author: Ingraham, J. Per Curiam

text:
    HENRY A. WEEKS, Individually, and as Administrator, &c. of Nathaniel T. Weeks, Deceased, and as Executor of Mary Weeks, Deceased, Respondent, v. CHARLES H. OSTRANDER, as Executor of Catharine Weeks, Deceased ; and JACOB WEEKS CORNWELL, as Executor of Jacob Weeks, Deceased, and as Executor of Catharine Weeks, Deceased, Appellants, Impleaded with GEORGE W. WEEKS, as Executor, &c.

      Bes adjudicata—rival claimants to legacy.— Will, construction of.— 'Bequest of bond and mortgage subject to consent of testator's wife—direction to executors to cancel.

    An adjudication in an action brought by one of two claimants of the same specific legacy to recover the same, is not binding upon the other claimant, he not being a party thereto; and it cannot be held that he is represented therein by the executor of the estate against whom the action is brought."
    If, from an examination of the whole will, the intent of the testator is clear, and such intent is in danger by inapt or inaccurate modes of expression, it is the duty o£ the court to subordinate the language to the intention ; and in such case the court may reject words and limitations, supply them or transpose them to get at the correct meaning.
    Accordingly, where it appeared that the will contained a bequest to the testator’s wife of “ all my bonds and mortgages . . . subject to and charged as provided in the 26th section of my will,” which section authorized and directed the executors to cancel and satisfy, for the consideration of one dollar, a bond and mortgage given to testator by M. and N. Weeks, provided the testator’s wife should consent thereto; that an action was brought in the supreme court by the personal-representatives of testator’s wife against said executors, to recover the wife’s legacies, to which action N. and M. Weeks were not parties, and in which, among other things, it was adjudged that said executors pay and turn over to-the wife’s estate the bond and mortgage in question; and it further appearing in this action, subsequently brought in behalf of N. and M. Week’s estate against said executors to have said bond and mortgage-declared canceled, and to obtain a discharge of record-, etc., that testator’s wife had consented in writing, to the cancellation of the bond and mortgage, which consent was delivered to said executors and the one-dollar paid to them, and that they had refused to execute a satisfaction-piece.

      Held, that the judgment in the supreme court action was not binding on. N. and M. Weeks nor on plaintiff claiming under them.

      Further held, that the provisions of the will were, in effect, a bequest of" the bond and mortgage to N. and M. Weeks, subject to the consent of testator’s wife, and that no discretion was invested in the executors, the-direction as to them being absolute.

      Further held, that no instrument in writing was necessary to discharge the-mortgage, but by force andueffect of the will, in compliance with its conditions, the debt for which the mortgage was given as security became-satisfied and discharged, and with it the mortgage.

      Further held, that plaintiff was entitled to judgment declaring the bond and mortgage satisfied, and directing that the same bo canceled and discharged of record.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ..

      Decided December 7, 1885.
    Appeal from judgment in favor of plaintiff, entered at" special term.
    The action was brought to obtain an adjudication that" a certain bond and mortgage had been canceled and satisfied, as provided for in the will of Jacob Weeks, deceased, and to obtain a discharge of record of the mortgage, &c.
    The facts are substantially as follows :
    Jacob Weeks died September 9, 1881, leaving a widow, Catharine Weeks. At the time of bis death he owned a. bond and mortgage for $15,000, made to him by his-brother, Nathaniel T. Weeks, and Mary'Weeks, his wife. Mary Weeks was then dead, having by her will devised the property affected by said mortgage to Nathaniel T. Weeks for life, with remainder to plaintiff (thereby appointed her executor), who was the only child and heir-at-law of said Nathaniel T. and Mary Weeks. Nathaniel T. Weeks died in the fall of 1883, intestate, and plaintiff was his administrator. The portions of Jacob Weeks’ will applicable to this $15,000 were as follows : “II. I give, devise and bequeath to my wife, .Catharine Weeks, and her heirs forever, in lieu of her dower in my estate, and of all other claims whatsoever, ... all my bonds and mortgages . . . except as hereafter otherwise specifically bequeathed and stated, and subject to and charged as provided in the twenty-sixth and thirtieth sections of this, my will. ...” “XXVI. .1 authorize and direct my executors, within one year after my death, to cancel and satisfy, for the consideration of one dollar, the bond and mortgage of Mary and Nathaniel Weeks to Jacob Weeks, to secure the payment of fifteen0 thousand dollars, provided my wife, Catharine Weeks, shall consent thereto.” The thirtieth section did not refer to the mortgage in question. “XXXII. I nominate and appoint my wife, Catharine Weeks, executrix; my adopted son, Jacob Weeks Cornwell, my nephew, Samuel Weeks, Jr., and George Washington Weeks, executors of this my last will and testament. ...” The will was admitted to probate on or about September 20, 1881, and letters testamentary thereon were then granted to Catharine Weeks, Jacob Weeks Cornwell and George W. Weeks only. On September 30, 1881, Catharine Weeks signed, executed, acknowledged and delivered to Henry A. Weeks, who was then the owner in remainder of the property affected by said mortgage, and who was acting on his own behalf individually, and on behalf of Nathaniel T. Weeks, a written consent to the cancellation of said bond a,nd mortgage, reciting said 26th clause of the will. This paper was delivered to the remaining two executors, to whom it was addressed, and the one dollar paid to them by Henry -A. Weeks on October 1, 1881, George W. Weeks transacting that part of the business, and giving to Henry A. Weeks a receipt, signed by him as executor, &c., referring to said 26th section of the will, and reciting the consent of the widow, &c. Catharine Weeks died April 7, 1882, leaving a will, by which she made the said Jacob W. Cornwell one of her executors, and her residuary legatee, and also named the defendants Charles H. Ostrander and George W. Weeks executors.
    The remaining executors of the estate of Jacob Weeks refused to execute a satisfaction-piece of the bond and mortgage in question, whereupon this action was brought.
    It appeared that prior hereto, in an action in the supreme court between the executors of Catharine Weeks, deceased, and the executors of Jacob Weeks, deceased, this plaintiff not being a party, it was adjudged that the said bond and mortgage were the property of the estate of Catharine Weeks, deceased, and that Charles H. Ostrander, as executor of Catharine Weeks, deceased, or he and his co-executor, should recover the same, and that in case of the failure of the executors, &c., of Jacob Weeks, deceased, to deliver over the said bond and mortgage to the said executors, &c., of Catharine Weeks, deceased, the executors of Jacob Weeks, deceased, should pay over the sum of $15,000 as and for the value of the principal of that bond and mortgage.
    Plaintiff’s claim was resisted on the grounds that said adjudication was binding on plaintiff as being privy to the executors of Jacob Weeks, deceased ; that there was no valid consent by Catharine Weeks to satisfy the mortgage, because the consent was neither evidenced by Mrs. Weeks joining in the execution of a satisfaction-piece, nor certified in writing on the satisfaction-piece, as was claimed to be required by the provisions of the Revised Statutes as to powers (3 R. S. Banks’ 7th Ed. p. 2193, § 122); and that as the power was not exercised u within one year,” the time named in the will, it could not now be exercised.
    The following opinion was delivered at special term.
   Ingraham, J.

The first question to be determined in this action is, whether or not the judgment of the supreme court in the action of Charles H. Ostrander, as executor, &c., against Jacob Weeks Cornwell and George W. Weeks, as executors, &c., is a bar to this action, and a conclusive determination of the questions at issue here.

That action was commenced by one of the executors of the last will and testament of Catharine Weeks, deceased, to compel the executors of the last will and testament of Jacob Weeks, her husband, to account for and pass over to the plaintiff in that action all of the property and money due to the estate of the said Catharine Weeks, deceased, from the estate of her husband, Jacob Weeks, deceased, and was in effect an action to recover the legacies left by the said Jacob Weeks to his wife, the said Catharine Weeks.

The plaintiff in this action was not a party to that action, and can only be bound by the judgment therein on the theory that he was represented by the executors of the estate of Jacob Weeks.

The authorities cited by the defendants holding that the executors of the estate represent the residuary estate, do not apply, because the executors in such a case represent the residuary estate for the purpose of protecting it against all prior claims upon it which might diminish its amount; and in an action either by a creditor or by a particular legatee, the executor is the representative of the estate, and as such represents the residuary legatees.

