author: Parker, J.:

text:
    Barstow Stove Company, Appellant, v. Albert M. Darling, as Administrator, etc., of Sadie Wilmerding, Deceased, Respondent.

      Attachment — sufficiency of an affidavit by an officer of a corporation, which does not allege that he was such at the time in question. ‘

    An affidavit,to procure a warrant of attachment, made by an officer of a corporation, is not necessarily defective because it omits to allege that the affiant was such officer at the time the indebtedness in question was incurred. The positive assertion by the affiant of personal knowledge of all the facts essential to the statement of a cause of action coupled with his statement that he is the manager and agent of the corporation having general charge and management of its business within the State, is sufficient to support a warrant of attachment issued thereon.
    Appeal by the plaintiff, the Barstow Stove Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of September, 1891, vacating a warrant of attachment obtained by the plaintiff in the action.

      George M. Pettit, for the appellant.

      Timothy M. Griffing, for the respondent.
   Parker, J.:

The decision of this court in Manufacturers’ National Bank v. Hall (60 Hun, 466) does not support the order appealed from, which vacates a warrant of attachment.

It was not held in that case that an affidavit by an officer of a corporation is necessarily defective because it omits to allege that the affiant was such officer at the time the indebtedness alleged was incurred.

The defects in the affidavit in that case were pointed out in the prevailing opinion as follows : “ The affiant nowhere states that he had any knowledge of the financial affairs of the appellant corporation, or that he had any connection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs.” “We do not know even from the papers as to whether he was connected with the company at the time of the transactions alleged in the affidavit.”

In this case it not only appears affirmatively that the affiant had knowledge of the financial affairs of the corporation in this State where the cause of action arose, but the inference is justified that he was such officer at the time the defendant became indebted to the plaintiff. The affidavit asserts that deponent “ is the manager and agent of the Barstow Stove Company, the plaintiff in the above-entitled action, in the State of New York, and has the general charge and management of the business of said plaintiff carried on within said State.” And after stating positively how the indebtedness arose and when, the amount of the original indebtedness and the sum remaining due and unpaid at the time of the commencement of the action, the affidavit continues: “ That plaintiff is justly entitled to recover of the said defendant the said sum of two hundred and seventy-four dollars and sixteen cents, with interest thereon from June 5th, 1891, over and above all set-offs and counterclaims, and deponent Jenows personally that there are no set-offs or counterclaims existing in favor of the said defendant to the said indebtedness.”

But if the inference is not required that he was the agent and manager of the corporation at the time of the transactions described, still the positive assertion of personal knowledge of all the facts essential to the statement of a cause of action, considered with the statement of his official connection with the plaintiff, was sufficient to support the warrant of attachment issued. (Essex County Bank v. Johnson, 16 N. Y. Supp. 71.)

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


source: Caselaw Access Project

author: Parker, J.: Yan Brunt, P. J.: Barrett, J.:

license: Public Domain

text:
    Edwin Gomez and Others, Appellants, v. Horatio Gomez, as Trustee of the Estate of Hetty Gomez, Deceased, Respondent, Impleaded with Others.

      Trust — conveyance by the trustee to the remainderman, unnecessm'y — covenant of renewal of lease beyond the trust period — proper pa/rties to a judgment directing it — the omission of the covenant of renewal from the first of the two renewal leases is immaterial.

    Where a trust deed provides that, at the death of the life beneficiary, the trustees shall convey the property held by them in trust to a person designated, or to one to be appointed in a designated manner, the trust does not continue until such conveyance be made by the trustee, but the death of the life beneficiary itself operates not only to terminate the trust, but also to at once vest in the remainderman the title to the real estate forming the corpus of the trust estate, a formal conveyance by the trustees being wholly unnecessary.
    The trustees are, in such case, without authority, of their own motion, to make a covenant during the continuance of the trust which shall entitle a lessee of the corpus of the trust to demand and receive renewal leases after the expiration thereof.
    The fact that the life beneficiary signs the original leases of the trust estate, which contain covenants as to renewals thereof which may extend beyond the period of the trust, will not bind her appointees in whom the trust estate vests upon her death, where the instrument creating the trust (while it gives to the life tenant all the net income of the property) gives her authority over the property itself to do one thing only, namely, to designate in the manner provided by the trust instrument who shall have the trust property after her death, and in default of her making such appointment the deed of trust itself determines in whom the title to the property shall vest.
    Certain real estate was conveyed by deed to trustees, in trust, to pay a person therein designated all the rents, issues and profits of the premises during her life, and upon her death to convey the said premises to such persons as the life beneficiary therein named might in and by her last will and testament, or by appointment in the nature thereof, nominate and appoint, and in default of such last will and testament or appointment, then to all the lawful issue of such life beneficiary then living.

      An action was instituted in the Court of Chancery by the life tenant and her husband, against the trustees named in such deed, and the children of the life beneficiary, then in being, for an adjudication as to the right of such trustees to make leases and renewals of leases for a long term of years. The suit resulted in a decree in which it was, among other things, adjudicated that the trustees, their survivors and successors, should have full power, with the consent of the plaintiffs in such suit, or the survivor of them, to make and execute valid leases of the trust premises for the term of twenty-one years, with covenants of renewal for several successive terms of twenty-one years, not exceeding three such additional terms.

      Held, that when such decree was made the Court of Chancery had jurisdiction not only of the subject-matter presented by the complaint, but also of all persons necessary to make a decree construing the instrument and instructing the trustees as to their duty in the premises, and that there were no other persons who could properly have been made parties to the suit. (Van Brunt, P. J., dissenting.)
    That the parties to such suit could not attack such decree collaterally, and so long as it stood unreversed and unopened, a party to the suit could not raise the question as to whether the court should have authorized the making of leases and renewals such as might and probably would exceed the trust term. (Van Brunt, P. J., dissenting.)
    To give a lease upon a piece of real estate does not prevent the alienatipn of such property, and where the covenants contained in an original lease of real estate entitle the lessee to three renewals thereof, the omission of such covenants in the renewal of a lease so given is an immaterial circumstance, as the lessee, under the original lease, has the right to the renewals therein specified.
    Appeal by the plaintiffs, Edwin Gomez and others, from an interlocutory judgment of the Supreme Court in favor of the defendant Horatio Gomez, entered in the office of the clerk of the county of New York on the 25th day of May, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining said defendant’s demurrer to the complaint.

      Hector M. Hutchings, for the appellants.

      Michael H. Qardozo, Edga/r J. Nathan and John A, Straley, for the respondent.
   Parker, J.:

This suit is.brought on the equity side of the court to obtain an adjudication that certain of the defendants are not entitled, as matter of law, to a renewal for twenty-one years of the five several leases described in the complaint, and to restrain the defendant Horatio Gomez from executing to the other defendants a renewal of such leases.

The Special Term sustained the demurrer interposed by the defendant Horatio Gomez, the ground of which is “ that the complaint does not state facts sufficient to constitute a cause of action.” Such of the facts as are necessary to present the principal questions discussed on this appeal are as follows : In May, 1831, Harmon Hendricks, then the owner of certain real estate in the city of New York, conveyed the same by deed to three persons in trust, to pay Hetty Hendricks all the rents, issues and profits of the premises described, and to convey the said premises by full and sufficient conveyances in law to such persons as she, the said Hetty Hendricks, might in and by her last will and testament, or by appointment in the nature thereof, nominate and appoint, and in default of such last will and testament or appointment, then to all the lawful issue of said Hetty Hendricks then living, as tenants in common and not as joint tenants.

Ten years later Hetty Hendricks, then the wife of Aaron L. Gomez, together with her husband, instituted a suit in the Court of Chancery, in this State, against the trustees under such deed for an adjudication as to the right of the latter to make leases and renewal of leases for a long term of years. The defendants consisted of the trustees and the children of Hetty Gomez, among whom was this plaintiff, Edwin Gomez, then an infant. The suit resulted in a decree bearing date October 21,1831, in which, among other things, it was adjudged “ that the said trustees, Solomon I. Isaacs, Uriah Hendricks and Henry Hendricks, and the survivor and survivors of them, and any trustee and trustees hereafter substituted, shall have full power, with the consent and approbation of the complainants, or the survivor of them, to be expressed by their, his or her legal execution and acknowledgment of the leases hereinafter mentioned, to make and execute valid leases of the premises described in the bill of complaint and the schedule thereunto annexed, or any part thereof, for the term of twenty-one years, with covenants of renewal for several successive terms of twenty-one years (not exceeding three such additional terms) reserving an annual rent to be paid quarterly for the first term of about five per cent upon the value of the pi’operty, * * * and that the rent reserved annually for the next ensuing term be at the rate of five per cent upon the valuation so made thereof, and with such other covenants and upon such conditions as the said trustees in their discretion shall deem proper and shall consider most advantageous to the interests of the complainant Hetty Gomez and her children.”

