to the jury.
    The principles and authorities as to rights and obligations in these cases of infants not sui juris, reviewed and stated by the court.
    The evidence showed that plaintiff’s arm was fractured and afterwards became and remained disfigured, the jury awarded as damages $6,600, —Held, that the general term has the power and is bound to interpose on the question of damages when the interests of justice may require it; that the damages in this case were excessive, and should be reduced to $3,000.
    Before Sedgwick, Ch. J., Truax and O’ Gorman, JJ.

      Appeal from judgment in favor of the plaintiff for $6,600 on verdict of a jury, and from an order, denying a motion for a new trial.
    At the close of plaintiff’s evidence and of the case, defendant’s counsel moved to dismiss the complaint, on the fol lowing grounds : First. That there was no evidence of any negligence on the part of the city. Second. That there was evidence of contributory negligence on the part of the plaintiff. The court ruled that the question whether plaintiff was sui juris or non sui juris, was a question for the jury, and denied the motion for a non-suit, to which defendants’ counsel excepted.
    The action was for damages for a personal injury, and the evidence showed that plaintiff’s arm was fractured, and that it thereby became and remained disfigured at the elbow.
    Further facts appear in the opinion.

      George P. Andrews, corporation counsel, and Charles Blandy, for appellants.

      Joseph Kohler and Charles P. Miller, for respondent.
    The motions to dismiss the complaint were properly denied and the defendants’ exceptions are not well taken. Defendants’ negligence was clearly proven. The plaintiff being at the time of the accident only four years and eight months of age, the court would not have been justified in dismissing the complaint on the second ground urged by the defendants, even had the evidence shown conclusively that her personal negligence had contributed to the injury, for this would have compelled the court to decide, as matter of law, that the plaintiff was “ sui juris." Sucha decision would have been erroneous. Had the court, on the other hand, decided as a matter of law that the plaintiff was “ non sui juris," it is probable that its decision on this point would have been sustained on appeal (See McGarry v. Loomis, 63 N. Y. 104; Munally v. Spence, 15 Abb. Pr. N. S. 320). It is clear, however, that had the court held the plaintiff to be “non sui juris," the question of her personal negligence could not have been considered, and to have dismissed the complaint on the ground of contributory negligence, the court would have been obliged to hold, as matter of law, that the mother’s negligence (her daughter being non sui juris) contributed to the injury. This, under the evidence, would clearly have been error (McGarry Loomis, supra). The court, therefore, not having decided as matter of law that the plaintiff was non sui juris, was compelled to leave the question of contributory negligence to the jury (Cosgrove v. Ogden, 49 N. Y. 255 ; Mangam v. B. R. R. Co., 38 Id. 455 ; McGarry v. Loomis, supra; Mullany v. Spence, supra; Ihl v. Forty-second St. R. R. Co., 47 N. Y. 318 ; Fallon v. C. P. N. & E. R. R. R. Co., 64 Id. 13; Thurber v. Har. R. R. Co., 60 Id. 333 ; McGuire v. Spence, 91 Id. 306).
   By the Court.—O’ Gorman, J.

On May 19, 1875, the plaintiff, Mary A. Ryder, then an infant between four and live years old, fell into an excavation made by the defendants in Eightieth street between Third and Second avenues, and was injured thereby. This excavation was made for the purpose of laying a 48-inch main in the street, and it extended all along, and parallel with the southerly side of the street, a space of about three feet being left between the southerly edge of the excavation and the curbstone of the southerly sidewalk, and this excavation had existed for several weeks before the accident. The plaintiff lived with her father and mother in a tenement house on the south side of the street. In the progress of this excavation, the paving stones which had been taken up, were gathered in piles three feet high and twenty or twenty-five feet apart on the southerly sidewalk. One of these intervals or gaps between piles was before the house in which the plaintiff thén lived. Previous to the accident, the street between the curbstone and the excavation before the plaintiff’s said house had caved in and the curb had settled considerably, making the sidewalk there incline towards the cut. At about five o’clock in the afternoon, and in broad daylight, the plaintiff was found in the excavation in front of the house, but how exactly she got into it, the evidence does not disclose. Five or ten minutes before, she had got leave from her mother to go down stairs to the water-closet,—had been warned by her mother not to go to the street,—did go out on the sidewalk,—met there some other children, with whom she played tag, and in running about with them she went right into the hole. She had been forbidden by her mother to go into the street that day, because of this excavation into which she fell. She knew the opening was there. She had been warned not to go near the hole by her father the night before, and promised her father not to go near it. She got the same warning from her sister and made the same promise, and she knew what it meant. She seemed, from the evidence, to have been a particularly bright and intelligent child, in possession of all her senses and faculties.

The questions now to'be considered are: First. Was ¡here proof of negligence on the part of the defendants': Second. Did the evidence show that the plaintiff’s negligence contributed to the injury % Third. Was the verdict against the weight .of evidence, or excessive %

It is convenient that the second of these questions should be first examined.

Notwithstanding the unusual intelligence of the infant plaintiff, at the time of her accident, she was then under five years of age, and I do not know of any authority hold-that an infant so young should be regarded as “ sui juris ” (McGarry v. Loomis, 63 N. Y. 106). But whether suijuirs or not, if she, by want of such care and caution, on her own part, as could have been fairly expected and due, from one of her years, and knowledge of the existence and nature of the danger to be guarded against, had caused the injury, such negligence on her part would go far to defeat this action. If “sui juris” it would be negligence, imputable to herself (Wendell v. R. R., 91 N. Y. 426 ; Thurber v. R. R., 60 Id. 333-4). If not “ sui juris” and her parents had been negligent in leaving her free to run at large on the sidewalk, defective as it was, and so near a dangerous excavation, then their negligence, concurring with her negligence, would defeat the action (Reynolds v. R. R., 58 N. Y. 248 ; Ihl v. R. R., 47 Id. 322). She had no doubt the right to use the sidewalk even for play (McGuire v. Spence, 91 N. Y. 303-6; McGarry v. Loomis. 63 Id. 107). But warned, as she was,, of the dangerous excavation, so near the sidewalk, if she, by recklessness, or the want of such ordinary care as was due from her, considering her age and intelligence, fell into the chasm, it would be imputable to her as contributing negligence (Honegsburger v. R. R. 1 Keyes, 570 ; cited in 91 N. Y. 426).

Whether the - evidence of contributory negligence on the part of the infant plaintiffs here, or her parent, or both, was sufficient as matter of law to have made it proper for the trial judge to dismiss the complaint, is a question not free from doubt, but the preponderance of authority seems to me in favor of leaving it as matter of fact to the jury (McGuire v. Spence, supra; Stackus v. R. R., 79 N. Y. 466). The question as to the existence of negligence on the part of the defendants, was also rightly left to the jury as a question of fact. Although they had the right to dig the excavation in question and it was done in pursuance of their civic duties, and although they do not guarantee the absolute safety of the public streets, yet they are bound to take reasonable precaution for the protection of citizens, and whether they have done so in this case is a question of fact.