The case is, however, very different where two parties claim the same specific legacy, for, in that case, the estate itself is not increased or diminished by the determination of the controversy between the parties. The executor is simply as to the subject of such specific legacy, a stakeholder ; he has no interest in the determination of the controversy as to whom the specific legacy is payable, and no case has. been cited to me holding that under such circumstances one of the claimants to the legacy can be bound by the determination against the. stakeholder in a contest to which he is not a party.

In Cromer v. Pinkney (3 Barb. Ch. 474), cited by defendants, the chancellor said : The case is otherwise where one of the residuary legatees sues for his share of the estate, for, as an accounting of the estate must be taken in that case, the executor may insist that the other residuary legatees shall be brought before the court, to save him the trouble of an accounting the second time at their suit,”—showing that one of the two residuary legatees would not be bound by an accounting of the executor in an action to which he was not a party. There is no distinction between the case of the two residuary legatees and the case of two claimants to a specific legacy.

In this case, the defendant, Jacob Weeks Cornwell, is one of the executors of Jacob Weeks, is also one of the executors of Catharine Weeks, and is the residuary legatee of Catharine Weeks, and appears, therefore, to be the one who would be mainly benefited by a determination of this action in favor of the estate of Catharine Weeks ; and it would be repugnant to every principle of justice to hold that a judgment obtained in an action, brought by him as executor of Catharine Weeks against himself as executor of Jacob Weeks, that a legacy given to another person not a party to such action, was his, would bar the legatee from maintaining an action to recover such legacy, yet if the defendants’ position is sopnd, that would be the result.

On the refusal of the executor of an estate to pay to the legatee a specific legacy, the legatee has an action in his favor against the executor {Code, § 1819). And it would hardly be claimed to be a defense to such action that the executor had paid the legacy to another person.

The executors of the estate of Jacob Weeks cannot complain if they have to pay this mortgage under the judgment of the supreme court. They could have inter-pleaded, as to the bond and mortgage in controversy, the plaintiff in this action and brought him before the court where he could have protected his interests.

It becomes necessary, therefore, to construe the second and twenty-sixth clauses of the will of Jacob Weeks, deceased, and it is the duty of the court in construing the will to carry out, if possible, the intention of the testator. If from an examination of the whole will the intent of the testator is clear, and such intent is in danger by inapt or inaccurate modes of expression, it is the duty of the court to subordinate the language to the intention, and in such case the court may reject words and limitations, supply them or transpose them to get at the correct meaning (Phillips v. Davies, 92 N. Y. 199).

Now, taking the second and twenty-sixth clauses of this will together, it is clear that the intent of the testator was to give this bond and mortgage to Mary H. Weeks and Nathaniel Weeks, subject, however, to the consent of the wife being first obtained. The bequest to the wife by the second clause of the will of all my bonds and mortgages,” &c., is made subject to and charged as provided in the twenty-sixth section of the will, and by the twenty-sixth section of the will the executors are authorized and directed to cancel and satisfy for the consideration of one dollar, the said bond and mortgage, provided the testator’s wife should consent thereto. No discretion was invested in the executors. The direction as to them wras absolute, and, on the consent of the wife, the provisions of the twenty-sixth section took effect, and on the payment by Mary Weeks and Nathaniel Weeks of one dollar, the bond and mortgage were satisfied and discharged. Catharine Weeks consented. That consent in writing was delivered to the executors, and the one dollar paid to them. No instrument in writing was necessary to discharge the mortgage, but by the force and effect of the will, the debt for which the mortgage was given as security became satisfied.

A mortgage is simply a security for the payment of the bond, or other evidence of indebtedness, and any act which is sufficient to release the bond, discharges the mortgage. The payment of the bond satisfies and discharges the mortgage (Remington Paper Co. v. O’Docharty, 81 N. Y. 474). And the cancellation of the contract, to secure which the mortgage was given, cancels the mortgage (Wanzer v. Carey, 76 N. Y. 526).

In Carpenter v. Soule (88 N. Y. 251), the court of appeals held that the mortgagee, having delivered to the mortgagor without consideration a receipt for two thousand dollars to apply on the bond and mortgage, it was a gift of a part of the debt, and operated at once to extinguish it pro tanto, and canceled and discharged so much of the debt.

I have come, therefore, to the conclusion that the plain intent of the testator was that, on the consent of the wife, this bond and mortgage should be satisfied and discharged; that it was in effect a bequest of the bond and mortgage to the plaintiff’s testator, subject to the consent of Catharine Weeks; and that, on the consent of the wife and the payment of the one dollar named, the twenty-sixth clause of the will took effect, and the bond and mortgage became satisfied and discharged.

An examination of the judgment of the supreme court shows that in that action several other questions were presented to the learned judge before whom the case was tried. Plaintiff was not before the court; hut, as between the parties before the court, it might be that the plaintiffs in that action were entitled to the bond and mortgage, so far as it was valid, and that the fifth conclusion of law in that action was that the defendant George W. Weeks, as executor of the last will and testament of Jacob Weeks, had failed to prove that Catharine Weeks, in her lifetime, executed any satisfaction-piece of the bond and mortgage for fifteen thousand dollars mentioned in the complaint, or any consent sufficient in law to authorize the executors of the will of the said Jacob Weeks, deceased, to cancel and satisfy the said bond and mortgage for the consideration of one dollar ; but in this action such proof has been supplied.

I am therefore of the opinion that the plaintiff is entitled to judgment declaring the bond and mortgage described in the complaint satisfied, and directing that the same be canceled and discharged of record, and that the plaintiff recover costs of this action against the defendants, the executors of Jacob Weeks, deceased.

Van Winkle, Candler & Jay, and Flamen B. Candler, for appellants.

Anderson & Man, and Frederick JET. Man, for respondent.

Van Schaick, Qillender <& Stoiber, and A. H. Stoiber, for defendant, George W. Weeks.

Per Curiam

The judgment appealed from should be affirmed, upon the opinion of the learned judge who tried the case at special term.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE ex rel. RACHEL GORLITZ v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK.

      Few York Gity—■Board of Education—power of to remove teachers without cause or opportunity to he heard.

    Under § 1042 of the Consolidation Act (L. 1882, ch. 410),—providing that “ any teacher maybe removed by the Board of Education upon the recommendation of the city superintendent, etc.; but only by a vote of three-fourths of all the members of said board,"—the removal may be without cause asserted or shown, or opportunity to be heard against the removal.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.

      Decided December 23, 1885.
    ' Hearing upon the return to a writ of certiorari issued to review the proceedings of the Board of Education of the city of New York, whereby the relator was removed as teacher in the public schools of the city.
    The facts appear in the opinion.

      Samuel D. Levy and Benno Loewy, for relator.

      R. G. Beardslee, for respondent.
   By the Court. —Sedgwick, Ch. J.

The relator was a teacher in a public school of this city, and was removed from her place as teacher by a vote of three-fourths of all the members of the Board of Education upon the recommendation of the city superintendent. The objection is 1 made to this removal that it was without cause, or at least, sufficient cause.

The respondent maintains the legality of the removal under section 1042 of the Consolidation Act (Laws 1882, ch. 410), which is : “ Any teacher may be removed by the Board of Educatioh upon the recommendation of the city superintendent, &c.; but only by a vote of three-fourths of all the members of the said board.”

That the construction of this statute is that the removal may be without cause, asserted or shown, or opportunity to be heard against the removal, is, if authority were needed, determined by People ex rel. Gere v. Whitlock (92 N. Y. 191). In that case, the statute (Laws 1881, ch. 559, § 1), declared, “ The mayor of said city is hereby also authorized to remove from office any commissioner of said department for any cause sufficient to himself, but he shall forthwith make and transmit to the common council of said city, &c. a statement in writing, &c. of his reasons for such removal.” The court said that the power of removal was expressly conferred upon the mayor, to be exercised as to him shall seem meet. “In People ex rel. Mayor v. Nichols (79 N. Y. 582), the statute requires not only that cause for removal should exist, but also that the officer should have an opportunity to be heard. The statute before us lacks both conditions. No opportunity to be heard is given, and it is enough if the mayor thinks there is sufficient cause. It may or may not exist except in his imagination, but his conclusion is final.” In the opinion, People ex rel. Sims v. Board of Fire Commissioners, &c.5 is referred to.