The trustees promptly availed themselves of the permission obtained in the decree, and by leases bearing the date next succeeding that of the decree, in which the trustees were named as parties of the first part, John Peters (the lessee) of the second part, and Hetty and Aaron L. Gomez of the third part, they leased the premises for a term of twenty-one years, with covenants of renewal for three successive terms of twenty-one years each. The lessee entered into possession, and at the expiration of the term renewal leases were executed, each for a period of twenty-one years. And when such period had expired, still other renewal leases of twenty-one years were executed.

The period of the second renewal has about expired, and Hetty Hendricks, for whose benefit the trust was created, has in the meantime died, leaving a last will and testament, which has been duly probated, in and by which she has exercised the power of appointment conferred upon her by the original trust deed.

The plaintiff, Edwin. Gomez, is one of the beneficiaries in the estate by virtue of the exercise of the power of appointment in his behalf by his mother. He insists that the trust terminated upon the death of Hetty Gomez, at which time the property became vested in the appointees designated in Hetty Gomez’s will; That at the latest moment of time the trust was at an end, when the trustees, by appropriate conveyances, deeded the property to the appointees.' He contends that there is no power in the trustees to make leases of the property after the trust has terminated, nor power in the court to authorize the trustees to do so. And, further, that the power does not reside in the trustees to make a covenant to renew a lease which shall bind them, or their successors to the legal estate, in the event that between such dates the trust shall come to an end by reason of the death of the beneficiary. Nor, asserts the appellant, could the court empower the trustees to make such a lease binding and enforcible.

There are cases, such as Newcomb v. Ketteltas (19 Barb. 608) and Greason v. Keteltas (17 N. Y. 491), which are occasionally cited as supporting the authority of trustees to renew a lease after the death of the beneficiary of the trust, if done in pursuance of a covenant, in the original lease to make such renewal. These cases arose under a trust created prior to the enactment of the Revised Statutes which effected a radical change in the law of trusts.

In Matter of McCaffrey (50 Hun, 371), in which it was held that unless expressly authorized by the trust deed, a trustee is without power to make leases extending beyond the trust term, and, if he= attempts it, the lease is invalidated by 'the death of the beneficiary, the Keteltas cases (supra), are considered, and the reasons given why they should not be held to be in conflict with the doctrine of that case. The consideration which they receive meets with our approval, and, therefore, justifies the omission of them further discussion. It would be strange indeed if the rule should be otherwise than as asserted in Matter of MeOaffrey, for then, would the trustee be clothed with authority during the life of the trust to-insert in a lease covenants of renewal for a given number of terms, which would o]3erate to deprive the owner of the property, at the-termination of the trust, of its possession and control.

The trustee would, in other words, have the power to fasten upon the estate for a long series of years, a lease which might become a very serious burden to the owners. Courts have been careful not to permit an extension of the control of trustees beyond the happening of the event which measures the trust term. Where, as in this case, the trust instrument provides that at the death of the life beneficiary the trustees shall convey the property held by them in trust to a person ,designated, or to one to be appointed in a manner provided, it is held that the trust does not continue until such conveyance be made by the trustees, but, on the contrary, that the death itself operates not only to terminate the trust, but to vest the title to the real estate at once, a formal conveyance by the trustees being wholly unnecessary. (Watkins v. Reynolds, 123 N. Y. 211.) We are, therefore, in accord with the appellant, in so far as he contends that trustees, in the absence of specific authority in the trust instrument, are Avithout authority of their own motion, to make a covenant during the life of the tru§t, which shall entitle the lessee to demand and receive renewal leases after its expiration.

We are further of the opinion that the assertion is not well founded which has been made in this case, to the effect that, because Hetty Gomez, in whom was lodged the power of appointment conferred by the trust deed, signed the original leases containing covenants as to renewals her appointees- as such are either bound by or legally affected by such action.

The trust as created gave to her all of the net income of the property, but over the property itself she was given authority to do one thing only, she could designate in the manner provided by the trust instrument who should have it after, her death, but in default of her making such an appointment the deed of trust vested the property. Beyond being entitled to receive the income from the trustees, and to exercise the power of appointment, she was without any authority whatever over the property. She could not mortgage or otherwise incumber it, even though the form which the incumbrance should take should be that of a lease for a term of years at an inadequate rent.

Whether the Court of Chancery, which made the decree, had power to authorize the lessors to covenant for the giving of renewal leases for a period which it was certain would extend beyond the life of the trust presents a different question.

That such a power should rarely if ever he exercised will he readily assented to. That the authority resided in the Court of Chancery to direct trustees generally as to the manner in which they should discharge the duties resting upon them as such, in the absence of specific instructions in the trust instrument, lias always been recognized. Indeed, it constitutes one of the acknowledged heads of equitable jurisdiction. The deed of trust in question did not expressly confer upon the trustees authority to make leases, and the object of the suit instítutéd by Hetty Gomez and her husband was to obtain an adjudication as to the rights of the trustees to make leases and renewals of leases for terms of years.

The plaintiff was entitled to the whole of the income during all her life, and -she- was necessarily, interested in having the property go leased as to produce the largest possible amount of rent. By means of an appropriate complaint she presented to a court having jurisdiction to direct the manner in which the trustees should execute the trust committed to them, the question whether they should be authorized to lease the property for a term of years, with the right of several renewal terms of like duration.

The result was a decree, from which we have already quoted, authorizing the making of such a lease as the trustees did make.

The complaint does not inform us what were the special facts which were presented to the court for the purpose of inducing it to authorize the making of a lease and renewals covering so many years. "Whatever they were, they must have strongly impressed Hetty Gomez, who was entitled to the income for life and the right to say who should have the property after her death. She was a mother and quite likely to think of her children as the owners of the property at a subsequent but not far distant time. A situation can readily be supposed which would have greatly advantaged her as owner of the life estate as well as her appointees. Assuming that the property by reason of the absence of buildings would produce but little income, and, further, that there was no money available for the erection of new buildings, a lease for a term of such length as to induce the lessee to erect buildings, with a substantial increase in the annual income of the property, might prove very helpful to the beneficiary for life, and of substantial advantage as well to those in whom the entire estate would become vested at her death.

But as we view the question presented, we have no occasion to inquire into the facts which were presented to the court, and upon which its decision was founded, for when the decree was made it had jurisdiction not only of the subject-matter presented by the complaint, but also of all persons necessary to make a decree construing the instrument, and instructing the trustees as to their duty in the premises.

Before the court, either as plaintiffs or defendants, were the trustees ; the then born children of the life beneficiary, to whom the property would go in the event that she should omit to exercise the power of appointment; the beneficiary, Hetty Gomez, and her husband. There were no others who could have been properly made parties to the suit.

The infants, among whom was this plaintiff, Edwin Gomez, appeared by guardian ad litem, who was heard on the application for the decree. Now, it is quite clear that under the circumstances attending the granting of the decree, and to which we have referred,, the parties to that suit cannot attack the decree collaterally. So-long as it stands unreversed and unopened a party to it cannot raise the question whether the court ought to have authorized the making of the lease, and such a number of renewals as might, and likely would, exceed the trust term. If we are right in the position taken it is unnecessary to consider further the proposition intended as a challenge to the authority and binding force of the decree, but we may say in passing that the contention of the appellant, that the granting of the lease was void, because a suspension of the power of alienation for more than two lives in being, is wholly without merit. To give a-lease upon a piece of real estate does not prevent the alienation of such property. Nor is it apparent how Cuthbert v. Chauvet (136 N. Y. 326) can under any circumstances be made available to appellant. It is true that the case points out that the Supreme Court, may not compel a trustee to consent to a destruction of the trust — a proposition certainly not applicable here.

In 'Outhbert’s case the court, after asserting that courts of chancery have always exercised a supervisory power over the management of trust estates, and the conduct of trustees, asserts that save in exceptional cases they have never asserted the power to dissolve a. trust before the expiration of the term for which it was created. In that case the destruction of the trust had not only been attempted,, but accomplished, so far as the judgment of the Supreme Court was. concerned.

The judgment had been based substantially upon the assent of the-parties to the action, which was one of partition. This judgment tbe court held to be expressly prohibited by that part of the Statute-of ITses and Trusts which declares that every sale, conveyance or other act of the trustee in contravention of the trust shall be absolutely void, and that the beneficiary cannot assign or in any manner dispose of his interest. This statute, the court held, was intended to take away the power of the beneficiary and of the trustees to-alienate the trust property, even with the approval of the court.

This was the point of the decision. In this case there was no eftort in hostility to the trust. The right to lease the property for the largest amount of rent obtainable during the life of the beneficiary is not questioned. Indeed, this was the duty of the trustees,. and had the lease provided that it, and any renewals of it, should terminate upon the death of Hetty Gomez, its legality would have been admitted.

The criticism made here is that an attempt has been made to fasten a lease upon the property after the expiration of the trust.