The next question is as to the amount of damages, and, there this court has the power, and is indeed bound to interpose whenever the interest of justice requires (Houghkirk v. President, &c., 92 N. Y. 222). In this respect the verdict here is not warranted by the evidence. Beyond rhe injury to the plaintiff’s arm, for which she is entitled to substantial damages, there is no sufficient reliable testimony that she received any other injury by reason of her fall into the excavation, of which the negligence of the defendants was the proximate cause. For this injury to her arm, which was neither grave nor lasting in its effect, the verdict rendered by the jury, $6,600, would be clearly unreasonable and excessive.

The accident occurred on May 19,1875. The weight of evidence is that she made no complaint of pain in her hip until the winter of 1879. The action was begun in December, 1882.

After a careful examination of the evidence we have come to the conclusion that the verdict at its present amount should not stand. Unless, therefore, the plaintiff consents to accept the sum of $3,000 in full satisfaction of the claim in suit, there must be a new trial, with costs to abide the event; and the order denying the motion for a new trial should be reversed, with $10 costs.

Sedgwick, Ch. J., and Truax, J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    ELIZA A. THOMAS, as Executrix, etc., Respondent, v. THE NEW YORK LIFE INSURANCE CO., Appellant.

      Executors—powers before probate.—Doctrine of relation as to acts of executor de son tort.—Damages.

    Before the statutes of this state in regard to executors were passed, the powers and title of an executor had the broadest scope, and he was a complete executor before probate, to all purposes, except bringing an action.
    An executor holds from the will itself, and the law, by a subsequent probate of it and qualification of the executor, has secured two principal objects, viz., proof in the only form the law can recognize, and that there will be no renunciation of the obligation of administration ; and notwithstanding 2 i?. 8. 71, § 16, providing that no executor, before letters, shall “have any power to dispose of any part of the estate, except,” etc.,—a sale by a person named in a will as executor, of assets of the estate, before probate, for full value and for the benefit of the estate, is validated by the subsequent qualification of the same person as executor.

      Decided April 7, 1884.
    Where a sale so made, is not one which would be a rightful act of administration, and is not made valid by relation, in an action for conversion of the goods brought by the executor after probate and letters, the true rule of damages requires that the amount .of money formerly paid into and remaining with the estate, should be applied to reduce the amount of the recovery, viz., the true value of the goods.
    The principles and authorities as to executors and executors de son tort reviewed and considered.
    Before Sedgwick, Ch. J., Freedman and O’ Gorman, JJ.
    Appeal by defendant from judgment entered upon finding and conclusions of a judge, he trying the issues by consent.
    The action was for damages for the conversion by defendant of goods and chattels, part of the testator’s estate. The act of conversion, as alleged, was the defendant’s buying and receiving from the plaintiff, before she had taken out letters testamentary, the goods and chattels in question, she selling and delivering them to the defendant.
    The following findings were made by the trial judge :
    “ 1st. That the above-named Griffith Thomas departed this life on or about January 6, 1879.
    “3d. That at the time of the decease of said Thomas he was the owner and possessor of certain personal property consisting of office furniture, carpets and fixtures.
    “3d. That previous to his death the said Thomas occupied an office in the building of the defendant at No.-346 Broadway, in the city of New York, and the personal property mentioned in the previous finding was stored in said office at the time of the decease of said Thomas.
    ‘1 4th. That the personal property was of the value of $400.
    “ 5th. The plaintiff in the action was, by the terms of the last will and testament of the said Thomas, nominated as executrix thereof, and on or about July 6, 1879, by an order, decision, or decree of the surrogate of the city and county of New York, the said last will and testament was duly admitted to probate, and letters testamentary issued to the plaintiff, who thereupon duly qualified and entered upon the discharge of her duties as such executrix.
    “ 6th. That on or about February 18, 1879, the defendant took possession of the property contained in the office of the said Griffith Thomas, deceased, situate in the building of defendant as aforesaid.
    “7th. That on or about February 24, 1879, the plaintiff executed to the defendant a release and bill of sale of said personal property, and the defendant, in consideration thereof, paid to the plaintiff the sum of $400, and further released and canceled a debt of $5,250 due or claimed to be due by the said Thomas to the said defendant.
    “8th. That at the time of the execution of the said bill of sale or release the defendant knew that the plaintiff had not received letters testamentary, and had full knowledge of the fact that she had not yet qualified as executrix of the said last will and testament of Griffith Thomas, deceased.
    “9th. That the money, paid by the defendant to the plaintiff was not used for the purpose of defraying funeral expenses nor for the purpose of preserving the estate.”
    And as conclusions of law:
    “ 1st. That the plaintiff had no power to execute the bill of sale and release to the defendant, she not having received letters testamentary on the will of Griffith Thomas, deceased, at the time of the execution thereof.
    “2d. That the consideration therein expressed as far as it released a debt due by the plaintiff’s testator to the defendant was invalid and contrary to law.
    “ 3d. That the said release and bill of sale was wholly void and without any effect.
    114th. That the plaintiff should recover judgment for the value of the said personal property, to wit, the sum of $400, together with the costs of this action, to be taxed by the clerk.”

      Chamberlain, Carter & Hornblower, for appellant.—
    The title of an executor takes effect by relation, so as to validate transactions in good faith, intermediate between the date of the testator’s death and the date of letters testamentary. (a) At common law, the title of an executor is derived from the will, and not from the letters testamentary. The issuing of the letters is merely a formal authentification of his title, but confers no new rights.
    It is said in Williams on Executors (6th Am. ed. p. 293), that the probate of a will merely gives the authenticated evidence of an executor’s title, and is not the title’s foundation; “ for he derives all his interest from the will itself, and the property of the deceased vests in him from the moment of the testator’s death.” Further, at p. 302, “ the executor, before he proves the will in the probate court, may do almost all the acts which are incident to his office, except only some of those which relate to suits.” “He may pay or take releases of debts owing to the estate and “he may sell, give away, or otherwise dispose at his discretion, of the goods and chattels of the testator, before probate.”
    (6) At common-law, the title of an administrator is derived from the granting of letters ; but even in case of an administrator, when the letters have been granted, his title relates to the date of the death of the intestate, and validates acts of the administrator intermediate between the death of the intestate and the granting of letters” (Whitehall v. Squire, Holt, 45; Carthew, 103; Vaughan v. Browne, Andrews, 333; Walker v. May, 2 Hill Ch. [S. C.] 23; Rattoon v. Overacker, 8 Johns. 126 ; Priest v. Watkins, 2 Hill, 225 ; Vroom v. Van Horne, 10 Paige, 549).