In the case at bar, in conformity with the terms of the act, the city superintendent recommended the removal. The act did not require him to give a reason for the recommendation or for the proposed removal. He did give a reason ; that is, the insubordination of the teacher. But by the act, he was, so far as his recommendation was concerned, the sole judge- of the existence of the facts which constituted in his judgment, insubordination, and of their sufficiency to induce him to make the recommendation. The board was not necessarily to act in removing upon the reason the city superintendent gave. They might or might not get in any way, information as to the validity of the reason assigned. Any step they might take in appointing a committee was entirely for their own guidance. The action of the committee and the action of the board upon the report, do not furnish any matter for review; for the vote of three-fourths incontrovertibly shows that there was a removal as provided by the act.

The determination reviewed is confirmed, with costs.

Van Vorst and Freedman, JJ., concurred.


text:
    RICHARD PANCOAST, et al., Respondents, v. JOHN Y. SPOWERS, Jr., Impleaded, &c., Appellant.

      Assignment for benefit of creditors, when held good as against levy under execution, the assignment being made and delivered prior, though not recorded till subsequent thereto.

    Before Truax and O’Gorman, JJ.

      Decided May 26, 1885.
    Appeal by defendant from judgment in favor of plaintiffs, entered upon the findings of a judge at special term.
    The complaint alleged, and the court found, that an assignment was made to the defendant, who thereupon proceeded to take possession of the assigned property ; that subsequently the plaintiffs recovered judgment against the assignors ; that execution was issued on the judgment to the sheriff of the city and county of New York, and a levy was made upon the assigned property ; and that thereafter "the assignment was filed and recorded in the office of the clerk of the city and county of New York, the place where said assignors, as copartners, carried on their business.
   The Court, at General Term, said :—“It was not necessary to the validity of the assignment that it should have been filed and recorded prior to the levy by the sheriff. The court of appeals has decided that a general assignment for the benefit of creditors takes effect from the time of its delivery ; that all requirements subsequent to the delivery are merely directory; and that an omission to obey any of them does not make the assignment void (Warner v. Jaffray, 96 N. Y. 248).

P. Q. Eckerson, for appellant.

John L. Logan, for respondent.

Opinion by Truax, J. ; O’Gorman, J., concurred.

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


text:
    JOHN W. FLYNN, v. BERNARD GALLAGHER.

      Master and servant.—Negligence.—Act of foreman in overloading scaffold, when deemed act of fellow servant.—Presumption of master's negligence from falling of scaffold unexplained.-—Master not bound to rebut presumption of negligence when such evidence is supplied by plaintiff, the servant.—Appeal-book—construction phrase therein, “plaintiff’s counsel asks among other things," etc.

    Before Sedgwick, Oh. J., and O’Gorman, J.

      Decided June 1, 1885.
    Plaintiff’s exception to the dismissal of the complaint ordered to be heard in first instance at general term.
    Action for damages from alleged negligence of defendant
    The testimony showed that the plaintiff, a workman employed by the defendant, was directed by the foreman of the latter to go upon a scaffold to do work there. The scaffold had been built under the order of the defendant. The scaffold fell while the plaintiff was at work upon it. The plaintiff fell to the ground, and was seriously hurt. The complaint proceeds upon a charge of negligence in the defendant in building and using the scaffold. The facts in evidence admitted the consideration of two positions. The one was that the defendant was negligent in respect of the construction of the scaffold, by reason of which it fell. The other was that the breaking down of the scaffold was caused by the negligence of the foreman of defendant, in ordering upon the scaffold to work so great a number of men that they made a weight which the scaffold was not fit to bear, although it was sufficient to bear the weight of a smaller number of workmen.
   The Court at General Term (after stating the facts as above), said :—“It seems that strictly the exceptions of the plaintiff are confined to the facts that are pertinent to the second position. In opposing defendant’s motion to dismiss the complaint, the plaintiff resisted it, by asking to be allowed to go to the jury on the question as to the overloading of the scaffold. The case does not show that he expressed to the court a desire to go to the jury upon any other question, unless that is evinced by the words of the case, namely : ‘ Plaintiff’s counsel asks, among other things,’ etc. These words are indefinite, and not calculated to apprise the court that the plaintiff rests upon any particular issue in the case.

“If the plaintiff be confined to the question indicated, it should be held that the act of the foreman in overloading, so to call it, the scaffold, was an act of the fellow servant of plaintiff, for which the defendant is not responsible to him (Malone v. Hathaway, 61 N. Y. 5).

“ If, however, the other question may be examined, it is to be said that the plaintiff’s own evidence showed that the defendant was not negligent in the construction of the scaffold. It may be assumed that the falling of the scaffold called for explanation, and that, without it, there would be a presumption that the scaffold had been negligently put up. If, however, the facts proven by the plaintiff showed there was no negligence in the construetion, the defendant was not called upon to repeat testimony already in the case. The plaintiff called a witness, by trade a carpenter. He proved that the falling was due to the breaking of a joist, one of the supports. By his testimony, there was no other point of weakness. The joist was a clear piece of white spruce that had begun to split about three feet from where it broke. There did not appear any signs of decay ; it was of about the usual size. Another of plaintiff’s witnesses, also a carpenter, saw the joist after the accident. He testified that he noticed that it was not solid, there being a ‘ shake ’ in it, and that a ‘ shake ’ in a piece of wood a man does not very often notice. If this were all the testimony on the point, it would affirmatively appear that there was no negligence in selecting the joist that broke. The only testimony that could be adduced to vary this result, came from the second witness referred to. That testimony consisted of short sentences, which had an ambiguous application. After saying that a man does not often notice a ‘ shake,’ he said of the shake, if it had been looked at, it wouldn’t have been there. It is possible that the witness meant to say that if the joist had been looked at, it would not have been where it was in the scaffold. In answer to a question, 1 state what was the condition of the joist or timber,’ he said it looked suspicious ; ‘ any body that had a notion of wood could tell what it was.’ If these parts of his testimony are the controlling matter in considering what was the effect of his evidence, it is to be seen that they do not show with any certainty what kind or degree of attention would have disclosed to those building the scaffold, that there was a shake in the joist. In reality, the most important fact he testified to, is that men do not often notice a shake.’ There was nothing in his testimony which would have allowed a jury to disregard the evidence of plaintiff’s first witness, for whose credibility the plaintiff vouched by calling him. That evidence was to the effect that the joist had the appearance of being clear, fair and strong.”

Louis J. Grant, for plaintiff.

Albert G. McDonald, for defendant.

Opinion by Sedgwick, Ch. J. ; O’Gorman, J., concurred.

Plaintiff’s exception overruled, and judgment for defendant- ordered that complaint be dismissed, with costs.


text:
    HENRY H. REMINGTON, Respondent, v. CHARLES E. FISHER, et al., Appellants.

      Transfer to hinder, Sc., creditors.—Purchase upon sale under execution, necessity of actual change of possession to rebut presumption of fraud, &c., effect of payment of valuable consideration.—Judge's charge.

    Before Sedgwick, Oh. J., Freedman and Trttax, JJ.

      Decided June 1, 1885.
    Appeal from judgment in favor of plaintiff entered upon verdict of a jury, and from order denying defendants’ motion for new trial.
    Action for an alleged wrongful taking of certain goods. Plaintiff claimed title to them under and by virtue of a purchase made by him August 7, 1888, at a sheriff’s sale under an execution upon a judgment recovered by him in a certain action in which he was plaintiff and Ettel & Mackintosh were defendants. Defendants now here, took the goods in January, 1884, under an attachment procured by them in an action commenced by them against Ettel & Mackintosh, and claimed they had a right to take them on the ground that the prior purchase by the plaintiff was fraudulent as against them. At the trial, plaintiff showed the purchase by himself as claimed, and that he paid a valuable consideration for the goods so purchased.
   The Court at General Term (after stating the facts as above) said:—“If, in addition to this, it had also been clearly shown that there was an immediate and actual change of possession, the title of the plaintiff could only have been defeated by proof that his purchase was a participation in a scheme to hinder, delay or defraud the creditors of Ettel & Mackintosh, and the burden of proof in this respect would have been upon the defendants. But it also appeared that the goods so purchased were left with Mackintosh as plaintiff’s agent, for the purposes of a sale for plaintiff’s account, and that thereupon the business of Ettel & Mackintosh was continued by Mackintosh in his name, with the word “ agent ” behind it. Witnesses differed as to whether the whole business was so continued for the benefit of the plaintiff, or whether Mackintosh was the agent of the plaintiff only for the purpose of effecting a sale of the particular goods with some others, and at the same time carried on business for himself. This rendered it necessary that the question as to a change of possession should be submitted to the jury, and the question was so submitted to them upon all the facts, and circumstances of the case. They were instructed that the burden of proof in the case depended entirely upon how they would determine the question of change of possession. As the uncontradicted evidence showed payment of a valuable consideration, this instruction, in view of what was said by the learned judges of the court of appeals who delivered the opinions in Starin v. Kelly (88 N. Y. 418), and Murphy v. Briggs (89 Ib. 446), was probably more favorable to the defendants than it should have been. At any rate it was the most they could claim.”