Such an act it is clear does not come within the condemnation of the provisions of the statute which were the subject of consideration in Cuthiert’s case.

Appellant further insists that as the leases of 1852 and 1813 do not contain covenants of renewal the lessee is not entitled to the third renewal, which the lessor in the original lease covenanted to give.

The position of the learned judge at Special Term, which was, in substance, that the covenants of renewal contained in the lease of 1831 entitled the lessee to three renewals of each lease, and that the omission of such covenant in the renewals granted was an immaterial circumstance, has support in Kearney v. Met. E. R. R. Co. (129 N. Y. 76), cited by him.

But for still another reason are the covenants of the “original lease binding and enforcible.

The original lease has been continued in force and in effect incorporated into and made a part of each renewal by the insertion of a clause in the same general form as the following: “ It is hereby mutually declared and understood by and between the parties hereto, that this present Indenture of Lease is made and executed, and given and accepted by the said parties, as and for the lease or renewal for the third term of twenty-one years, provided for by a certain Indenture of Lease hereinbefore mentioned, bearing date the 1st day of November, in the year 1831, and recorded in the office of Register in Liber 280 of Conveyances, page 411.”

The judgment should be affirmed, with costs, with leave to amend within twenty days upon payment of such costs together with the costs awarded at Special Term.

Yan Brunt, P. J.:

I concur in the conclusion arrived at by Mr. Justice Parker that under the trust deed the trustees had no power to make the leases mentioned in the complaint in this action. But I do not agree that such power, not being conferred by the trust deed, could be given by any decree of tbe Court of Chancery or of the Supreme Court. The action which resulted in the judgment under which the defendants^claim to shield themselves was not an action for the construction of the trust deed, but to supplement the same by a decree of the court granting the trustees therein named powers which it is conceded were not conferred upon them by such deed.

I know of no authority in any court to supplement hy its decree for the benefit of a life tenant powers which were not conferred by the instrument creating the trust. An inspection of the decree entered in the Court of Chancery shows conclusively that this was the nature of the action and of the relief which was attempted to be given. The decree reads: This action having been brought to a hearing upon the bill and answer of the infant defendants (naming them), and the report of * * * one of the masters of this court, to whom it was heretofore referred, to ascertain and report as to the truth of the facts stated in the bill, and whether it was for the benefit of said infants that the prayer of the bill should -be granted.” This alone' shows that it was not an action for the construction of the trust deed. It then adjudges and decrees that the trustees, and the survivor and survivors of them, and any trustee or trustees hereafter substituted, shall have full power, with the consent and approbation of the complainants, or the survivor of them (the complainants being the life tenant and her husband), to make and execute valid leases of the premises in question for the term of twenty-one years, with covenants of renewal for several successive terms of twenty-one years, making eighty-four years in all.

In other words, the court attempted to confer powers upon the trustees which the original trust deed, it is admitted, did not do. It seems to me that the Court -of Chancery had no jurisdiction to entertain any such action, and that infants cannot be deprived of the possession of real estate belonging to them hy any such proceeding upon the part of the life tenants for their own exclusive benefit.

But it is not necessary to determine this question. There is' another ground because of which the court should have refused to entertain this action. In cases of this description a court of equity only intervenes where there is no adequate remedy at law, or where irreparable damage will result. There is no allegation of irreparable damage in this complaint; and if there were it would not help the matter, because sucb could not be the fact. It is true that there is an allegation that there is no adequate remedy at law, but it is apparent that the plaintiffs have a complete remedy at law. If they are entitled to the possession of these premises, and the action of the trustees was without authority, they may bring their action in ejectment and recover possession and thus be completely vested with their rights. This would require no intervention of any court of equity. There is no evidence aliunde the records which affected the question; and it is a familiar principle that equity will not intervene to remove even what is claimed to be a cloud upon a title, where the defects appear upon the face of the record which are claimed to be such cloud. The assessment cases are familiar instances of the application of this rule. Therefore, there was no reason for any application to a court of equity. The plaintiffs could bring their action of ejectment and establish their rights, if they had any.

The judgment should be affirmed, with costs.

Barrett, J.:

In my judgment the Court of Chancery had jurisdiction to make-file decree in question. Whether such decree was proper, under the circumstances, was a question which that court had power to decide. Were it otherwise, a court of equity could not, under any circumstances, however pressing, authorize a lease to run after the death of the life beneficiary. Equity is not thus limited. It may act upon a state of facts which would not suffice to warrant the trustee in acting without its authority. To do so may be as essential for the protection and benefit of the remainderman as of the life tenant. And, in so acting, it is within its general jurisdiction. There is here no direct attack upon the decree. The action is simply to prevent the last renewal and proceeds solely upon the alleged lack of jurisdiction to make the decree which authorized it. If the appellants’ contention be correct, the apipointees may treat the decree as a nullity and'yet benefit by the situation as it comes to them thereunder. This would be inequitable. Standing solely upon the position that the decree was a nullity for lack of jurisdiction, I think the plaintiffs must fail. I, therefore, concur with Mr. Justice Parker.

Judgment affirmed, with costs, with leave to amend within twenty days on payment of such costs, together with costs at Special Term.


author: Per Curiam :

text:
    James Talcott, Respondent, v. The American Credit Indemnity Company, Appellant.

      Attachment — insufficient proof of plaintiff's residence and of the place where the cause of action originated.

    ■Wien neither the affidavit upon which an attachment was granted nor the complaint in the action contains any averment as to the residence of the plaintiff or the place where the cause of action-originated, the order granting the warrant of attachment must he reversed; recitals in an instrument referred to in the complaint cannot supply the place of such averment.
    Appeal by the defendant, The American Credit Indemnity Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1894, denying the defendant’s motion to vacate a warrant of attachment granted in the action on the 4th day of October, 1894.

      John V. Bouvier, Jr., for the appellant.

      T. G. Strong, for the respondent.
   Per Curiam :

Neither the affidavit upon which the attachment was granted nor the complaint contains any averments as to the residence of the plaintiff or the place of origin of the cause of action. The recitals in the instrument referred to in the complaint cannot supply the place of an averment, as they are mere words of description and not of allegation.

The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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

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


text:
    Nason Manufacturing Company, Respondent, v. Craft Refrigerating Machine Company, Appellant.

      Attachment — affidavit as to the affiant’s being an officer of the plaintiff corporation, supplemented by the complaint.

    The objection that no inference can be drawn from the statement that the affiant is the treasurer and general manager of the plaintiff, contained in an affidavit upon which a warrant of attachment was granted, that the affiant was in fact an officer of the corporation at the date of the transaction sued upon, is obviated when the complaint, which accompanies the affidavit, is referred to in it, and forms part of the papers on which the attachment was granted, contains a statement in its verification that the person making such affidavit, as treasurer of the plaintiff, had read the complaint, and “that the same is true of his own knowledge.”
    Appeal by tbe defendant, tbe Craft Refrigerating Machine Company, from an order of the Supreme Court, made at tbe New York Special Term on tbe 22d day of October, 1894, and entered in tbe office of tbe clerk of tbe county of New York, denying tbe defendant’s motion to vacate tbe warrant of attachment granted in tbe action.

      Frederick Seymour, for the appellant.

      Charles Be Han't Brewer, for tbe respondent.
   Per Curiam :

Tbe attachment was granted upon an affidavit and complaint, both of which were verified by Samuel Greason on September 5, 1894. Tbe cause of action was for goods sold and services performed during a period of about fifteen months prior to and ending on August 22, 1894. Mr. Greason swears in bis affidavit, used upon tbe attachment, that be is tbe treasurer and general manager of tbe plaintiff. Tbe two objections presented against tbe sufficiency of such affidavit and complaint are that there is no allegation that tbe goods were reasonably worth any sum, and that it is not stated that at the time tbe goods were sold and delivered or the services performed Mr. Greason had any connection with tbe plaintiff corporation.

Tbe first objection is disposed of in the opinion of tbe court below. In regard to tbe second, while it is true that in the affidavit the statement appears that Mr. Greason is the treasurer and general manager of the plaintiff, it is insisted that no inference from this can be drawn that he was such officer at the dates of the transactions sued upon. Whatever force there might be in this is met by the complaint, which accompanied the affidavit and was referred to in it, and was part of the papers on which the attachment was granted, and which in its verification contains the statement that as treasurer .of the plaintiff he has read the complaint, and “ that the same is true of his own knowledge.” The support thus furnished to the affidavit by the complaint in respect to both objections as to the sufficiency of the papers entirely disposes of and answers them.

We think that the order appealed from was right and should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    Benedickt Fischer and Others, Respondents, v. Berthold Blank, Appellant.

      Injunction order using word ‘ * and, ” — construed as if "or” were used — an erroneous action of a court does not establish want of jurisdiction.