      (c) Our statute has altered the common law rule as to executors ; but the effect of this alteration is merely to assimilate the rule to that which formerly applied to administrators. The language of the statute is as follows (2 R. S. 71, § 16): “ Ho executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges ; nor to interfere with such estate in any manner further than is necessary for its preservation.” This statute does not, in terms, abolish the common law, that letters of administration, as well as letters testamentary, date back to the death of the intestate or testator, so as to validate the theretofore unauthorized acts of the administrator or executor ; and it surely ought not to be so construed by implication. The rule should be applied that “ statutes in derogation of the common law should be strictly construed.’' The decisions of the courts since the revised statutes support the view for which we contend (Thomas v. Cameron, 16 Wend. 579; Priest v. Watkins, 2 Hill, 225 ; Vroom v. Van Horne, 10 Paige, 549; Matter of Faulkner, 7 Hill, 181; Bellinger v. Ford, 21 Barb. 311; Humbert v. Wurster, 22 Hun, 405).

      (d) Ho question can be made here as to the fairness or good faith of this transaction between these parties, in view of the findings of the trial court.

      W. Bourke Cockran, for respondent.
    The Revised Statutes expressly prohibit and declare invalid any transfer of property of a deceased person by his executor before the issue of letters testamentary (2 R. S. p. 71, § 16). The courts have been repeatedly called upon to pass on this statute, and have uniformly held that its provisions were an express limitation of the powers of executors (Humbert v. Wurster, 22 Hun, 405). If the law on this subject were still unsettled the defendant’s argument might be regarded as an ingenious plea for a different rule of construction, but it is now too late to disturb the interpretation which has become settled by precedent and established by adjudication. The defendants’ argument is based entirely on decisions as to the rights and powers of administrators before appointment, but he forgets that the common law rule still applies to them, while the powers of an executor have been expressly limited by statute (Thomas v. Cameron, 16 Wend. 579). Whenever any .act of an executor involving the interference with or disposal of property of his testator, before the granting of letters testamentary has been questioned in the courts, such act has been decided to be unlawful and without binding effect (Thomas v. Cameron, 16 Wend, supra; Balinger v. Ford, 21 Barb. 301).
   By the Court.—Sedgwick, Ch. J.

Before the statutes of this state were passed,- the powers and title of an executor had the broadest scope. In Wankford v. Wankford (1 Salk. 299), the judges agreed that an executor is a complete executor to all purposes, but bringing of actions before probate; that before probate he may release an action, may be sued, may alien or give away the goods, or otherwise intermeddle with them.

He could not bring an action before probate, because he could not show the will proved under the seal of the proper court. In 11 Vin. Ab. 202, Execution (Aa) 2, it is said upon the cases cited, “ If an executor, before probate of the will, bring an action of debt upon a bond due to him as executor, but when he declares he shows it to the court proved, this being proved after the action brought, yet the action is well brought, because he was executor before,probate, though by law he is not permitted to sue before probate ; yet this being proved, the impediment is removed ab initio. for he by showing of the will to the court, satisfies the ceremony which the law requires, which he has done, so as the law requires.”

In Hensloe’s Case (9 Rep. 38 a), it is said: “The executors have their title by the will, which is temporal, and to the goods and chattels also which are temporal, as it is agreed in Plow. Com. in Giresbrook’s Case, 280, which will is complete as to all goods in possession and reversion, and as shall be after said, to release debts and duties, before any probate. But as to bringing of actions, in the king’s court, the judges do not admit the executors to sue for things in action, unless they show the will proved duly under the seal of the ordinary .... so that the probate of the will doth not give them any interest or title either to the things in action or in possession, for they have their whole title and interest by the will, and not by the probate ; but yet without the probate, the judges will not allow them to bring actions.”

These powers of executors named in a will are still valid, excepting to the extent they have been changed by the statutes. So far as this case is concerned, the principal provision of the statute is 2 R. S. 71, § 16: “ No executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation.”

A construction of this statute was involved in the decision of Thomas v. Cameron (16 Wend. 579). Judge Bronson considered the effect of a plea that the plaintiffs who sued as executors, were not executors at the time of the commencement of the action, without saying that they were not afterwards executors. He thought that at common law the plea should have alleged that the plaintiffs are not and never were executors, but that under the statute it was sufficient. The persons named as executors could only acquire the right to sue by proving the will. “If they were not executors at the time the suit was commenced, letters subsequently obtained would not aid them by relation. The statute has introduced a new rule, by taking away the common law right to sue before probate.” He had said, “If the goods of the testator are taken from the executor before probate of the will he may maintain trespass, trover or replevin on his own possession, and in such a case he is not obliged to make a profert of the letters testamentary.”

Judge Bronson also gave the opinion in the Matter of Faulkner (7 Hill, 181). Falkner and one Finley were named as executors in the will of one Elliott. Finley proved the will, and qualified. Before Faulkner qualified he received several sums of money belonging to the estate. Afterwards he qualified. He being indebted, absconded. At a meeting of creditors under a statute, Finley, as executor, claimed for the estate, priority of payment out of Faulkner’s property, of the sums of money received by the latter, under the statute that the trustees “shall first pay-all debts that may be owing by the debtor as executor, etc.’ ’ The opinion said that the objection urged was that under the 16th section, 2 R. S. 71, Faulkner was not executor at the time he received the money, and that Thomas v. Cameron (16 Wend. 579), was cited. “ But the answer is, that when Faulkner qualified as executor, his authority related back and legalized the payments which had previously been made to him (Priest v. Watkins, 2 Hill, 225). He afterwards held the money, and it was a debt against him as executor.”

Undoubtedly, the court must have had in mind 2 R. 8. 449, § 17. “No person shall be liable, as executor of his own wrong for having received, taken or interfered with the property or effects of a deceased person, but shall be responsible as a wrongdoer in the proper action, to the executors, etc., of such deceased person for the value of any property or effects so taken or received, and for all damages caused by him to the estate of the deceased.” It must have been considered that the subsequent qualifying as executor operated by way of relation so as to prevent Faulkner being deemed an executor of his own wrong, or liable in trover or trespass only.

Priest v. Watkins (2 Hill, 226), stated the law in reference to administrators. The plaintiffs were administrators, etc., of David Benson, one being his widow. After the death, before letters of administration had been taken out, the widow had received payment of a note, part of the estate of the intestate. After the plaintiffs had received the letters, they brought suit upon the note, and the payment was pleaded. It was held to be a defense. For the plaintiffs the statutes that have been referred to were cited. The court said “ that, independent of the provisions of the Revised Statutes as to executors de son tort, the letters of administration would have related back and legalized the payment in question can admit of little doubt (Rattoon v. Overacker, 8 Johns. 126; 1 Will, on Ex. 240, 396-7), and we are of opinion that those provisions were not intended to operate any alteration of the law in this respect.” -It will be borne in mind that a person entitled to administration had no power or authority, before taking letters, to interfere with the estate. He was without the power, as the statute says the executor shall be without power.