Isaac N. Miller, for appellants.

Morrison & Kennedy, for respondent.

Opinion by Freedman, J.; Sedgwick, Oh. J., and Truax, J., concurred.

The judgment and order affirmed, with costs.


text:
    FERDINAND T. HOPKINS, Appellant, v. ALEXANDER V. DAVIDSON, as Sheriff, &c., Respondent.

      Claim and delivery—requisition in, no protection to sheriff in taking goods from person other than one pi’oceeded against—possession by plaintiff as mortgagee, evidence as to.— When cause of action for wrongful detention cannot be sustained under complaint for wrongful taking.

    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Appeal by plaintiff from judgment entered against him for costs upon the verdict of a jury, and from order denying his motion upon the minutes for a new trial.
    Action for an alleged wrongful taking of property. The plaintiff’s rights arise out of a chattel mortgage executed to him by George B. Tucker upon the property in question, and upon the trial plaintiff claimed that under and by virtue of said chattel mortgage, which was payable on demand, he, through his agent Watson, had, on Saturday, October 6, 1883, taken possession of the property, and that, at the time of the taking by the sheriff, he, the plaintiff, was in the actual possession thereof. The defendant took the property on Monday, October 8, 1883, and he took it as sheriff in an action brought by Mary E. Tucker, the mother of George B. Tucker, against the said George B. Tucker, to recover the possession of the said property, to which action the plaintiff in the case at bar was not a party. The defendant claimed that at the time of such taking George B. Tucker was in possession.
   The court at General Term (after stating the facts as above), said : Upon this issue, the only material question was whether, at the time of the taking by the sheriff, the plaintiff, through his agent Watson, or George B. Tucker, was in possession. A requisition in claim and delivery proceedings is no protection to the sheriff in taking goods or chattels from any other person than the defendant proceeded against. In the enforcement of this rule, the learned judge who presided at the trial, narrowed the issue to the question of possession, and excluded all evidence as to whether or not the plaintiff had a bona fide title. True, a certified copy of the chattel mortgage on the one side, and some notes claimed to show payment on the other side, were received in evidence, but they were received only as part of the circumstances under which the plaintiff acquired possession, and the question as to the validity of the respective claims founded thereon, was expressly withdrawn from the consideration .of the jury. Upon the issue thus litigated, the plaintiff gave evidence to the effect that on Saturday, October 6, 1883, his agent Watson, with a certified copy of the chattel mortgage and power of attorney indorsed thereon, proceeded to the premises of George B. Tucker to foreclose the mortgage, and then and there took possession of the property; that, while in the act of removing it, and at the urgent solicitation of George B. Tucker, Watson allowed the property to be taken back to Tucker’s rooms.; that Watson then put Mary Ryder, a servant in the house, in possession of the property, upon her promise and agreement to stay there and hold possession for him until the following Monday ; that thereupon Watson went away; that he returned on Monday morning, and that while then waiting for George B. Tucker to make s.ome settlement, the sheriff came and took the property. The defendant, on the other hand, gave evidence to the effect that Watson, after having taken possession on Saturday as claimed, departed from the premises without having put Mary Ryder in possession; that from that time George B. Tucker was again in possession ; and that on the following Monday Watson had not regained possession before the sheriff took the property. The issue.thus raised conceded that Watson had taken possession on. Saturday, as claimed. The contested question of fact was whether, after having done so, he did or did not relinquish possession. This question was fairly submitted to the jury and by them determined in favor of the defendant. There was no error in this disposition of the case, and none of the exceptions taken by the plaintiff in the course of the trial is tenable, unless the point is well taken which will now be considered.

“The plaintiff insists that, because it further incidentally appeared that on Tuesday, October 9, 1883, an affidavit under section 1709 of the Code was served by the plaintiff upon the defendant, at which time the defendant had not yet delivered the property to Mary E. Tucker, and that thereafter the defendant delivered the said property to said Mary E. Tucker, without any indemnity against the claim of the plaintiff in this action, the plaintiff, if he had a bona fidea title and right of immediate possession, had established a conversion for which the defendant was liable. The conversion thus claimed involves the concession that the sheriff rightfully took the property in the first instance. In that aspect of the case, the cause of action would be that, after a rightful taking, and while the plaintiff was out of possession, the plaintiff, as the true owner, and as such entitled to the immediate possession, duly demanded the return of the property, but that the sheriff wrongfully refused to return the same and unlawfully detained the same, &c. The answer to this contention is that the complaint does not set forth any such cause of action. It first charges that at the time therein referred to, the plaintiff was lawfully possessed of a certain personal property, being his own property, situated in the third flat of the house or premises known as No. 155 East Eorty-eighth street, in the city of New York, &c.,' and then it avers “that on or about October 8, 1883, at said city of New York, the defendant unlawfully took said property from the possession of the plaintiff, and carried the same away, and still unlawfully detains the same from the plaintiff, to plaintiff’s damage, in the sum of seven hundred dollars.” The premises referred to constituted the residence of George B. Tucker, and the plaintiff did not live or do business there, and as the words ‘being his own property ’ are descriptive merely of the property which it is averred the plaintiff was possessed of, it may well be, as the defendant contends, that all the plaintiff relied upon was that at the time alleged he was lawfully possessed. But, be that as it may, it is clear that the only unlawful detention charged arose out of an unlawful taking. To make the cause of action now insisted on available, the plaintiff should at least have averred a detention after a due demand. This was not done. The defect is a substantial one (Scofield v. Whitelegge, 49 N. Y. 259). It nowhere appears that the point relating to this additional cause of action was even suggested to the learned judge who presided at the trial. But it does appear that plaintiff’s attention was called to the fact that he ought to amend his complaint, if he desired to litigate the question whether or not he had a bona fide title, and that he refrained from asking leave to amend.”

W. T. B. MilUJcen, for appellant.

W. Bourhe Cockran, for respondents.

Opinion by Freedman, J. ; Sedgwick, Oh. J., and Truax, J., concurred.

Judgment and order affirmed, with costs.


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    ABIJAH CURTISS, Respondent, v. WILLIAM P. MOORE, Appellant.

      Evidence.—Gode Giv. Proc. § 829.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Appeal from judgment in favor of plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial upon the minutes, on the ground that the verdict is against law and evidence, and contrary to the weight of evidence.
    Plaintiff was the holder of a promissory note made by the defendant to the order of one Clifford W. Clarke, and by said Clarke indorsed and delivered to the plaintiff. Clarke died before the trial took place. On the trial the defendant, who had been called as a witness in his own behalf, was asked by his counsel two questions, which tended to show that the note in suit was given by the defendant to said Clarke, to take up a note on which defendant was bound. These questions were objected to on the ground that the defendant could not testify to a personal transaction between himself and the deceased, through whom the plaintiff derived his title to the note. The objection was sustained, and the defendant excepted.

      William L. Flagg, for appellant.

      J. Q. A: Johnson, for respondent.
   The Court at General Term (after stating the facts as above), said:—“It was not error to exclude this testimony (§ 829, Code; Alexander v. Dutcher, 70 N. Y. 385 ; Church v. Howard, 79 Ib. 415). . .The defendant offered in evidence the note which he claimed was the note to take up which the note in suit had been given. This was excluded as immaterial, and the defendant excepted. As their evidence then stood and now stands, this note had no bearing on the case. It was not error to exclude it.”

Opinion by Truax, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Judgment and order affirmed, with costs.


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    ROBERT J. GRAY, Respondent, v. FRANCIS T. WALTON, Appellant.

      Auction sale of chattels—failure of purchaser to remove property by time limited in terms of sale, and consequent loss thereof—when excusable—liability of vendor—implied warranty.

    Before Sedgwick, Oh. J., and Freedman, J.