    An injunction order forbade the defendant in an action from selling tea put up in packages having the shape of a parallelopiped inclosed in wrappers like, . or substantially like, that designated by the plaintiff’s exhibit 0, and from making'use in any way of the designation “Black Package Tea” in connection with the sale of tea.

      Held, that the word “ and,” as used in the injunction order, was used in a disjunctive and not a conjunctive sense, although the latter is the ordinary sense in which it is used;
    That the sale by the defendant of tea in packages and wrappers of the form enjoined was a violation of the injunction granted, notwithstanding the fact , that the words “ Black Package Tea ” were not put upon the packages.
    Although a Special Term of the Supreme Court does not follow the decision of the Court of Appeals in reference to the modification of an injunction order, that fact does not make its action void. The proper course for a person aggrieved by the action of the Special Term is to move to vacate its order, and if his motion is denied to appeal from the order denying such motion. If he disregards the order made by the Special Term he does it at his peril, for the court is not without jurisdiction of the matter; an erroneous action is never a ground for attacking the jurisdiction of the court.
    Appeal by tbe defendant, Bertbold Blank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of June, 189J, adjudging the defendant guilty of contempt of court.

      Olías. Qoldzier, for the appellant.

      Howlcmd Goa>, for the respondent.
   Yan Brunt, P. J.:

It is not necessary to discuss the question as to whether there was a violation of the injunction upon the part of the defendant. It is apparent from the conceded facts that such violation took place. It is idle to claim that it was the intention of the court, or that it was so understood by the defendant, that to constitute such a violation it was necessary that there should be a combination of all the things referred to in the injunction order. The order enjoins the defendant from selling, etc., tea, put up in packages having the shape of a parallelopiped, inclosed in wrappers like, or substantially like, that designated plaintiff’s exhibit C, and from making use, in connection with the sale of tea, of the designation “ Black Package Tea.” It is substantially admitted that the appellant violated the injunction by the use of packages and wrappers of the form enjoined; but, because he did not also put upon the packages the words “ Black. Package Tea,” it is urged that he did not violate the injunction upon the ground that all these things must combine in order to constitute such violation. It is perfectly plain from a reading of the order that the word “and” was used in a disjunctive and not in a conjunctive sense, although the latter is the ordinary sense in which it is used. The wrappers and form of package spoken of in the injunction were just as much a part of the plaintiff’s proprietary right as the use of the language which it is claimed the defendant did not use.

But it is urged that the court had no authority to enter the order which it is claimed was violated, upon the ground that the remittitur of the Court of Appeals did not authorize the issuance of any such order. It is apparent from the remittitur of tlie Court of Appeals that there was a modification made by that court of the injunction theretofore granted, and the court at Special Term attempted to enter a judgment in accordance with that remittitur. What it had before it does not appear; and if the court did not follow the decision of the Court of Appeals in reference to the modification of the injunction, that fact did not make its action void. The proper course for the defendant was to have moved to vacate the order, and, if that was refused, to appeal. If he disregarded the order, he did it at his peril. The court was not without jurisdiction; it was acting within its jurisdiction when it attempted to make the judgment of the Court of Appeals the judgment of this court. Erroneous action is never a ground for attacking the jurisdiction of the court.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Lippman Tannenbaum, Respondent, v. Gyulo Armeny, Appellant.

      Opinion and findings not coinciding, no reason for reversal — remedy for a misapprehension at the trial as to the issues — pleadings amended to support the judgment— election, dependent upon a Icnowledge of the facts — transfer of co-partnership pi'operty by one partner —remedy of the other.

    The fact, that the opinion filed by a justice before whom an action was tried and the findings signed by him do not coincide, in no way forms a ground for the reversal of the judgment, inasmuch as the opinion cannot be referred to for the purpose of showing the incorrectness of the findings upon which the judgment is based.
    If there has been any misapprehension during the progress of a trial in respect to the issues which are presented, which has been of detriment to either of the parties, the remedy is not by appeal from the judgment entered upon the decision rendered at the trial, but by motion for a new trial upon the ground that the moving party has been misled in his consideration of the issues presented in the pleadings, by the course which was taken by both parties at the trial.

      Where there is a discrepancy between the allegations of a complaint and the findings and judgment of the court the pleadings will be amended in order to support the judgment.
    In order that a party shall be bound by an election he must be made acquainted with all the facts pertaining thereto.
    Although co-partnership property be transferred to a third person by one of two partners, the other partner need not rely upon his action for damages; he has a right to compel a surrender of his share of the proceeds which have been received by his co-partner upon the sale of the partnership property.
    Appeal by the defendant, Gyulo Armeny, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of February, 1894, upon the decision of the court rendered after a trial at the New York Special Term, and also from an order made at the New York Special Term and entered in said clerk’s office on the 8th day of February, 1894, denying the defendant’s motion to amend his answer.

      Otto Horwitz, for the appellant.

      F. Bien, for the respondent.
   Yan Brunt, P. J.:

This action was brought to obtain an accounting between the plaintiff and the defendant as to certain alleged co-partnership transactions. As to some of these it was admitted that the parties were co-partners. But ujion the trial, as to the others, evidence was offered pro and con upon the question of co-partnership, and the case was submitted, it being conceded that if a co-partnership was found by the court an accounting would be necessary. When the learned court came to decide the case he filed a memorandum to the effect that under the pleading it was admitted that a co-partnership had been formed as to the subjects in controversy, the time of the duration of which was not specified, and that there was no evidence that the co-partnership ever was dissolved, and that neither of the parties could dissolve the co-partnership without the consent of the other, and in fact that there was no evidence that the co-partnership ever had been dissolved;. the memorandum further stated that he had found, as a matter of fact, that the mine in question was partnership property, and that there should be the accounting usual in actions of this kind. The attention of the justice having been subsequently called to the fact that there was evidence tending to show that the duration of the partnership was to be for a given time, in making his findings he found that fact. Subsequent to the filing of the memorandum above mentioned, and before the entry of judgment, an order seems to have been entered reciting the making of a motion upon the part of the defendant to amend his answer by denial of the paragraphs of the complaint referred to in the memorandum above mentioned, which order denied said motion. And from the judgment entered upon said decision and from said order these appeals are taken.

The fact that the opinion filed and the findings signed do not coincide, in no way forms a ground for the reversal of the judgment, because the opinion cannot be referred to for the purpose of showing the incorrectness of the findings upon which the judgment is based. If there has been any misapprehension during the progress of the trial in respect to the issues which are presented, which has been of detriment to either of the parties, the remedy is not by appeal from the judgment entered upon the decision rendered at the trial, but by motion for a new trial upon the ground that the moving party has been misled in his consideration of the issues presented in the pleadings by the course which was taken by both parties at the trial.

In the case at bar the court has found, as a matter of fact, the existence of the co-partnership. It does not appear upon the face of the finding that it was because of any admission contained in the pleadings that it arrived at such conclusion, and there was besides evidence in the case suificient to sustain the finding, and this court cannot interfere with it upon that ground.

It is urged that even if this be true the agreement was within the Statute of Frauds and, therefore, void. But there was evidence introduced which tended to show that there had been a partial performance of the agreement of co-partnership, and thus the agreement was taken out of the Statute of Frauds.

It is claimed that the amount alleged to have been paid by the plaintiff on account of the new enterprise was so insignificant that it could not operate in that direction. But the question of significance or insignificance depends upon the magnitude of the main subject, and in respect to that we have little or no information in this record. We think, therefore, under the findings which have been made, and which are justified by the evidence, that this judgment cannot be reversed.

It is further urged that this action will not lie in respect to the disputed property, as the court will not decree specific performance to perform and carry on a co-partnershij). But the relief winch is granted to the plaintiff in this action is not for the'specific performance of a co-partnership agreement, but for a winding up of the same and a division of the property upon the settlement of the accounts between the partners — an action which has become quite familiar to the legal profession and to the courts.

There seems to be no reason why, if the plaintiff could establish his rights as a co-partner, he should not have the relief which has been granted to him in this case.

It is urged that there is a material variance between the agreement alleged in the complaint and the proof adduced by the plaintiff, the plaintiff alleging no time for the co-partnership, and the court having found that it was to exist for one year, and that there were some discrepancies in the proof and allegations in regard to localities. These objections are of no avail upon this appeal, because if there is any discrepancy between the allegations of the complaint and the findings and judgment of the court, the pleadings will be amended in order to support the judgment.

It is also urged that a certain exhibit introduced in evidence should not have been admitted for the purpose of aiding the claim of the plaintiff as to the existence of a co-partnership. The circumstances under which this exhibit was signed by the defendant were given. They certainly tended to support the claim of the plaintiff that a co-partnership existed, and although the exhibit was not definite as to the terms of the co-partnership, yet it was competent evidence as an admission that there had been an agreement of co-partnership between the plaintiff and the defendant, no matter what the terms of such co-partnership might be. The attack, which is made upon the verity of the document, is one which the trial court considered, and he rightfully placed great weight upon it in determining the issue upon which it bore.