In Bellinger v. Ford (21 Barb. 314), the court distinguished cases like Thomas v. Cameron, where an act may not be made valid by relation and such where it may be, like the cases already cited, and Vroom v. Van Horn (10 Paige, 549). As to the latter kind of case, Judge Bocees said they were cases where the executor or administrator had received or collected money belonging to the estate, voluntarily paid to him, or when he had wrongfully taken possession of and converted to his own use, property belonging to the estate of the testator or intestate, before administration was granted to him. As to all such acts, he stands the same after receiving letters, as if he had been executor or administrator at the time. Such was the rule of the common law, and this doctrine of relation has not been changed by statute, &c.,” but this rule applies to those cases only “ where money is obtained, without any coercive proceedings, and where property of the estate shall have been wrongfully appropriated, and not to illegal or coercive acts against third persons and their property.”

When it is kept in mind, that an executor holds from the will itself, as if he were an agent or attorney of the testator and that the law by a subsequent probate of the will and qualification as executor has secured two principal objects, viz. ; proof in the only form the law can recognize, and that there will be no opportunity of a renunciation of the obligations of administration, the application of the doctrine of relation seems to be reasonable. Apparently, the cases that have been cited are authority that a sale like the present is validated by the subsequent qualifying as executrix.

In a certain sense, a person having a right to be qualified as executor because named in the will, was a!t common law under the same restrictions as those declared by the statute. Until the will was proved, there was no evidence that he had any right to intermeddle with the goods of the testator, and if he did intermeddle, it would appear that he had no lawful power or authority so to do. The consequence would be, that he would be liable, as executor de son tort, although charged in form as rightful executor, in favor of creditors. Under our statute, such a person is held to be not executor de son tort, but a trespasser responsible to the executor or administrator of the deceased for the value of the goods. It is according to ordinary legal rules anomalous that a person having a right to be made executor, who intermeddles, should after his appointment be liable to himself as executor in tort. It therefore may be that the subsequent act of qualification, will, under the statute affect the prior tort, as the probate of the will would at common law.

I have intended, in what has been already said, to limit the act of the executor before letters to a transaction that would be rightful if letters had been granted—for instance, a sale like the present one for true value and for the benefit of the estate.

It seems to me well, however, to take another view, to assume that the sale was contrary to the 16th section, was not made valid by relation, and to inquire what damages the statutes intended should be recovered, under circumstances like the present.

The 2 R. S. p. 81, section, 60 declares that every person who shall take into his possession any of the assets of any testator or intestate, without being thereto duly authorized, as executor, etc., or without authority, etc., shall be liable to account for the full value of such assets to every person entitled thereto, and shall not be allowed to retain or deduct from such assets for any debt due to him. Although this last phrase shows a reference to an act of administration by an executor de son tort, yet the previous words are general and refer to any person.

By 2 R. S. 449, § 17, which takes away liability as executor of his own wrong, and creating instead liability as a wrongdoer, makes the person responsible for the value of any property or effects so taken or received, and for all damage caused by his acts, to the estate of the deceased.

At common law, an executor de son tort could not retain for his own debt, or receive advantage for any act done by him for his own benefit, but under his plea of plene administravit, he might give in evidence payment of just debts, or in .an action of trover, the payment of debts might be recouped from the damages (Sedgwick on Dam. [431]; Middleton’s Case, 3 Co. Rep. 55 and note; Coulter’s Case, Id. 60 and note). This is the rule, when no letters of administration had been subsequently taken out or will proved.

In Woolley v. Clark (5 Barn. & A. 744), the case was of an executor of a last will, suing for damages from the sale of goods of the estate made by the defendant, who had qualified as executor, under a former will, it not being known that there was a later will. But before the sale, the defendant had notice of the last will. Mo mitigation of damages was allowed. The decision was put on the ground that the plaintiff took title from the last will itself, while the defendant had no title, the will under which he qualified, having been annulled by the fact that there was a later will, and he having sold with notice of it. In the present case, the plaintiff had the title, her power to sell being restrained, until letters were issued to her.

Mountford v. Gibson (4 East, 441), passed upon an act, which in itself was a bare trespass, and not shown by the circumstances to be an act of administration, though tortious. The case does not pass upon whether if it had been an act of the latter kind, the defendant would have been liable.

In the present case, the evidence shows that the transaction was such as would have been a rightful act of administration, and appeared to be for the benefit of the assets of the estate. There was no proof that the money paid for the goods was taken by the plaintiff for her personal benefit. It cannot be intended, that she without alleging and proving it, places her action upon a conversion by her of the money. It is to be intended that the money became and remained part of the assets.

I am of opinion that under these circumstances, the true rule of damages, the executrix not claiming the goods themselves, would require that the amount of money formerly paid into and remaining with the estate, should be ■ applied to reduce the amount of the recovery, which was the whole value of the goods. The most of what has been said in this opinion concerns the responsibility of the person named in the will, disposing of goods before letters testamentary. I see no reason for making the,responsibility of the person receiving the goods from her, greater than hers. In the present case, the court found that the value of the goods was $400. As that amount had already,been received on the sale, which was impeached, the plaintiff’s damages are nominal. The amount of the recovery should be reduced to six cents.

Freedman and O’Gorman, JJ., concurred.


text:
    EMILY DE SILVER, Respondent, v. HOWARD HOLDEN, Appellant.

      Demurrer—Misjoinder of causes of action—Valse representations.—Pleading.

    An alleged cause of action, “that by false and fraudulent representations defendant had induced plaintiff to sign a bond, conditioned for the payment of $1,700, and also a mortgage upon plaintiff’s real estate, to secure the payment of the bond, which were made and executed to a third person by defendant’s request, to whom defendant delivered them, receiving from such third person $1,700, for the same,” may be joined in the same complaint with a second cause of action for the conversion of personal property of the plaintiff by the defendant (Code, § 484, subd. 6; Cleveland ®. Barrows, 59 Bar. 374). The plaintiff had a property in the bond after execution and before delivery (Decker ». Matthews, 12 N. T. 313), and the complaint alleges that defendant obtained the bond from her by false pretenses, thereby taking and tortiously converting the same.