      Decided June 5, 1885.
    Appeal by defendant from judgment entered against him upon the verdict of a jury, and from order denying motion for a new trial.
    Action to recover the value of certain goods purchased by plaintiff at an auction sale of the goods and chattels belonging to the St. James Hotel, which .he could not get, although he had paid for them. The sale took place on April 24 and 25, 1883. It was conducted by an auctioneer, under the direction of the defendant. The terms of sale, as expressed on the cover of the catalogue, put in evidence by the plaintiff, were as follows: “ Terms of sale. A satisfactory deposit required from all purchasers. All goods must be fully paid for before being-removed ; and, if not paid for within twenty-four hours after the sale, the deposit will be. forfeited, the sale annulled, and goods resold for account of the purchaser. All goods are sold as they are, and no allowance will be made for damaged articles. All goods must be removed at purchaser’s own cost and risk. Sale will also be made subject to terms as stated at time of sale.”
    it was also proved by the auctioneer and by his clerk that it was distinctly announced, at the opening of the sale and several times during the sale, that the goods would have to be removed before May 1, on account of the property then going into the possession of parties other than the defendant. The fact of such announcement having been so made, was uncontradicted, and was held by the court to be an undisputed fact in the case. A bill of the articles purchased was made out and delivered to the plaintiff on the evening of April 26. This bill the plaintiff claimed was erroneous in that he was therein charged with the sum of $50 for each of two washing machines, when in fact, as he contended, he had purchased both for the sum of $50. The plaintiff sought to have this error corrected, but the auctioneer was so busy, as he said, with the sale, that he was unable to see the plaintiff in regard to it until May 2, when an agreement in regard to this difference was effected. Then the plaintiff paid his bill, and the auctioneer stated to the plaintiff that the doors would be open in the afternoon, and that then he, the plaintiff, could get his goods. Plaintiff went on said .afternoon for his goods, but could not get them, and thereupon immediately notified the auctioneer, who then promised that he would see to it that plaintiff should obtain the goods. The defendant received the money paid to the auctioneer. The plaintiff having made several other attempts to get his goods, which proved unavailing, and all applications to the auctioneer and the defendant for them having resulted in nothing but promises, this action was brought. As the plaintiff and the auctioneer disagreed upon the trial as to the terms of the settlement of May 2, the learned judge who presided at the trial, submitted to the jury the questions as to what the original agreement was, and in doing so instructed them that, if the plaintiff agreed to pay $50 for each of the two machines, then it became his duty to remove his goods before May 1, and in such case he was not excused, by reason of the dispute which he had created, for not removing them before that time ; but that, on the other hand, if plaintiff’s version of the transaction was the correct one, and he had bid $50 for both machines, and it was so stated at the time to the auctioneer, the failure of the auctioneer to deliver a correct bill, and the subsequent negotiations based thereon, would excuse the plaintiff’s neglect in not talting the goods before May 1.
   The Court at General Term (after stating the facts as above), said :—“Of this disposition the defendant has no right to complain. There was a conflict which could only be determined by the jury. If the plaintiff had the truth on his side, there was no complete contract between the parties until May 2, and till then he had no right to remove the goods. Agreement in respect to the terms of the contract and payment then completed the contract, and then, for the first time, the title passed, and the plaintiff became entitled to the goods. Under these circumstances the defendant impliedly warranted the title, for the sale was not a sale of a right of action, but a sale of the goods themselves, and if nothing had been said as to a delivery, the law would imply, as a part of the contract, a license to call for the goods and to take them away. But the evidence went beyond, that. It showed that the defendant, through his agent, the auctioneer, at the time of the payment of the' purchase money which • the defendant subsequently accepted and retained, expressly agreed that the doors should be open in the afternoon of May 2, for the plaintiff to obtain his goods, and that after the plaintiff had thus called and failed to get the goods, further promises were made that he should have them. There was also evidence that the defendant delivered goods to other purchasers on May 2 and 3. Upon the whole case, therefore, there was abundant evidence to authorize the jury to find that the plaintiff was excusable in not having called for the goods before May 1, and, they having found so, their verdict should not be disturbed.

“ The fact that the goods were sold to be removed at the risk and cost of the purchaser, cannot relieve the defendant from liability. If the goods had suffered injury during removal, the loss would have fallen on the plaintiff. But that is not the contention. The plaintiff could not get the goods which the defendant by his contract was bound to deliver, in any condition whatever.

“Upon the facts which the jury must be deemed to have found, the measure of damages is the actual value of the goods at the time of the failure of the defendant to deliver them ; viz., on May 2, 1883. In this respect the jury were correctly instructed and their verdict does not appear to be excessive.

James K. Hill, Wing & Shoudy, for appellant.

Jacob IF. Miller, for respondent.

Opinion by Freedman, J. ; Sedgwick, Oh. J., concurred.

Judgment and order affirmed, with costs.


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    GEORGE MANLEY, et al., Appellants, v. GEORGE H. STAYNER, Respondent.

      Liability of agent to party paying money for account of principal, for failure so to pay over.

    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided June 19, 1885.
    Appeal by plaintiffs from judgment dismissing the complaint upon the merits entered upon the report of a referee.
    Action to recover the sum of $5,000, directed by the plaintiffs to be paid to the Plata Verde Silver Mining Company, on a purchase, directed and understood by the plaintiffs to have been made by the plaintiffs from that company, of certain shares of its treasury stock, which sum plaintiffs claimed the defendant omitted to pay to the company, and, therefore, in law, applied to his own use.
    The referee’s opinion was as follows :—“ Hamilton Cole, Referee.—In the year 1880 the plaintiffs made, through one A. H. Lazare, a broker, certain inquiries concerning the Plata Verde Silver Mining Company, of Hiram P. Crosby, a director in said company. Lazare was informed, and communicated to plaintiffs the information obtained, that the company was capitalized at $10,000,000, that there were ten thousand shares of treasury stock as a working capital, of which eight thousand had been sold at $10 per share.
    “The plaintiffs sent their check for $5,000 payable to George H. Stayner, treasurer, and received in return five hundred shares of the stock of the company. Manley testifies that he intended to purchase five hundred shares of the two thousand shares of stock left in the treasury, but it is doubtful whether such was the agreement in fact made with the company through Lazare. The check sent by plaintiffs was received by John E. Lowther, the secretary of the company, and was by him delivered to' the defendant. He indorsed the check as treasurer, and also individually, and deposited the same in his private bank account January 31, 1880. On February 4, 1880, he paid out the same, upon the request of John E. Lowther, secretary of the company, to Hilborn & Lawrence, upon their draft drawn upon said company. The claim of Hilborn & Lawrence was as follows : Eobinson & Junkin claimed to own the mine. The agreement between them and the defendant and his associates, was that Eobinson & Jun-kin were to sell Stayner and his associates three-fourths of the mine for $750,000. The mine owners wanted money, not stock. In order to make the stock full-paid stock, all of it was issued in exchange for the property,' then seventy-five thousand shares were set apart for Eobinson & Junkin for their interest in the mine, but this stock was put in the hands of John E. Lowther, trustee,' who was to sell the same for $10 per share, and pay proceeds to Eobinson & Junkin. Eobinson & Junkin guaranteed their title to the mine. Hilborn & Lawrence made claim upon it, which the company settled by agreement to pay $50,000, which was done. The $5,000 paid by Stayner, February 4, 1880, was a part of the $50,000 agreed to be paid by the company to Hilborn & Lawrence for the release of their claims upon the mine. And the five hundred shares of stock received by the plaintiffs were a portion of the seventy-five thousand shares held by Lowther as trustee, and originally set apart for Robinson & Junkin. Whatever may have been the arrangement made between Crosby and the plaintiffs in regard to the five hundred shares of stock taken by them, it is not claimed that any information in regard to such arrangement was communicated to the defendant. So far as he was concerned, he received a check as officer of the company, deposited it in his private account, and paid out the proceeds upon an obligation of the company, without notice of any kind that the check was for any particular purpose. The complaint proceeded upon the theory that Stayner had sold to the plaintiff his own stock. It is not claimed that this is established. Upon the facts proved, I do not see that any individual liability on the part of the defendant is made out.”
   The Court at General Term, said :—“The findings of fact of the learned referee cannot be reversed, and the counsel for appellants does not claim that they should be. The result is that the judgment for defendant was not erroneous.