The claim upon the part of the defendant that, assuming that the plaintiff had established a partnership, the refusal of the plaintiff to have anything to do with the mines, after inspection of the samples submitted by defendant, constituted a dissolution of the partnership, if one existed, and left the defendant free to embark with others in the mining schemes, is not well taken, for the reason that there was not a disclosure upon the part of the defendant of the true condition of affairs, it being claimed upon the part of the plaintiff that the fact that the defendant had bought this mine was not disclosed by him;and, therefore, there was no occasion for the plaintiff to make any determination in regard to the matter. He only expressed his opinion in regard to the samples which were •shown. In order that a party can be bound by an election, he must be made acquainted with all the facts pertaining thereto.

Some point is made in regard to contradictory findings, and it is urged that a defeated party is entitled to have those taken which are most favorable to him and may rely upon them in aid of his exceptions. But the variances which it is claimed occur in the finding in no way assist the position of the defendant in regard to the matters in dispute and some of the contradictions claimed are neither apparent nor real.

The claim made that the co-partnership property having been transferred to another party by the defendant, the plaintiff must rely upon his action for damages, is not well taken. He has a right to compel a surrender of his share of the proceeds which have been received by the defendant upon the sale of the co-partnership property.

There are no other exceptions which it seems necessary to note, •and the judgment appealed from should be affirmed.

In respect to the order denying the motion to amend the pleadings, it is to be observed that it does not appear to have been made upon any papers. There is not even a notice of motion, so far as we have been able to discover in the record — simply a bald order denying an amendment of the- answer. No ground is presented for the granting of such a motion, and we can only imagine what the theory of the learned counsel was from what occurred upon the argument of the appeal from the judgment. As already intimated, if the defendant was entitled to any relief it should have been sought in a different manner, and the order should, therefore, be affirmed.

The judgment appealed from must be affirmed, with costs, and the order affirmed, with ten dollars costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs, and order affirmed, with ten dollars costs.


text:
    Ambrose J. Agate, Appellant, v. Caroline E. House, Individually and as Executrix of Ann E. Agate, Deceased, Respondent.

      Compromise of a claim — the amount paid cannot be recovered — release, to whom not available — rule of computation by a referee where both claim and counterclaim are allowed.

    If a person, to release himself from a claim made against him, personally pays a certain amount of money by way of compromise, he cannot, after it has been decided in another action to which he was not a party, that the claim against him was without foundation, recover the amount thus paid, either from the persons to whom he paid it, or from the person on whose account the claim was made against him.
    A person cannot avail himself of a release which was not made for his benefit, to-which he was not a party and towards the procuring of which he did not contribute.
    Where the claim of a plaintiff in an action is allowed, and the counterclaim of the defendant against the plaintiff is allowed, the correct rule of computation by a referee is to determine what sums were due bj each of the parties respectively to the other, as of a certain date, and then, upon ascertaining the difference, to allow interest upon such difference from such date to the date of his. report.
    " Appeal by the plaintiff, Ambrose J. Agate, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of August, 1893, upon the decision of the court rendered at the New York Special Term upon the coming in of the report of a referee adjudging that a certain deed was held by one John Agate as a mortgage, and that the plaintiff is entitled to redeem and have a reconveyanceof such property; that a certain conveyance executed by Ann Eliza, Agate remains subject to the -defendant’s right to the reimbursement of the sum found due and owing for the reimbursement of which the said premises were security, and be delivered to the plaintiff on payment to the defendant of the amount found due, and awarding costs to the defendant; and also from an order of the Supreme Court, made at the New York Special Term and entered in the said clerk’s office on the 1st day of August, 1893, denying the plaintiff’s motion to resettle, amend and modify the judgment entered herein, with notice of an intention to bring up for review on such appeal an order of the Supreme Court, made at the New York Special Term and entered in said clerk’s office on the 25th day of February, 1892, confirming the report of the referee; also said referee’s report; also the memorandum of opinion filed by said referee; also the order entered June 17, 1893, granting the defendant costs of the new trial; and also all the evidence, exceptions and proceedings had and taken before said referee.

      George W. Bhmt, for the appellant.

      Henry W. Taft, for the respondent.
   Per Curiam :

There have been numerous trials and three appeals herein, and it is not our purpose to consider anew the questions that have been settled. (See Agate v. Agate, 11 N. Y. St. Repr. 579.) On the last appeal to this court it affirmed the order denying the motion for a new trial, and affirmed the interlocutory judgment, except that part of it which declared that the indebtedness of William Agate to his father’s estate had been paid, which part it reversed, and ordered that a new trial be granted to determine if William Agate’s indebtedness to his father or his father’s estate had been paid, and if not, what amount is due said estate, and that the issue as to the payment of the indebtedness be referred back to the referee. The referee reported that the indebtedness had not been paid, and that the defendant was entitled to receive payment thereof; and after determining such indebtedness and interest thereon, and charging defendant with the rents received and interest thereon, he deducted the latter from the indebtedness of the plaintiff, which left a balance in favor of the defendant of the difference, which amounted to $11,083.21.

The appellant excepts to the method of computation, and states in his brief that “ if Ann E. Agate was entitled to interest on $7,143.97 to November 4, 1891, this plaintiff is also entitled to interest” on defendant’s indebtedness to the same date. In his statement of what the referee did, counsel has fallen into an error, because the referee computes the interest on the sums due by both plaintiff and defendant down to November 5, 1885, and after deducting one sum from the other, he allows interest upon the balance from 1885 down to the date of his report, which is a correct method of computation. In effect, what the referee did was to determine what were the sums due by each of the parties respectively to the other as of the date of November 5, 1885, and then, upon ascertaining the difference, to allow interest upon such difference down to the date of his report.

At the beginning of the reference the plaintiff objected to proceeding, upon the ground that the debtor’s claim, which was the subject-matter of the reference, was barred by the Statute of Limitations ; and this is urged again upon this appeal. This objection is disposed of, not only by the reasoning of the referee, but also by the terms of the order directing the reference.

Another question that was argued upon the former appeal, and is again urged, is that the indebtedness of 'William Agate to his father’s estate liad been fully paid and satisfied by allowing to him, with the consent of the legatees and heirs, his share in his father’s estate, which, it is claimed, Ann Agate was to hold for him. It is insisted, however, that in the light of the new evidence presented upon this question before the referee, he should have sustained appellant’s contention. The referee, as shown in his opinion, did consider the new evidence offered, and presenting as it did a question of fact, he has found against the appellant, and with his conclusion we see no just reason to interfere.

The serious question presented relates to the effect that should be given to the release executed by Ann Agate to Joseph Agate, executor of the father’s estate. It appears that in 1887 an action was commenced by George Y. House, as assignee of Ann E. Agate, to recover for rents of the premises here in dispute, which Joseph Agate had collected and sent to William in California. Judgment was rendered against Joseph Agate for upwards of $18,000, which, upon appeal, was reversed and a new trial granted. Before such new trial, however, Joseph Agate paid $7,500, and obtained from Ann Agate, Caroline E. House and George Y. House a general release of all claims against him; and this, it is claimed, should inure to the benefit of William and be resorted to as a shield to protect him from the payment of his indebtedness to his father’s estate. There is no evidence that any portion of this $7,500 was paid out of the rents received by Joseph ; nor was any portion of it contributed by William. It is true, as now determined, that Joseph was justified in paying over the rents that he, from time to time, received, to William, and could not have been obliged to account for them to Ann Agate. And this presents an instance of one making a claim against another which they settle and adjust between them. Then, because it subsequently appears that such claim never had a valid existence, a third party attempts to interpose a release thus obtained as a barrier to protect himself against the lawful claim of the person to whom the money was paid for such release. We think the respondent is correct in saying that, even if the $7,500 was paid solely in settlement of the suit of George Y. House against Joseph Agate for the collection of the rents, nevertheless, it does not appear that William Agate ever had to contribute any portion to secure the release. As it is now decided that William was entitled to the rents that Joseph had turned over to him, the latter could not compel a contribution by William of any portion of the amount thus paid. If Joseph, to release himself from the claim made against him personally, paid a certain amount of money by way of compromise, he cannot, after it has been decided in another action, to which he is not a party, that the claim against him was without foundation, recover the amount thus paid, either from the persons to whom he paid it, or from the person on whose account the claim was made against him.

There are other considerations urged which enforce the view that the release was never intended for William’s benefit, that he was never a pai’ty’ thereto, and, never having been obliged in any way to contribute, it is not available to him.

Many exceptions were taken to the rulings of the referee upon evidence, and to his findings and refusals to find, all of which, upon examination, present no legal barrier to the affirmance of the judgment. So far as this court is concerned, it has had this case before it in every possible shape, and after all the trials and proceedings, when at last it appears that the judgment is right, the court should not be astute- to find errors in rulings, or slight inconsistencies in findings, upon which to hang a reversal.. We think that the judgment should be affirmed, with costs.