      Decided April, 7 1884.
    Upon demurrer, the presumption that plaintiff will be obliged to pay said bond, will be held sufficient to take the place of an allegation of damage. Where the complaint" avers “that with intent to deceive and defraud the plaintiff, defendant falsely and fraudulently stated and represented certain matters of fact, as to his own financial condition, and as to property owned by him,” etc., such an averment implies a charge that the defendant knew the representations to have been false, or that he knowingly made them (Marie v. Garrison, 83 N. T. 28).
    Before Sedgwick, Ch. J., and O’Gormas, J.
    Appeal from a final judgment in favor of plaintiff, entered- upon an order and interlocutory judgment overruling defendant’s demurrer to the complaint.
    Defendant demurred on two grounds:
    1. That causes of action are improperly united.

      2. That the allegations as to the first alleged cause of action are insufficient, &c.
    The facts appear in the opinion.

      E. P. Wilder, for appellant.
    I. Causes of action have been improperly united in this complaint (Code, § 488, subd. 7). The first cause of action is evidently for damages for obtaining a bond and mortgage upon real property by false and fraudulent representations. The second is a cause of action for failing to return a chattel after demand made therefor. The first is what was formerly known as an action upon the case for fraud and deceit. The second is what was formerly known as trover or conversion. The plaintiff’s counsel insists that both the causes of action may be included under subdivision 6, of section 484, to wit: “ Injury to personal property.” But this is impossible ; for the first cause of action relates to a supposed injury to real property, if to- anything, being an impairment of plaintiff’s title to certain real estate ; while the second cause of action relates to personal property, ;but in no manner alleges any “injury” to it. But assuming, if necessary, that the conversion of a chattel is in law an “ injury ” to personal.property, it never has been held that fraudulent representation whereby a plaintiff was induced to execute a bond and mortgage not yet due nor payable and by reason whereof plaintiff has not yet suffered the loss of a farthing, is an injury to personal “property.” The Code has defined, the term “injury to property” as an actionable act ‘ ‘ whereby the estate of another is lessened other than a personal injury or the breach of a contract” (§ 3343, subd. 10). The kinds of tort which may be united in one complaint under the Code are extremely few. It has been held that conversion, wrongful detention, and an action for accounting cannot be united (Thompson v. St. Nicholas Bank, 61 How. 163). Nor can a cause of action for malicious prosecution be united with one for false imprisonment, strikingly similar as those causes are (Nebenzahl v. Townsend, 61 How. 353). Nor a cause of action for an assault with one for slander, although the slander and assault were simultaneous (sse also Furniss v. Brown, 8 How. 191; Colvell v. N. Y. & E. R. R. Co., 9 How. 212; Ehle v. Huller, 10 Abb. Pr. 287; Maxwell v. Farnam, 7 How. 236 ; Flynn v. Bailey, 50 Barb. 73; McDonald v. Kountze, 58 How. 152; Hunter v. Powell, 15 Id. 221; Cobb v. Dows, 9 Barb. 230; Anderson v. Hill, 53 Id. 238).
    II. The so called first cause of action does not set forth facts sufficient to constitute a cause of action; and this for the following reasons: First. The plaintiff is not damaged. It does not appear that she will ever be called upon to pay her bond or redeem her mortgage. They are not yet due. Non constat, but the defendant will do his whole duty in that behalf. In a civil action for fraud and deceit, damage is as essential to the action as fraud (Aberdeen v. Blackman, 6 Hill, 324; Gilbert v. Wiman, 1 Comst. 550; Wright v. Whiting, 40 Barb. 235). Second. The complaint does not allege that defendant knew his representations to be false when he made them. Non constat, but he honestly believed them to be true (Moore v. Noble, 53 Barb. 425; Robinson v. Flint, 56 Id. 100; Van Vliet v. MacLean, 23 Hun, 206).

      C. Bainbridge Smith, for respondent.
    I. The causes of action are properly joined. They fall within the general provision of the Code of Civil Procedure termed “ For injuries to personal property” (Code Civ. Pro. § 484, subd. 6; Cleveland v. Barrows, 59 Barb. 364; Lovett v. Pell, 22 Wend. 369).
    II. The maker of a negotiable promissory note can maintain an action for its conversion (Decker v. Matthews, 12 N. Y. 313; Develin v. Coleman, 50 Id. 531). In such a case the plain tiff'is entitled to recover the amount of the note as damages for its conversion without averring or proving that he has paid it to the holder. It is sufficient that he is liable to pay it (Id.).

    III. The plaintiff will have to pay the bond and mortgage. The mortgagee paid the money on it in good faith (Aikin v. Morris, 2 Barb. Ch. 140).
   By the Court.—Sedgwick, Ch. J.

The judgment appealed from was entered upon an assessment of plaintiff’s damages after a demurrer to the complaint bad been overruled and final judgment ordered for plaintiff. The appeal involves the correctness of the order overruling the demurrer. The demurrer was placed upon two grounds ; first, that causes of action were improperly joined ; and second, that the allegations of the first alleged cause of action are not sufficient to constitute a cause of action.

The first alleged cause of action was, that by false and fraudulent representations, the defendant had induced the plaintiff to sign a bond conditioned for the payment of $1,700, and also a mortgage upon plaintiffs’ real estate, to secure the payment of the bonds which were made to a third person by defendant’s request, to whom defendant delivered them, receiving therefor from the third person $1,700. The other alleged cause of action was for the conversion of personal property belonging to plaintiff.

The appellant’s counsel argues that the joinder is not justified by the code, unless by subdivision 6 of the 484th section, that provides that the plaintiff may unite causes of action for injuries to personal property. The further claim is, that the first cause of action is not for an injury to personal property.

Cleveland v. Barrows (59 Barb. 374), satisfactorily decides this point. The opinion is, “Fraud is a wrong, and if a party thereby obtains from another, property, it is an injury to the property of such other in the same sense precisely as though the wrongdoer had taken the property tortiously and converted it. The bond signed by- the plaintiff was her property, and the complaint alleges that the defendant obtained it from her by false pretenses. This only affected personal property, for the mortgage which affected the real property was distinct and different from the bond. That she had a property in the bond after she signed, and before it was delivered to the obligee by the defendant, is shown by Decker v. Matthews (12 N. Y. 313), and the cases which have followed it. There was therefore no misjoinder of causes of action.

The important objection to the sufficiency of the allegation to form a statement of a cause of action is, that the complaint does not aver directly that the defendant knew that the representations he made were false. But if the allegations imply that he knew they were false, it seems to be enough, under the case of Marie v. Garrison (83 N. Y. 28). It was said in that case, “Bearing in mind that what is implied in an averment is on demurrer to be taken as if the thing implied is directly averred, and that an argumentative pleading is not for that reason demurrable, we conclude, although not without some hesitation, that an averment of refusal to exchange does import that the other party offered to do that without which no exchange could be effected, viz., that he tendered the property or thing which was the consideration of that which he was to receive, and which he called on the other party to deliver.”