“ The plaintiffs, through their agent, bought the shares in reality of Robinson & Junkin, although they may have intended to buy shares that belonged to the company, of the company. Accordingly, they did not pay the price of the shares to Robinson & Junkin or any agent of them, and did not intend to do that; but, believing that the company was the owner and seller, they drew a check to the defendant’s order as treasurer, meaning that the payment of it over should be payment to the company. The referee has found that the defendant knew nothing of, and was not in any way connected with the sale to the plaintiffs. On such facts, it may be granted, that the defendant would be liable to an action if, when the check or its proceeds were in his possession, he refused to deliver either upon demand. The fact as found, is that some two years before demand, he had paid the proceeds of the check out for the use of the company, at the request of the secretary of the company. He was agent for the company. The money was paid to him only as agent, and after payment by him he was no longer hable. Under some circumstances, an action would not he against him personally, if he had not paid over, for acts which he did. only as agent (Calvin v. Holbrook, 2 N. Y. 126 ; Hall v. Lauderdale, 46 Ib. 70 ; Mowatt v. McLean, 1 Wend. 173 ; Duff v. Buchanan, 1 Paige, 453 ; Lafarge v. Kneeland, 7 Cow. 456 ; Costigan v. Newland, 12 Barb. 456).

Albert Stickney, for appellants.

M. W. Devine, for respondent.

“ The most important fact as to the merits is that the defendant did pay the money out for the company, and in so doing complied with the request of plaintiffs. The appellants argue that before he made the payment which the referee finds to have been on account of the company, he had appropriated the check to his use by indorsing it as treasurer and then depositing it in his own bank account. The so-called appropriation was, on the facts, a means of keeping the money for the company’s use.”

Opinion by Sedgwick, Oh. J.; Freedman and Truax, JJ., concurred.

Judgment affirmed, with costs.


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      ANNA J. ROGERS, Appellant, v. EDWARD SCHELL, Respondent.

      Money had and received—when action for will not lie.—Agreement "with mortgagors of real property to bid in on foreclosure sale and hold for their benefit, the mortgagors to assign their interest in surplus to bidder—
    . subsequent action of mortgagors to recover amount of surplus so assigned by them to purchaser.

    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint.
    Action to recover $6,298.87, claimed to have been received by the defendant to and for the use of the plaintiff and her assignors.
    The referee found the following facts :—“In and prior to the year 1873, one John Eogers, father of the plaintiff, owned the fee of a lot lying between One hundred and eighty-second and One hundred and eighty-third streets, in the city of New York. The lot was mortgaged to the Manhattan Savings Bank. Eogers died July 17, 1871. The interest to the bank became in arrears. An understanding was had between Eogers’ family, including plaintiff, who is one of his children, and the defendant, that the latter should purchase the lot at a sale thereof to be made under foreclosure of the mortgage aforesaid, for the benefit of the Eogers family, and upon a subsequent sale of it by defendant he should give to them any excess it might bring over the amount he should advance to cover the sum due on the foreclosure decree. If he bid more than the amount of the decree, the surplus should belong to him, and Eogers family would assign their interest in such surplus to him. The defendant bid a large sum in excess of the sum of the decree, and became the owner of the property, but for the benefit of the Eogers family. The members of this family assigned to him their interest in the surplus, and upon proper proceedings he presented it to be paid to him. He still holds the lot, and has exacted rent for it. No one of the Eogers family has paid taxes upon it since the defendant purchased it, nor has he received any interest upon the sum he paid. This action is instituted to recover the surplus money so as above received by him.’’
    The referee found as conclusions of law: “That the above facts do not constitute such cause of action as is attempted by plaintiff to. be made, nor as considered in connection with the pleadings, any cause of action, and that the motion to dismiss the complaint herein should be grantedand directed judgment accordingly.
    The only exception was to referee’s conclusion of law that the complaint should be dismissed.
   The Court at General Term, said :—“ Upon the facts found by the referee, the conclusion reached by him is entirely correct. The agreement between the defendant and the Eogers family, provided, that if he should bid upon the foreclosure sale more than the amount of the decree, the surplus should belong to him. His bid was in excess of the amount of the decree ; he paid it, and received back the surplus, under the arrangement, with the consent of all. To that he was entitled. Had the property, on a re-sale made by him, realized more than he paid, together with his disbursements on account of the property, the excess would have belonged to the family. But he has not re-sold. When he does sell, the plaintiff, or others entitled to the moneys realized on such re-sale, over and above what the defendant has paid on account thereof, will be entitled to the excess.

The defendant offered, in his answer, to convey the property to any person whom the parties in interest will designate, on being reimbursed the moneys he has paid for the same. A re-sale, if desired by the parties in interest, could doubtless be reached through an action brought for the purpose of compelling it. But that is not this action.”

S. W. Fullerton, for appellant.

Ira D. Warren, for respondent.

Opinion by Van Vorst, J.; Sedgwick, Oh. J., and Freedman, J., concurred.

Judgment affirmed, with costs.


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    ROBERT SEAMAN, Respondent, v. ANTHONY McREYNOLDS, Appellant.

      Motion denied on merits cannot be renewed without leave.

    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal from order.
    In the year 1883, the plaintiff, by motion, asked for the same relief as was demanded in the moving papers, upon which the order' appealed from was made. No leave to renew the motion was applied for or granted.
   The Court at General Term, said :—“ That was a sufficient reason for dismissing the motion.

“ A motion once denied upon the merits cannot be renewed without leave first obtained (Jay v. De Groot, 2 Hun, 205 ; Dun v. Meserole, 5 Daly, 434 ; Cazneau v. Bryant, 6 Duer, 668).

“Although these decisions are founded upon a rule of practice, still it has been adhered to, save in cases where the application is founded upon new and further facts (Riggs v. Purcell, 74 N. Y. 370). But this motion does not profess to be founded on additional facts, nor do the moving papers at all refer to the previous motion, or the disposition made of it.”

TV. H. McDougall, for appellant.

H. M. Whitehead, for respondent.

Opinion by Van Yorst, J.; Sedgwick, Oh. J., and Freedman, J., concurred.

Order affirmed, with costs and disbursements.


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    GALEN W. LOVATT, Respondent, v. ELLEN F. WATSON, et al., Appellants.

      Appeal from order sustaining or overruling demurrer will not lie.

    Before Sedgwick, Oh. J., Yan Yorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal from order of the special term, sustaining plaintiff’s demurrer to the second and third defenses set forth in the defendant’s answer.
   The Court at General Term, said :—“No appeal lies from an order sustaining or overruling a demurrer. An interlocutory judgment should have been entered upon the judge’s decision, and an appeal taken from it. So a final judgment entered upon the interlocutory judgment may be appealed from. In the case of an appeal from such an interlocutory judgment, the order upon which it was entered, and in the case of an appeal from such a final judgment, both the interlocutory judgment and the order may be reviewed, provided the notice of appeal is, upon its face, sufficient for the purpose. These points have been settled so clearly, that it seems surprising that any doubt should now exist (Code, §§ 1021, 1349 ; Cambridge V. Nat. Bank v. Lynch, 76 N. Y. 514; Ligeois v. McCracken, 22 Hun, 69 ; S. C., 83 N. Y. 624; Church v. Amer. Rapid Tel. Co., 41 Super. Ct. 558 ; Smith v. Rathbun, 88 N. Y. 660).”

A. B. Conger, for appellants.

E. P. Wilder, for respondent.

Opinion by Van Vorst, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Appeal dismissed, with costs.


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    BURGESS, Respondent, v. BURGESS, Appellant.

      Divorce—provisions of General Rule 74 as to examination of plaintiff concerning matters therein set forth.

    Before Sedgwick, Oh. J., and Freedman, J.'

      Decided December 7, 1885.
    Appeal from judgment of divorce.
    The conditions on which the defendant was permitted, by an order of the special term to serve an amended answer, were not complied with, and thereafter the-defendant stipulated to proceed to trial under the original pleadings. The trial took place before a referee who, on consent of the parties to a reference, had been appointed by the court to hear and determine the issues. In fact,, the answer of the defendant did not create an issue, because it expressly admitted each and every allegation of the verified complaint, inclusive of the charges of several acts of adultery, and did not set up an affirmative defense. The testimony adduced before the referee by the plaintiff, which the defendant failed to controvert, fully established that in the months of August and October, 1884, the defendant had been guilty of adultery, and the circumstances under which the several acts of adultery had been committed, in themselves showed that said acts were committed without the knowledge, consent, connivance, privity or procurement of the plaintiff. The averments of the complaint, that five years had not elapsed since the plaintiff discovered the said acts of adultery, that the plaintiff did not voluntarily cohabit with the defendant, since the discovery by her of said acts, and that she did not condone the same, were also expressly admitted by the answer, and the circmnstances of the case showed that they were true.