Present —Yan Brunt, P. J., and Follett, J.

Judgment affirmed, with costs.


author: Pee Curiam :

text:
    In the Matter of the Estate of Benjamin Lord, Deceased. Augustus Cruikshank, as Trustee of the Estate of Benjamin Lord, Deceased, Respondent, v. Edward Van Ness and Another, Appellants, Impleaded with Gilbert M. Huested and Another.

      Practice motion — order to take testimony, to hear and determine — striking out, as untrue, relevant averments in affidavits.

    The court upon a practice motion has no power to make an order of reference to hear and determine; the only order which it can make is to direct a referee named to take the testimony and report with his opinion.
    A court has no authority to strike out from an affidavit relevant averments simply because they are claimed to be untrue.
    Appeal by the defendants, Edward Yan Ness and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, J.894, confirming the report of a referee and directing that a certain allegation contained in an affidavit submitted in opposition to a motion to remove a trustee and to compel him to give additional security, be stricken out and expunged as false and scandalous, with notice of an intention to bring up for review on such appeal an order made at the New York Special Term and entered in said clerk’s office on the 5th day of December, 1892, appointing a referee to hear, determine and report whether a certain judgment was procured by the fraud and deceit of the defendant Woodruff.

      E. O. Perlcins, for the appellants.
    A. E. Woodruff\ for the respondent.
   Pee Curiam :

The court upon a practice motion has no power to make an order of reference to hear and determine. The only order which can be made is to direct a referee to take the testimony and report with his opinion.

Upon the merits we are of opinion that the court had no authority to strike out relevant averments simply because they are claimed to be untrue.

The order should be i-eversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


author:
Van Brunt, P. J.:
      Eollett, J.:

text:
    Edith E. Tinker, Appellant, v. The Metropolitan Elevated Railway Company and Another, Respondents.

      What description of real estate eateries title to the center of a street.

    A deed conveying real estate contained the following description:
    “All that certain lot, piece or parcel of land situate, lying and being on the northerly side of Murray street, in the third ward of the city of New Fork, being part of the land heretofore belonging to the rector and inhabitants of the City of New York, commonly called the Church Farm, and distinguished on a map or chart thereof by the number 380, being the eastern part of said lot and bounded as follows: Southerly in front by Murray street, westerly by the premises heretofore conveyed by Jonathan Sturgis and Mary P., his wife, to Francis W. Hutchins, northerly'in the rear by lot No. 381, containing in breadth in front and rear 22 feet and in length on each side 100 feet, being the same premises now known by the street number 43 Murray street.”

      Held, that such description carried title to the center of the street upon which the real estate conveyed abutted.
    Appeal by tbe plaintiff, Edith E. Tinker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of May, 1894, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.

      &. A. Forster, for the appellant.

      G. T. Aldrich, for the respondents.
   Van Brunt, P. J.:

This is one of the class of actions with which the court has become somewhat familiar, brought to recover damages because of the construction of the elevated railway in front of and upon the plaintiffs’ property, and the appropriation of the easements appurtenant thereto.

Without considering the many points which have been raised by the appellant, and which are claimed to be fatal to the judgment herein, it will only be necessary to call attention to one radical error which has pervaded such judgment, which not only may have worked, but probably did work, great disadvantage to the plaintiff in the consideration of her claim for damages because of the rights appropriated by'the defendants in the constriction of their railroad.

The plaintiff claimed in her complaint that she was the owner of the fee to the center of the street. She requested the referee to find this fact, which was refused. This claim was based upon the description of the jn’emises contained in the deed through which the plaintiff derived title. It is as follows : “ All that certain lot, piece or parcel of land situate, lying and being on the northerly side of Murray street, in the third ward of the city of New York, being part of the land heretofore belonging to the rector and inhabitants of the City of New York, commonly called the Church Farm, and distinguished on a map or chart thereof by the number 380, being the eastern jjart of said lot, and bounded as follows: Southerly in front by Murray street, westerly by the premises heretofore conveyed by Jonathan Sturgis and Mary P., his wife, to Francis W. Hutchins, northerly in the rear by lot No. 381, containing in breadth in front and rear 22 feet and in length on each side 100 feet, being the same premises now known by the street number 43 Murray street.”

That such a description carries the fee to the center of the street has been too long the settled law of this State to need the citation of authority. The referee, therefore, erred in refusing to find this fact.

The judgment appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event, and the order of reference vacated.

Parker, ■ J., concurred.

Eollett, J.:

I do not think that the reason assigned is sufficient to reverse the judgment. It is true that the referee refused to find as a fact that the plaintiff owned the fee of Murray street to the center thereof, but it may be that his refusal was upon the ground that he had already found this fact, as he had in effect. See the fourth finding of the facts found, j>age 30, wherein he sets forth a copy of the desci’iption of the plaintiff’s deed, from which it appears that the plaintiff owned the fee to the center line of the street. He finds that the plaintiff is now seized in fee and possessed of all of the premises embraced within that description. This seems to me to cover the point, and that it was not error for him to refuse to find the fact upon the request of the plaintiff.

Judgment reversed and new trial ordered, with costs to appellant to abide event, and order of reference vacated.


author: O’Brien, J.:

text:
    Emma Keller, Respondent, v. Henry Feldman, Appellant.

      Judgment — conclusive whether pleaded or simply put in evidence — replevin, amount recoverable thereby a second time.

    The judgment of a court of concurrent jurisdiction directly upon a point presented is conclusive between tbe same parties upon the same matter coming directly in question in another suit, whether it be pleaded or be simply given in evidence under the general issue.
    Where a person gave another his savings bank book to secure the payment of the purchase price of certain real estate which he had contracted to purchase (the amount of the deposit represented by such bank book being in excess of the amount to secure the payment of which the bank book was given), and thereafter commenced an action of replevin to recover the bank book, and also a second action to cancel such contract of sale, and to recover the whole amount of the purchase price, which second action was tried first, and judgment rendered in favor of the plaintiff therein, canceling the contract for the purchase of such real estate, and awarding the plaintiff a judgment for the whole amount of the purchase price paid by him, including the amount represented by such bank book, the plaintiff is not entitled to have judgment in the replevin action for the whole sum in the bank.
    Appeal by tbe defendant, Henry Eeldman, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of the county of New York on the 4th day of April, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, awarding the plaintiff the possession of certain jiersonal property and fixing its value at $521.14, and also from an order made on the 2d day of April, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      John Henry Hull, for the appellant.

      Geo. F. Lcmigbein, for the respondent.
   O’Brien, J.:

In this action it was sought to replevin two savings bank books which had been given by plaintiff to defendant to secure to him the payment of $403.14. This amount was part of the consideration of the purchase of premises by plaintiff from defendant. • Subsequently plaintiff brought another action to rescind the contract for such purchase and to recover the whole purchase money, and succeeded. It thus appears that in the second action, which was the first tried, the plaintiff obtained a judgment for the entire purchase money, including the sum covered by the bank books, and in addition has another judgment in this action for an amount of money which was included in the first judgment. The question presented is, can the plaintiff recover twice for the same indebtedness ?

This is an action m rem to recover possession of the bank books, which called for $132.34, together with the accrued interest on $521.14, over and above the amount for which the appellant held the books. The latter could not draw the amount of money for which the books were delivered to him as security, for the reason that payment was stopped thereon by notice to the banks. Upon the trial the record in the equity action to rescind was introduced by the plaintiff herself, and it was made to appear that she succeeded not only in having the contract rescinded, but in obtaining a judgment for the money she had paid to the defendant, including the amount represented by the bank books.

There can be no question that upon such judgment being recovered, had the defendant served a supplemental answer setting forth the fact of such recovery, it would be a bar to this action unless, upon the trial, the plaintiff consented to permit the. defendant to draw the $403.14 for which she had obtained judgment against him. It might be that such former judgment, if not pleaded, would not be admissible, but, having been introduced by the plaintiff herself, we must give effect to the settled law that “ the judgment of a court of concurrent jurisdiction directly upon a point is conclusive between the same parties upon the same matter coming directly in question in another suit. And this whether it be pleaded or given in evidence under the general issue.” (Gardner v. Buckbee, 3 Cow. 120.)

In the demand and application for judgment in the equity action the plaintiff might have included only the moneys actually paid by her, and left out the amount represented by the bank books; but having elected to sue for the entire consideration, and treated the money represented by the bank books as actually paid, and having got a judgment against the defendant for an amount which included the moneys represented by the bank books, she was not entitled to have a judgment in addition for the whole sum in the banks.

This judgment should be reversed and a new trial ordered, with costs to appellant to abide 'event.

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

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


text:
    Gustavus A. Waeber and Another, Appellants, v. Gabriel Talbot and Others, Respondents.