The complaint avers that with intent to deceive and defraud this plaintiff, the defendant falsely and fraudulently stated and represented certain matters of fact as to his own financial condition and as to property owned by him. These were things that the law would presume were within his knowledge. Such averments imply a charge that the defendant knew the representations to have been false, or that he knowingly made them. '•

There is another objection, that the complaint does not show, that the plaintiff was or will be damaged by the fact of the bond being delivered to the third person after having been obtained by 'the defendant. On the facts stated there is a liability upon the bond by the plaintiff to the third person, and a presumption that she will be obliged to pay, and no presumption that the defendant will indemnify ■her, after he has been guilty of the tort charged. Again, there are some damages, and the assessment of them is not under review.

Judgment affirmed with costs.

O’GIorman, J., concurred.


author: By the Court.—Freedmah, J.

text:
    MATILDA PAULITSCH, Respondent, v. NEW YORK CENTRAL & H. R. R. R. Co., Appellant.

      Decided April 7, 1884.

      Juror—misconduct of—how waived—objection when must be taken.—New trial —motion for, where made.

    A motion for a new trial on the ground of objectionable conduct on the part of a juror, must be made to the court at special term, either upon a case settled, or affidavits, or both, and cannot be entertained on appeal from a judgment and from an' order denying a motion for a new trial upon the minutes.
    A party, by taking the chances of a favorable verdict, with full knowledge of the objectionable act of a juror, and without in any way objecting to it, waives whatever objection might have been made; and this, whether the conduct of the juror complained of be considered as misconduct or as an irregularity.
    Before Sedgwick, Oh. J., and Freedman, J.
    Appeal by defendant from a judgment in favor of the plaintiff for $13,191.97, entered upon the verdict of a jury, and from an. order denying defendants’ motion on the judge’s minutes for a new trial.
    The facts appear in the opinion.

      Frank Loomis, for appellant.

      Edmund Huerstel and Christopher Fine, for respondent.
    I. The question whether this was so-called “ misconduct,” on the part of the juror, which could have in any or under any circumstances affected the verdict, if the same had not been waived at the time, is not even before the general term on this appeal, nor can it be considered by them. Such motions must be made at special term, and on affidavits setting forth the facts claimed as misconduct; they cannot be made on the judge’s minutes (3 Wait's Practice, 187, 398, 399; 4 Id. 488, 489; Code Civ. Proc. §§ 999, 1000, 1001, 1002; Angell v. Jacobs, 56 How. 167).
    II. But even if the circumstance referred to might have been said to constitute “misconduct” on the part of that juror, it was waived by the silence and acquiescence and subsequent conduct of defendant’s counsel, and the con sequent proceedings in court thereafter (Broom Legal Maxims, 102, 103; 2 Graham & W. New Trials, 149, 150, note; Hallock v. County of Franklin, 2 Mich. 558; 1 Douglas, 306; 2 Graham & W. New Trials, 466, 468; Dayhaugh v. Enos, 5 N. Y. 531; Fox v. Hazleton, 10 Pick. 275 ; 2 Graham & W. New Trials, 467, 468; Gale v. N. Y. C. & H. R. R. R. Co., 13 Hun, 1, 6, 7; Rees v. Stadler, 54 How. 492 ; Kelly v. Christel, 16 Hun, 242; Mahoney v. Decker, 18 Id. 365; Dolan v. Ætna Ins. Co., 22 Id. 396; Fessenden v. Seger, 53 Me. 531 ; State v. Daniels, 44 N. H. 383; Martin v. Tidwell, 36 Ga. 332).
   By the Court.—Freedmah, J.

There can be no doubt that the relation of passenger and carrier existed between the parties at the time of the injury, and that the plaintiff, as a passenger, was injured in the attempt to get on board of a car belonging to a train run by the defendant.

At the trial, her testimony was sufficient to carry the case to the jury, both upon the question of negligence in the agents and servants of the defendant in suddenly starting the train before the plaintiff had a reasonable opportunity to get on it, and upon the question of contributory negligence on her part. The credibility of her testimony and that of a female witness who largely corroborated her, was for the jury. No error was, therefore, committed by the court in refusing to non-suit. The evidence given on the part of the defense with the view of establishing that the plaintiff arrived too late at the statioh and attempted to board the train while it was already in motion, and that consequently, there was no negligence on the part of the defendant, but contributory negligence on the part of the plaintiff, created a conflict, and the conflict remained after the plaintiff had completed her evidence in rebuttal, so that neither side was entitled, as matter of law, to the direction of a verdict upon the main issue.

The case, therefore, was one for the jury, and it was submitted to the jury under a , charge which carefully guarded all the rights of the defendant in every aspect of the case, except in the following particular, viz. :

Throughout the trial, the contention of the defendant had been that the plaintiff did not attempt to get on the car where she stated" she did, and that she could not have fallen into the space between the platform of that car and the platform of the station as she claimed she did, because there was not room enough for her to do so. This alleged improbability of her version of the occurrence was the subject of some remark between the counsel for the defendant and the trial judge at the conclusion of the judge’s charge and while the said counsel was engaged in having certain exceptions to the charge noted, when one of the jurors arose and spoke as follows, viz. : ‘ ‘ That was a point that 1 took a note of. Defendant’s counsel stated that it would be very extraordinary if anybody could come to the conclusion that a lady of her- weight could fall in that space. Now I contend there was ample space. I went yesterday on a train to Woodlawn, constructed in the same way, and I got off at the platform and watched the cars, when they made a start and I seen the space there that would probably be 3 feet by 15 inches between the two platforms, and a lady taking hold and suddenly jerked and thrown in that way, had ample room to fall. It was merely a matter of satisfaction to myself.”

The trial judge thereupon said: “That, gentlemen, is a question for you to consider when you get into your room.”

This instruction would have constituted error and ground for new trial, if it had been objected and excepted to. But the counsel for the defendant did neither, nor did he make any other motion. He thus acquiesced in the instruction as given, and the jury retired. Thereafter the trial judge, it seems, became aware of the incorrectness of the instruction. He consulted with the counsel of both parties, and they not objecting, the jury were recalled to the court room, and, in the presence of counsel, re-instructed as follows, viz. :

“Gentlemen of the jury : I have called for you in order to speak to you about a circumstance which occurred before you went out. One of your number stated that he himself personally examined one of the cars, and in the jury-box he stated what was the result of his examination. I have called both of the counsel and speak with their consent. I desire to say to you, that you have sworn to find a verdict on the evidence, and what has been discovered by a member of your body is not evidence, and must in no way influence you and it should in no way influence him.”