      G. A. Burgess,- appellant in person.

      J. H. McCarthy, and William King Hall, for respondent.
   The Court at General Term (after stating the facts as above), said :—“ Under the exceptional circumstances of this case, it was therefore not absolutely necessary that the plaintiff should have been specifically examined by the referee as to those allegations of her complaint, the insertion of which was called for simply by the general rules of the courts. Upon the whole case, the referee was justified in making the report he did, and the court at special term was right in confirming the report, and granting the appropriate judgment thereon. The points raised by the appellant are, under all the circumstances, of a -purely technical character, and wholly without merit.” •

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.


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    BERNARD HEIM, et al., Respondents, v. FREDERICK LINK, et al., Appellants.

      Referep—right of to disregard testimony of loth sides on question of quantity, ete., and make independent finding.

    Before Sedgwick, Oh. J., Van Voest and Feeedman, JJ.

      Decided December 7, 1885.
    Appeal from judgment in favor of plaintiffs, entered upon report of referee.
    The controversy in this case arises upon a delivery by plaintiffs to defendants of three hundred and ten bellies, weighing two thousand seven hundred and thirty-six pounds, under a contract calling for about four thousand pounds of bellies at 9f cents per pound for heavy, and Ilf cents for light smoking bellies, and the only question presented by the appeal is one of fact. It is how many of the bellies so delivered were light smoking, and how many were heavy bellies. All other questions of fact have been waived by not printing the evidence bearing upon them. Upon the point in dispute the plaintiffs claimed before the referee, that the bellies delivered were light smoking bellies, weighing two thousand seven hundred and thirty-six pounds, which, at Ilf cents per pound, entitled them to $321.48. The defendants claimed that nine hundred and thirty-one pounds were light smoking, and one thousand eight hundred and five pounds were fat or heavy bellies, and that consequently the judgment should be for only $285.38.
    The referee held that neither were right; that one thousand eight hundred and thirty-three pounds .were light smoking, and nine hundred and three pounds were fat or heavy, which, under the price fixed by the contract for the two qualities, entitled the plaintiffs to a judgment for $303.41.
   The Court at General Term (after stating the facts as above), said “ For thus splitting the difference between the parties, the referee had no warrant in any testimony hearing directly upon the point, and, if it were necessary to the maintenance of the judgment that the finding should be sustained precisely as made, it perhaps could not be done even upon a balancing of probabilities disclosed by evidence. But no such precision is necessary. Upon the whole case, the evidence clearly preponderated in favor of the plaintiff, and the referee should have sustained their entire claim. If, therefore, he erred, he erred in favor of the defendants, and of this the defendants ought not to be heard to complain.”

L. A. Gould, for appellants.

Baldwin & BlacJcmar, for respondents.

Opinion by Freedman, J.; Sedgwick, Oh. J., and Van Vorst, J., concurred.

Judgment affirmed, with costs.


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    JAMES BROWN LORD, Respondent, v. GEORGE WELLS COMSTOCK, Appellant.

      Damages—"breach of contact by architect in failing to build house as agreed —measure of damages—loss of tenant.

    Before Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal from order disallowing and striking out certain interrogatories proposed by defendant to be annexed to commission for examination of witness out of the state.
    Action to recover for plaintiff’s services as architect in altering one house, and in building another, for the defendant.
    The answer admits the contract of employment, but sets up that by the terms of that contract, the new house was to be constructed for the use of, and to meet the ordinary requirements of, a small family of moderate means ; that the plaintiff so negligently and unskillfully constructed the same that, when completed, it did not answer said purposes ; and that in consequence thereof, the defendant lost a tenant at an annual rent of $360, expended $300 in alterations, and was damaged in his reputation as a landlord to the amount of $1,000. The object of the excluded interrogatories was to examine the alleged lost tenant, not as to the rental value of the house during the time it took to make the alleged necessary alterations, but as to the making of his lease, a supposed breach by defendant of certain conditions on which said lease had been made, the tenant’s consequent refusal to comply with his agreement, and certain conversations between the tenant and the defendant, or his agent.
   The Court at General Term (after stating the facts as . above), said :—“ The whole line of this proposed testimony is clearly immaterial, for, admitting the charge of negligent and unskillful construction, the defendant’s measure of damages can only be either the difference in value between the product of plaintiff’s negligent and unskillful work, and the house as it should have been, or else the cost of remedying the defects, and, if time was of the essence of the contract, loss of rental value during the time required to make the necessary alterations. Unless time was of the essence of the contract, which does not appear, it was not legally within the contemplation of the parties that the house should be rented before it was placed completed in the possession of the defendant. And in no aspect of the case as disclosed by the pleadings, can the plaintiff be held responsible for the loss of a year’s rent upon a lease, with the making of which he had nothing to do. All damages which, from a legal point of view, were not within the contemplation of the parties at the time of the making of the contract, are too remote (Sparks v. Bassett, 49 Super. Ct. 270).”

George Carlton Comstock, for appellant.

Lord, Day & Lord, for respondent.

Opinion by Freedman, J.; Van Vorst, J., concurred.

Order affirmed, with costs, &c.


author: “Van Vorst, J. Per Curiam.

text:
    NICHOLAS ALBERT, et al., Respondents, v. ALBERT BACK, et al., Appellants. WILLIAM S. TAYLOR, et al., Respondents, v. ALBERT BACK, et al., Appellants.

      M'audulent assignment—lien of creditor's till to set aside—when attaches on service of summons only—when funds still deemed in possession of assignee though chech has teen drawn to creditor's order and delivered to attorney for assignee, who has also received from creditor the evidences of Ms claim.

    Before Sedgwick, Oh. J., and Freedman, J.

      Decided December 7, 1885.
    Appeal from order confirming, except as to a certain item of $3,000, the report of a referee appointed to take the accounts of an assignee for the benefit of creditors.
    The defendants Back and Fishel, on October 14, 1884, made a general assignment for the benefit of creditors to the defendant, Moritz Kellner, which assignment preferred, among other, one F. Fishel, a brother of one of the assignors, for the sum of $3,000. Thereafter an action was commenced against the defendants herein by judgment creditors, other than the plaintiffs herein, to set aside said assignment as fraudulent and void as to creditors, and judgment was recovered in said action in favor of the plaintiffs therein. While that action was pending, to wit, on November 25, 1884, a check was drawn by the said assignee Kellner, to the order of the said preferred creditor, F. Fishel, to whom it was delivered, and it was thereupon indorsed by him and placed in the bauds of Mr. Kurzman, who was the attorney for the assignee in the said suit to set aside the assignment, and had acted as his counsel under the assignment. The note representing Fishel’s preference was also placed by him in Mr. Kurzman’s hands, with instructions to collect the money - On the check and pay the note. This check was not certified, and was, in fact, not paid until December 1. The proceeds of the check remained in the hands of Mr. Kurzman, who also retained the note given him by Fishel, and he stated that the money was not paid to Fishel because the suit herein came in between the drawing and payment of the check. This action was begun November 26, 1884, by the service of a summons upon all the defendants, and the defendant Kellner appeared through Mr. Kurzman November 28, 1884. The complaint was not served until after December 1, but it appears that the attorney for plaintiffs informed Mr. Kurzman a day or two before the service of the summons that he was about to begin an action in favor of these plaintiffs to set aside the assignment. Judgment was subsequently recovered in favor of the plaintiffs, declaring the assignment to be fraudulent, and directing the assignee to pay to Cephas Gr. Thompson, as receiver, all the funds coming into his hands as assignee, except his lawful disbursements and expenses, and said receiver was directed to pay the plaintiffs the amount of their claims. The referee appointed to pass the assignee’s account allowed as a paymefit the $3,000 heretofore mentioned. The court confirmed the referee’s report, except as to this $3,000, and directed the assignee to pay that sum to the receiver for the plaintiffs, from which direction this appeal is taken.
   The following opinion was delivered at special term :

“Van Vorst, J.

Under all the facts and circumstances of this case, I must regard the moneys received on the check for $3,000, which have not been paid over to the creditor, but which are still in the hands of the attorney under whose advice the check was drawn, and with whom it was left by the drawee for collection, as still in a position to be affected by this suit—in other words, as funds of the assigned estate to be controlled. by the assignee under the judgment of this court. The attorney with whom the check was intrusted- by the creditor was the attorney and counsel for the assignee. .