      Attachment — amount of an undertaking given on its discha/rge — waiver of an objection thereto.

    If an undertaking given to discharge a warrant of attachment is conceded to he of the amount of the principal and interest demanded in the complaint in the action, together with the costs and expenses, it is sufficient; and, although it is in the power of the court to increase the amount, it is not bound to do so, in the absence of any facts showing that the plaintiff would be prejudiced unless such increase was made.
    If the plaintiff in an action, upon his motion to vacate an undertaking given by the defendant to discharge a warrant of attachment granted therein, stated that he would not object to the undertaking upon the ground of its amount, the order denying such motion will not be reversed upon appeal by reason of an error in the amount of the undertaking.
    Appeal by the plaintiffs, Gustavus A. "Waeber and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1894, denying the plaintiffs’motion to set aside the defendants’ undertaking given to discharge a warrant of attachment filed in said clerk’s office on the 28th day of September, 1894.

      F. De L. Sm/ith, for the appellants.

      Robert O. Ta/yler, for the respondents.
   O’Brien, J.:

An undertaking, given to discharge a warrant of attachment, was sought to be set aside upon the ground that the sum stated in the undertaking was not sufficient to protect the interests of the plaintiffs, under the provisions of section 688 of the Code of Civil Procedure. This section provides that the undertaking shall be in effect t£ that he will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The Sum so specified must be at least equal to the amount of plaintiff’s demand.”

The ’complaint and affidavits on attachment are not a part of the printed papers on appeal, and there is force, therefore, in the suggestion that the appeal should be dismissed because there is not sufficient before the court to determine whether or not the undertaking as filed conforms to the statute. The only paper upon which the plaintiffs moved below was an affidavit stating that the undertaking “ is limited by the amount $2,032, which is the sum demanded in the complaint exclusive of interest and costs of this action.” Upon the motion below the defendants called attention to the fact that through inadvertence the undertaking was less than the amount demanded by fifty cents principal and a few days’ interest. Although this is urged upon the appeal, it was not upon the motion below, and there being no contradiction of the statement that plaintiffs said that they would not object to the undertaking upon the ground of such error, they are not in a position to take that objection here.

Upon the merits, the undertaking being given for what was conceded by the pai’ties to be the principal and interest together with the costs and expenses, it was sufficient; and though it was in the power of the court, as stated in the opinion below, to increase the amount, the court was not bound to do so, in the absence of any fact showing that the plaintiffs would be prejudiced by such refusal. All that they are entitled to get is the amount of their demand, with interest and costs and expenses, and these are secured by the undertaking given.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. L, and Parker, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.:

text:
    In the Matter of the Application of Frances M. Peaslee, Respondent, for the Payment of the Legacies Bequeathed to Her under the Will of Martha K. Peaslee, Deceased; Hiram Hitchcock and Another, as Executors, etc., of Martha K. Peaslee, Deceased, Appellants.

      Surrogate's Court — when it has no power to decree an equitable set-off — right of a legatee to the possession of a legacy.

    A Surrogate’s Court has no equitable powers which will enable it to enforce the contingent claims of executors, arising out of an equitable set-off, against the absolute right of a legatee to the possession of a legacy bequeathed to her by the will of their testator.
    When the time for the payment of a legacy arrives, the legatee is entitled to the payment thereof, and, if a portion of the legacy has been paid to and received by such legatee, she is not compelled to wait for the payment of the remainder until the expiration of the time within which the Code of Civil Procedure prescribes that the legatee has the right to appeal from the decree admitting the will to probate.
    Appeal by Hiram Hitchcock and another, as executors, etc., of Martha II. Peaslee, deceased, from a portion of a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York'County Surrogate’s Court on the 14th day of May, 1894, directing them to pay the petitioner her legacy under the will of the' said Martha II. Peaslee.

      T. H. Magrath, for the appellants.

      W. If. Arnoux, for the respondent.
   Van Brunt, P. J.:

It ajjpeared that one Peaslee died in 1876, leaving a will which contained the following clause :

“I give to my daughter Fannie M. Peaslee $20,000 in money, or its equivalent in stocks, as my executor may decide, and $20,000 in trust, the same to revert at her death, if without issue, equally to my wife and my son.”

This $20,000 in trust was jiaid over to the said Fannie M. Peaslee, who lost the same. The persons entitled to this fund, in the event of Fannie M. Peaslee dying without issue, are Edward IT. Peaslee, to the extent of $10,000, and Edward H. Peaslee and Hiram Hitchcock, as executors of Martha II. Peaslee to the extent of $10,000. By the will of Martha K. Peaslee a legacy of $30,000 was bequeathed to Fannie M. Peaslee, of which sum $7,000 has been paid, and the order appealed from directed the payment forthwith of the balance of $23,000. After the will of Mrs. Peaslee had been admitted to probate Fannie M. Peaslee made a motion for the revocation of the probate. This motion was heard by the surrogate and denied. Thereupon she appealed to the General Term of this court, and the decree was affirmed on the ground that she, having accepted the payment of $7,000 on account of the legacy bequeathed to her, had estopped herself from contesting the validity of the will.

It is now urged that Fannie M. Peaslee, having accepted from the executors $7,000 on account of the legacy bequeathed to her by the will of Martha K. Peaslee, cannot now assert that the balance shall be paid to her pending the expiration of the time within which the Code of Civil Procedure prescribes that she shall have the right to appeal. The force of this objection we are unable to see. The time for the payment of the legacy has arrived, and she is entitled to its payment. What effect such payment may have upon other proceedings is a question with which, we have nothing to do upon this application.

It is further urged that as to $20,000 of the sum of $23,000 which the surrogate has directed the executors to pay they have a valid right of set-off. "We are unaware of any authority on the part of executors to offset contingent claims against absolute legacies. These executors are entitled to nothing unless Fannie M. Peaslee dies without issue. And this contingent claim they seek to offset against her absolute right to her legacy, given by the will of which they are the executors. It seems to us that the Surrogate’s Court has no equitable powers which would enable it to enforce the contingent claims of the executors by means of an equitable set-off. The position of the appellants seems to be based upon the claim of an existing right of possession of this money, which clearly does not exist. Therefore, under the rule laid down in Fera v. Wickham (135 N. Y. 223) the right of set-off did not exist, even if the surrogate had the power to entertain such an application.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Jacob Kimmer, as Administrator, etc., of William Kimmer, Deceased, Respondent, v. John Weber and Another, Appellants.

      Master and servant — negligence of a foreman — damages resulting from the death of an employee— evidence as to the wages earned by the deceased.

    If the position of the foreman of a gang of masons is of such a character that the foreman is to he considered as a fellow-servant of the other masons, his negligence, causing the death of one of the masons, cannot he imputed to their common employer, hut if he stands in the place of the employer in respect to the masons employed upon the work, then the employer is liable for any negligence of his which results in an injury to his servants.
    Where the foreman of a gang of masons gave all the orders to the gang, even in the presence of his employers, and the only interest which the employers took in the conduct of the work upon which the masons were engaged was that one of them went there once or twice a day and talked to the foreman, giving no directions to tile men and leaving the whole conduct of the work to the foreman, the employers are liable for the action of their foreman, and his negligence is imputable to them in an action brought to charge them with damages for personal injuries sustained by one of such laborers resulting in his death.
    The plaintiff in an action brought to recover damages resulting from the death of the plaintiff’s intestate, by reason of the alleged negligence of the defendants, has the right to show what amount the deceased was earning at the time of his injury, and although his employers may have been accustomed to pay . him more than they were under legal obligation to do, the fact that the articles of apprenticeship of the deceased did not require sucli payment in no way renders such evidence incompetent; it is still pertinent to the question of the pecuniary loss which has been sustained by the next of kin of the deceased.
    The evidence of a witness, given upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendants, showing the amount of wages earned by the deceased'at the time of the injury which resulted in his death, should not be stricken out because, upon cross-examination, the witness was shown not to have any personal knowledge of the amount which the deceased received, if the witness testified as to the sum which his son (the deceased) was accustomed to give him out of his wages.
    Appeal by the defendants, John Weber and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of June, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made on the 21st day of June, 1894, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.

      Hamilton Wallace, for the appellants'.