The counsel for the defendant again failed to express any dissent. The counsel for the plaintiff then, offered to withdraw the juror who had made the examination, and to take the verdict of the other eleven. The counsel for the defendant still persisted in remaining silent. The jury then again withdrew, and, upon the completion of their deliberations, they rendered a verdict for the plaintiff for $12,500, and, upon being polled pursuant to the request of defendant’s counsel, each juror answered that such was his verdict.

Under the circumstances stated, the error in the first charge was cured by the subsequent instruction, and any further objection which might have been raised on the part of the-defendant on the general ground of prejudice, was waived, whether the conduct of the juror in question be considered as misconduct, or as an irregularity. In either case all the authorities are to the effect that the defendant, by taking the chances of a favorable verdict, with full knowledge of the objectionable act of the juror, and without objecting to it in any way, waived whatever objection might have been made.

Moreover, the point would not be available to the defendant on this appeal, even if it had not been waived. True, there is an appeal from an order denying defendant’s motion for a new trial in conjunction with an appeal from the judgment. But the motion for a new trial was made on the exceptions taken, and on the alleged ground that the verdict was excessive, and contrary to the evidence, and contrary to law. These grounds did not embrace any question arising upon the act of the juror referred to. So the motion for a new trial was made on the minutes of the judge, whereas the motion for a new trial on the ground of objectionable conduct on the part of a juror must be made to the court at special term, either upon a case settled, or affidavits, or both.

For the reasons stated it must be held that the defendant has no ground of complaint on account of any of the instructions given to the jury, or the, conduct of the individual juror referred to. I also carefully examined the refusals to charge, but could discover no error in respect to any of them for which, a new trial could be ordered.

The exception to the admission of evidence at fol. 175, is clearly untenable, and upon the closest scrutiny of the evidence on both sides, it cannot be said that the verdict is against the evidence or the weight of the evidence, or that it is excessive. The case was one peculiarly within the province of the jury, and falls within the rule that a verdict fairly sustainable upon conflicting testimony will nob be disturbed.

The judgment and order appealed from should be affirmed with costs.

Sedgwick, Ch. J., concurred.


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    THE NORTHAMPTON NATIONAL BANK, Respondent, v. AMOS M. KIDDER et al., Appellants.

      New trial, on the grounds of surprise, inadvertence and excusable neglect.

    .Where the facts sought to be proven upon a new trial, were directly involved in the main issue litigated upon the former trial, and had they existed, should have been then and there established, it is a serious question whether a motion is not too late in any aspect of the case.
    If a party having an election to pursue one of several courses, adopts one of them at a stage of the litigation, at which the election must be made, he is deemed to have waived all others, and this rule must be strictly enforced. ,
    It is claimed in this case that the counsel for appellant omitted to prove at the trial, the actual payment of a valuable consideration for the bonds for the conversion of which respondent brought this action, and the amount thereof, in consequence of the statements made by respondents counsel to the effect, that he, the said counsel, did not attack the good faith of the defendants. Held, that assuming this statement to have been made, the defendants had no right to be misled thereby, inasmuch as good faith and the actual payment of value on the faith of the bonds, and the proof thereof, were necessary to the establishment of the defense, and plaintiff’s counsel was under no duty to inform the defendants specifically and accurately as to, the exact requirements of their defense in the case.
    A claim was made that defendant’s counsel was misled as the trial by the action of the trial judge, in ordering a verdict subject to the opinion of the court at general term. Held, untenable. If defendants’ counsel considered such a disposition of the case involved, a sacrifice of some right or advantage of the defense, he should have drawn the attention of the court to the same, and requested a different disposition, which he omitted to do.
    At the general term, the question relating to the burden of proof was sharply contested between the parties, and the court held that defendants were bound to prove their good faith and the payment of a valuable consideration for the bonds, and also held that there was no such evidence (49 Super. Of. 338). Held, that to grant a party a new trial after such a determination, to enable him to give proof of what he considered and treated as immaterial upon the first trial, although fully involved in the issues, cannot be sanctioned by authority, but on the contrary would establish a dangerous precedent. In every such case a party must be held bound by the course and action pursued by his counsel.

      Decided April 7, 1884.
    Before Sedgwick, Ch. J., Freedman and O’GI-orman, JJ.
    Appeal from order denying defendants’ motion for a new trial on the ground of surprise, inadvertence and excusable neglect.
    The facts appear in the opinion.

      W. M. Safford, for appellants.

      Peekham & Tyler, for respondent.
   By the Court.—Freedman, J.

This action is for the conversion of certain bonds belonging to the plaintiff which were stolen from it. The defendants claim to have purchased the bonds, bona fide, in open market, and for full value. The issues were tried by the court and a jury on December 6, 1882, and a verdict was directed in favor of the plaintiff for the sum of $2,496.45, subject to the opinion of the court at general term.

The case was argued at the general term March 9,1883, and thereupon j udgment absolute ordered for the plaintiff upon the verdict on the ground that the defendants had failed to show that in purchasing the bonds they parted with a valuable consideration.

The defendants then moved at special term for á new trial, in order to be enabled to prove, as matter of fact, that they did actually pay a valuable consideration on the faith of the bonds and the amount thus paid ; and the alleged grounds of the motion were surprise, inadvertence and excusable neglect, in consequence of which the defendants failed at the trial to prove the facts referred to as they should, and could have proved them. The motion was denied, and the present appeal is from the order of denial.

In view of the circumstance, that the facts sought to be proven upon a new trial were directly involved in the main issue litigated upon the former trial, and, if they existed, should have been then and there established, it is a serious question whether the motion was not too late in any aspect of the case. It is for the interests of the public that controversies should come to an end, and hence, if a party having an election to pursue one of several courses, adopts one of them at a stage of the litigation at which the election must be made, he is deemed to have waived all others. Controversies never would come to an end, if this rule were net enforced. Hence a new trial is not granted, simply because, after and in consequence of the action of the general term, it is ascertained that by inadvertence or neglect a mistake was made at the trial, or a surprise suffered, which, had it been known how the general term-would decide the law of the case, might have been guarded against

But in view of the serious consequences involved, I deemed it best to review and pass upon the merits of the motion made below..

The motion was substantially made on mere affidavits, and the pleadings of the action, for although the order to show cause gave both parties liberty to use, on the hearing, the minutes taken by the stenographer on the trial, the said minutes contained nothing of value to the moving parties; and the claim of surprise, inadvertence and excusable neglect was sought to be substantiated by the statement resting almost exclusively upon the affidavit of defendant’s counsel, that he, the.said counsel, omitted at the trial to prove the actual payment of a valuable consideration on the faith of the bonds, and the amount thereof, in consequence of statements made by plaintiff s counsel to the effect that he (plaintiffs counsel) did not attack the good faith of the defendants: If this statement had been made as alleged, it would not have availed the defendants, for they had no right to be misled thereby, inasmuch as good faith and the actual payment of value on the faith of the bonds, were both necessary to the establishment of their defense, and because plaintiff’s counsel was under no duty to inform the defendants specifically and accurately as to the exact requirements of their defense. But the plaintiff showed, by an overwhelming number of opposing affidavits, that the statement was not made as claimed, and that what was said was of such a character as to afford no ground whatever for complaint.

It has also been insisted that defendants’ counsel was misled at the trial by the action of the trial judge in ordering a verdict, subject to the opinion of the court at general term. This claim is equally untenable. Both sides had given all the testimony they wished, and there was no intention on the part of the judge of putting the case in a position where either side would waive any right or question. If either side thought that the disposition made involved a sacrifice of some right or advantage, the attention of the court should have been called to it, and a request should have been made for a different disposition. But nothing of this kind was done.

Moreover, the counsel for the defendants started, at the trial, to prove the payment of value on the faith of the bonds and the amount thus paid. He did so by means of a witness who, in the end, was forced to admit that personally he knew nothing of these facts, in consequence of which admission his testimony upon these points was stricken out, upon motion, as hearsay. This was quite a forcible reminder to defendants’ counsel to bring forth legal evidence, if he had any.

• And finally it clearly appears that, throughout the trial, the counsel for the defendants acted upon the assumption that the burden was on the plaintiff to prove that the defendants did not act in good faith, and did not pay a valuable consideration on the faith of the bonds. He therefore put in only so much testimony as he thought necessary under his theory. The plaintiff’s counsel, on the other hand, contended that all he had to prove was the ownership of the bonds and their larceny. He made no concessions, and waived no right which the plaintiff might claim upon the "evidence, though the greatest stress may have been laid on the claim which the general term ignored, that the defendants purchased the bonds after maturity. Certain it is, however, that before the general term, upon the case as made by the evidence, the question relating to the burden of proof was sharply litigated by both parties. The general term sustained the contention of plaintiffs’ counsel as to the burden of proof, and holding that there was no evidence on the part of the defendants that they liad paid a valuable consideration on the faith of the bonds, ordered judgment absolute for the plaintiff. upon the verdict. To grant a party a new trial after such determination in order to enable him to give proof of what, upon the first trial, he considered and treated as immaterial and irrelevant, though involved in the issues, would not be sanctioned by authority, but, on the contrary, would establish a dangerous precedent.- For in every such case- the party must be h.eld bound by the course pursued by his counsel. If the rule were otherwise, all a defeated party would have to do in order to obtain a new trial, would be to retain new counsel and start a new theory.

There having been no surprise, inadvertence or excusable neglect at the trial within the rules applicable to a motion for a new trial, the motion was properly denied. It was neither then made to appear, nor does it appear now, that the court and the counsel on both sides had assumed, and on the trial had acted upon the assumption, that the defendants had parted with full value on the faith of the bonds. 'Besides no case can be found in which an appellate court, assumed a fact to exist for the purpose of reversing a judgment.

The order appealed from must be affirmed, with costs and disbursements.

O’Gorman, J., concurred.

       See 49 Super. Ct. 338.


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    NORMA L. NICHOLS, Respondent, v. WILLIAM D. NICHOLS, Appellant.

      Decided April 7, 1884.

      Stay of proceedings—non-payment costs former action—action hy wife for limited divorce.

    An action for limited divorce brought by the wife, March 10, 1882, for cruel and inhuman treatment, was dismissed with costs against plaintiff, and succeeded by an action for divorce because of an alleged abandonment on March 0, 1882, the complaint also alleging the failure by the husband to support the plaintiff and their child since November, 1882. Held, that if the second action rested wholly on the allegation of the abandonment on March 6, 1882, under Hepburn v. Hepburn (54 How. 466), the latter action should be stayed till payment of the costs of the former action; but the allegations as to a failure to support, since November, 1882, show that plaintiff may have rights which cannot be withheld from her, because if they exist, they accrued since the beginning of the first action and exist independently of the matter there litigated.
    Before Sedgwick, Ch. J., and Freedman, J.
    Appeal from order denying motion for stay of proceedings.
    The facts appear in the opinion.

      Lawrence & Waehner, for appellant.

      Charles S. Spencer, for respondent.
   By the Court.—Freedman, J.

This is an appeal from an order denying defendant’s motion to stay all proceedings on plaintiff’s part in this action, until the costs of a former action are paid. The parties are husband and wife. The former action was brought March 10, 1882, by the wife fcma limited divorce, upon the ground of cruel and inhuman treatment by the husband, and it resulted in a judgment dismissing the complaint, upon the merits with $1,315.48, costs to be paid by the wife. The present action is brought for abandonment on March 6, 1882, and subsequent failure to support. Both actions were brought in this court. The defendant claims that neither was brought in good faith, and that each was brought simply for the purpose of extorting money. In respect to the first he certainly established, on the hearing of the motion, that it was so much without any foundation and that in it he was so unjustly subjected to great expenses and sacrifices, that the referee, on dismissing the complaint on the merits, after a lengthy trial, felt compelled to award, and the court, on the confirmation of the report, felt constrained to confirm, a personal judgment against the plaintiff as wife, fot costs amounting to $1,315.48. These considerations, in connection with the other facts detailed in defendant’s affidavit, presented a case which would come within the reasoning, if not the decision, of Hepburn v. Hepburn (54 How. 466), if the' second action rested wholly and exclusively on the alleged abandonment on March 6, 1882. But the second action has no such narrow foundation. True, the plaintiff starts with the allegation that on the day referred to, the defendant abandoned her, but she then proceeds and assigns as an additional ground the defendant’s total failure and refusal since November 1, 1882, ‘to support her and her infant child, the issue of the marriage between the parties, and left in her charge and care, and his failure and refusal to make any provision for her and the child or either of them. And above the conflict of statements between the parties, which the affidavits disclose, there does stand forth the fact which the defendant did not attempt to dispute, that since November 1, 1882, he did not provide for his wife and child or either of them. Under the circumstances the plaintiff may have rights which can not be withheld from her, discredited as she stands before the court by the result of the first action, because, if they exist, they accrued since the commencement of the first action and exist independently of the matter there litigated. In the ascertainment and determination of these rights of the plaintiff, it may become important to inquire and determine whether under all the circumstances the defendant abandoned the plaintiff or whethei\the plaintiff abandoned the defendant, and the fact as eventually found may form an important element in the determination of the liability of the defendant for the support of his wife and child, or either of them, and yet it may not be wholly decisive of it.

The motion for a stay of proceedings was therefore properly denied, and the order appealed from should be affirmed with costs.

Sedgwick, Ch. J., concurred.