      E. B. Barntim, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate and son. At the time of the accident, the deceased was nearly nineteen years of age and was working for the defendants as an apprentice. The defendants were builders engaged extensively in building operations in this city, and at the time in question were employed in reconstructing Koehler’s brewery on the corner of Twenty-ninth street and First avenue, where they employed a gang of men, of whom the deceased was one, the foreman being a man by the name of Joseph Turner. It appears that, for some time prior to the happening of the accident wliicli resulted in the death of the deceased, there were working in this building, besides the masons, a gang of plumbers and also a gang of carpenters, both of whom were entirely independent of the deceased. The plumbers had been using a scaffold constructed for them in the prosecution of their work in the lower stories of the building, which was taken apart and used in the upper floor where the accident took place and there re-erected. The ceiling, however, being much higher on this floor than on the lower floor, the height of the scaffold was increased by fastening uprights upon its top and the planks forming the plumbers’ scaffold 'were placed on or near the top of the structure. While the plumbers were engaged upon this last floor, it became necessary for the masons in defendants’ employ to do some work on the ceiling. For this purpose they erected a structure of their own, partially resting upon this plumbers’ scaffold and partially resting upon a support which was erected by themselves. The fact of the insufficiency of this scaffold was called to the attention of Turner, who was the foreman of the defendants, and had been such for some ten years and gave all the orders to the men who were employed about the premises, although one of the defendants was accustomed to come to the work once or twice each day. Turner replied tb the suggestion of the insufficiency of the scaffold, Well, I guess it is all right; ” and the man went on working upon the scaffold under the direction of Turner. After the scaffold had been used for some time, in making some changes one of the cross pieces broke, the scaffold fell and the deceased was so injured that he died shortly thereafter. The question presented upon the trial was whether the defendants were liable because of the insufficiency of this scaffold. The jury having rendered a verdict in favor of the plaintiff, from the judgment thereupon entered and from an order denying a motion for new trial this appeal is taken.

It is urged that the court below erred in submitting any question to the jury upon the ground that there is no evidence in the case to connect the defendants personally with the accident; and that if any negligence was shown it was that of Turner, the foreman of the gang of laborers, who was a fellow-servant aiid for whose negligence the defendants are not responsible.

It is undoubtedly true that if the position of Turner was of such a character that he was to be considered as a fellow-servant his negligence cannot be imputed to the defendants. But if Turner stood in the place of the defendants with respect to the masons employed upon this work, then the defendants would be liable for any negligence of his which resulted in injury to their servants. That the latter was his position seems to have been satisfactorily established by the evidence. It appears that Turner gave all the orders to the men, even in the presence of the defendants; that the only interest which they took in the conduct of the work was that one of them went there once or twice daily and talked with Turner, giving no directions to the men, and leaving the whole conduct of the work to Turner. This seems to bring the question within the rule laid down in the case of McGovern v. The Central Vermont Railroad Company (123 N. Y. 281) where a principal was held liable for the action of his superintendent, such superintendent having the entire control of the elevator in which the accident happened.

It was also held in the case of Pantzar v. Tilly Foster Iron Miming Co. (99 N. Y. 368) that where a coal mine was conducted under the management of a superintendent who had full j>ower and control and discretion in conducting the work, the owner was liable for negligence of such superintendent. In the case at bar it is apparent that Turner had full charge and control of the work; he was the only person who gave any directions to the men as to the method of the prosecution of the work, and it is evident that the defendants intrusted the same entirely to him. They would appear to have exercised no control over the workmen, but simply to have consulted with Turner who was conducting the work for them. From this evidence the court had a right to hold that Turner had full control of the work and full discretion as to the method of its prosecution; and that, therefore, the defendants were liable for any negligence on his part which resulted in injury to their servants. And the jury having found upon the evidence to which brief notice has been called that the scaffold was insufficient for the purpose for which it was intended, and the accident resulted therefrom, and that Turper was aware of its unsafe condition and failed to remedy the defects or to provide a safe and stable scaffold for the workmen to work upon, the right of the plaintiff to recover the damages sustained, because of the insufficiency of the scaffold, seems to be established.

Certain exceptions have been taken to the admission of evidence which it may be proper to notice. It is claimed that it was erroneous to admit evidence as to the wages the deceased received. This evidence was objected to upon the ground that the articles of apprenticeship were conclusive upon that point, and that any payment which may have been made to him beyond that which was called for by the articles, was a mere gratuity, and any agreement to pay anything further for his services was void for want of consideration. We do not see that this exception was well taken. The plaintiff had a, right to show what amount this deceased was earning at the time, and although his employers may have been accustomed to pay him more than they were under legal obligation to do, the fact that the articles of apprenticeship did not require such payment in no way rendered the evidence incompetent. It was pertinent to the question of the pecuniary loss which had been sustained by the next of kin of the deceased.

It is urged that it was error not to strike out this evidence,, because upon cross-examination the witness was shown not to have' any personal knowledge of the amount which the deceased received. But it is apparent, the witness having sworn that this was the sum which his son was accustomed to give him out of his wages, that he-had precisely the knowledge which it was important to lay before the jury, namely, the pecuniary loss which he had suffered by reason of his son’s death.

The other exceptions to the admission of evidence do not seem to be worthy of particular mention.

Certain exceptions to the judge’s charge are called to our attention. It is urged that the exception to so much of the charge as-charged That if the foreman is negligent the employer is himself liable as though he himself was negligent,” was well taken. The court in reply to this exception stated: “ If the foreman is negligent in the performance of a duty resting on the employer, the employer is just as much liable as if he personally had super, intended the performance of the work. That is what I think I said and intended to say.” It is urged that the court should have gone further and instructed the jury what were the duties resting upon the employer. This the court had already done. He-had charged the jury: “ That it is a legal duty resting upon him. (the employer) to see that such structures and such appliances or machinery as one of his employees is required to use in the natural and necessary prosecution of his business are adequate, or reasonably adequate, for that purpose,” which seems to have been a correct exposition of the law. It is also urged that the exception to so much of the charge as charged that there was a conflict of evidence as to how the accident happened was also well taken, in that it is claimed that there was no conflict of evidence as to how the accident happened. It does not seem to us, whether the court was mistaken or not in charging that there was a conflict of evidence upon that point, that any injury has been sustained by the defendants thereby. But we think, upon a reading of this case, that it is not apparent precisely how the accident happened, and that there are discrepancies in the statements of the witnesses as to how the break occurred which caused the scaffold to fall. It is true that it is conceded that some of the fellow-servants of the deceased were in the act of handling a heavy timber in connection with this scaffold, but precisely how that timber caused the scaffold to break is a matter of dispute between the witnesses. Therefore, the court was entirely right in saying there was a conflict of evidence.

Upon the whole case we are of the opinion that the judgment and order appealed from should be affirmed, with costs.

Eollett and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Carlo Scotti and Another, as Administrators, etc., of Benedicto Scotti, Deceased, Appellants, v. George Behsmann and Others, Respondents.

      ■Contributory negligence in a situation of danger — duty of the driver of a vehicle turning a city street corner.

    If a person makes a spasmodic effort to preserve Mmself in a situation of danger, in -which he has keen placed without any fault or negligence upon his own part, the fact that he does not do exactly the right thing in order to avoid the danger does not make him guilty of contributory negligence.

      It is the duty of the driver of a vehicle when turning around a street corner in a city to give the people who are crossing the street some opportunity of escape from a vehicle which they have no reason to suppose is going to interfere with them; he must see that the crosswalks are clear before he turns into the street, and must not ruthlessly ride down any pedestrian who may happen to be pursuing his course'along the street into which the driver desires to turn his vehicle.
    Appeal by the plaintiffs, Carlo Scotti and another, as administrators, etc., of Benedicto Scotti, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of March, 1894, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jury.

      W. K. Hall, for the appellants.

      J. A. Hodge, Jr., for the respondents. .
   Yan Brunt, P. J.:

This action was brought to recover damages for the killing of the deceased by a vehicle belonging to the defendants. The deceased was a boy nine years old ; he was proceeding with others up First avenue in the neighborhood of One Hundred and Third or One Hundred and Fourth streets, and the party desiring to cross the street in their progress along the avenue, the boy went ahead of the rest and was upon the crosswalk crossing the street when some of the others saw a cart coming through the avenue which, without giving any warning, suddenly turned around the corner of One Hundred and Fourth street going on a little trot, the boy being about two or three feet away from the cart. He was called to and started ahead in front of the horses and was struck and killed.

Hpon this state of the evidence the court dismissed the complaint This we think was error. The deceased wás going along the avenue and crossing at the crosswalk. He had no reason to anticipate that any vehicle upon the avenue would turn suddenly across the walk without giving any warning. It is claimed, however, that the evidence shows that when the deceased was called to he ran in front of the horses and it was because of this the accident happened. But it is apparent that the vehicle was right upon him when his attention was called to it; ■ and that this was a spasmodic effort to preserve himself from a situation of danger in which he had been placed without any fault or negligence upon his own part; and if he did not do exactly the right thing in order to avoid the danger, that does not make him guilty of contributory negligence. It was the duty of the driver of this vehicle when turning around this corner to have given those people who were crossing the street some opportunity of escape from a vehicle which they had no reason to suppose was going to interfere with them. It was the duty of the driver under these circumstances to see that the crosswalks were clear before he turned into the street, and not to ruthlessly ride down any pedestrian who might be hajipening to be pursuing his course along the avenue at the intersection of the street.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien and Follett, JJ., concurred.

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