“ The check, it is true, was drawn payable to the order of the creditor, who indorsed and delivered it to the attorney for collection, to whom he also gave the obligation which was the evidence of his claim against the assignors, the payment of which was provided for in the assignment. At this point of time, the attorney appeared" to occupy the two-fold position as counsel for the assignee and as agent for the creditor to the extent of collecting the moneys on the check for him, but he did not, by the whole transaction, cease to represent the assignee.

“I cannot but regard the action of the assignee as designed to frustrate this action, which was about to be brought, and of which the attorney, and counsel for the assignee had already been advised. Of this notice to his attorney, the assignee presumably had information.

“An action in favor of another creditor seeking to impeach this assignment was then pending, and this one was on the eve of being commenced. The action of the assignee in giving this check on November 25, leads irresistibly to the conclusion that it was a step on his part to get rid of the moneys in his hands through the payment of the claim of a preferred creditor which the action about to be brought was designed among other things to prevent.

“Assignees, it is true, should move with reasonable diligence in closing up the trusts committed to them. But I am not aware that they are called upon to exercise extraordinary speed to prevent the lien of a creditor’s action about to be commenced, especially when there is an action actually pending, which challenges the honesty and validity of the assignment.

“Was the commencement of this action, by the service of a summons only, a notice to the assignee ? Under all the facts, I think it was.

“The object of the action, it is true, was not stated in the summons, but the assignee must have known the purposes of the suit from the summons itself. He could have known that the plaintiffs had no other ground of complaint against him in connection with the assignor, as a co-defendant, than such as arose from the assignment in question, which was already the subject of inquiry in a legal proceeding.

“ This question of notice is often one of difficulty, but I find none in this case. It would be idle to suppose for a moment that the assignee did not know, when the summons was served upon him, the object or purpose of the action in which he was impleaded with the assignor at the suit of a creditor of the latter. In any event, he was put upon inquiry.

“ The question involved in the transaction is one of good faith, and where a party knows facts sufficient to put him upon inquiry he is supposed to have ascertained the extent of the rights claimed (Williamson v. Brown, 15 N. Y. 354).

“ When the summons was served upon the assignee the moneys covered .by the check still stood to his credit undrawn in the bank. He could have stopped its payment in an instant by a notice. The moneys were not drawn till afterwards. The check was no assignment of the funds mentioned, and the creditors’ claims are still in the hands of the attorney.

“ The creditor is a little nearer the money than he was before this suit was commenced, but not so near as that he may rightfully claim it in opposition to the demands of this suit, which challenges the assignee’s right to dispose of it under the assignment which has been in this action, adjudged to be fraudulent and void as to the plaintiff.

“ By this result the creditor, although he may be disappointed, is actually in no worse condition than he was before the check was drawn to his order. He has parted with no valuable consideration. He may be restored to his former position without damage. The unpaid note is still in the hands of his agent. The note may be returned to him and the money in effect to the assignee to meet the demand of this suit.

Blumenstiel & Hirsch, for appellants.

8. F. Kneelcmd, for respondents.

“ The referee’s report, to the extent that it approves of the transaction above, referred to, or credits the assignee with the payment of the money to the creditor, cannot be confirmed.”

Per Curiam.

Order appealed from- affirmed, with costs, &c., upon the opinion of the learned judge at special term.


author: “Ingraham, J. Per Curiam.

text:
    ALBERT J. GRAEFFE, Appellant, v. CHARLES H. CURRIE, et al., Respondents.

      Brolcer—when cause of action against as set forth, in complaint, not deemed to depend on allegations of fiduciary relations.—Body execution in action against brolcer, &c.—when set aside.—Arrest—when grounds of deemed extrinsic to cause of action.

    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided December 23, 1885.
    Appeal by plaintiff from order setting aside execution against defendant’s person.
    The complaint, in addition to the allegation as to the deposit, &c., of plaintiff’s moneys, set forth in the opinion, contained the following :—“ Third.—That said moneys were so deposited, allowed to remain, and to accumulate in the defendants’ hands, upon the agreement made between this plaintiff and the defendants, that the defendants should honestly and faithfully act as brokers for the plaintiff in the purchase and sale of grain, as the plaintiff would, from time to time, give them directions in respect thereto, and would report to the plaintiff honestly and faithfully the prices at which purchases were made or sales had, according to the custom of brokers.
    “Fourth.—Upon information and belief, the plaintiff alleges that the defendants did not and had not honestly and faithfully invested said moneys as directed by the plaintiff, but the said defendants from time to time reported to this plaintiff certain false and fraudulent transactions, which they represented to the plaintiff to be honest and fair, and the plaintiff, relying upon such representations, believing the same to be true, permitted the use of his said moneys therein, and, as the result thereof, the defendants have reported to the plaintiff that they, in such investments, lost all of the plaintiff’s said moneys, save the sum of $459.99.

      “ Fifth.—That immediately upon the discovery of the plaintiff that the said transactions of the defendants were false and fraudulent, and that he had been deceived by the false, and fraudulent representations of the defendants, the plaintiff repudiated said transactions, and so notified the defendants, and on or about November 17, 1884, demanded the return to the plaintiff of the moneys so deposited, and allowed to remain and accumulate with the defendants as aforesaid, but the defendants, although promising to return the same to the plaintiff, have neglected and refused, and still neglect and refuse to pay the same to the plaintiff, and have returned or repaid to this plaintiff the sum of $390 thereof only.”
    Wherefore the plaintiff demands, &c.
   The following opinion was delivered at special term:

“Ingraham, J.

The complaint alleges that on September 8, the plaintiff had on deposit with defendants the sum of $456.25 ; that at various times between that date and October 18, 1884, plaintiff deposited with the defendants various sums of money, aggregating $3,000, and about October 13, 1884, there was credited to plaintiff’s account by defendants the sum of $418.25, making in the aggregate the sum of $3,875, moneys of the plaintiff in the hands of the defendants.

“ This allegation, as it stands, would make the relation between the plaintiff and the defendants one simply of debtor and creditor, and the fact that the defendants were acting as the brokers of the plaintiff would bring the case within subdivision 3 of section 550 of the Code, which provides for cases where the right to arrest depends upon facts extrinsic to the cause of action.

“ The allegation in the third clause of the complaint, that the said moneys were so deposited and allowed to remain and accumulate in the defendants’ hands upon the agreement therein set forth, does not change the relation that existed between the parties. Nothing is alleged that would show that the plaintiff was entitled to recover the identical money that had been deposited with the defendants, and there is no allegation in the complaint that the money was converted by the defendants.

“To sustain the action, it was not necessary to allege in the complaint the relation that existed between the parties, or that the money was received by defendants as brokers or in a fiduciary capacity (Wood v. Henry, 40 N. Y. 126 ; Segelken v. Meyer, 94 Ib. 473).

“As appears by the case on appeal that was submitted to me on the argument of this motion, on the trial of the action no evidence was offered by the plaintiff to show that the money was paid to or received- by the defendants under any special agreement; but the evidence of the plaintiff was, that on a certain day he had a balance with the defendants of so much, and that' he gave them various sums in cash, aggregating $3,456.25, the balance being made up by the profits on a wheat speculation. If the action had been one for a conversion of money, the plaintiff failed to make out such a cause of action on the trial, and the complaint would have been dismissed.

Alex. Thain, for appellant.

George F. Duysters, for respondents.

“ The subsequent allegations of fraud in the complaint do not bring the action within subdivision 4 of section 549 of the Code. The liability which the action was brought to enforce was contracted on the original deposit of the money with the defendants. There was no fraud in contracting or incurring the liability, and the allegations of fraud in the complaint were in relation to subsequent transactions which the defendants claim resulted in a loss to plaintiff.

“I think, therefore, the action is one under subdivision 3 of section 550, where the right to arrest depends upon facts extrinsic to the cause of action, and under section 1487, plaintiff was not authorized to issue an execution against the person unless the order of arrest had been granted and executed against the judgment debtor. As no order' of arrest has been granted in this action, the execution was irregular, and must be set aside. Motion must therefore be granted, with $10 costs.

Per Curiam.

Order affirmed, with $10 costs, on

opinion below.'


author: Per Curiam.

text:
    ADAM KAISER, Appellant, v. THE INDEPENDENT ACCUMULATING FUND & BUILDING, &c., Impleaded, &c., Respondent.

      Appeal from interlocutory judgment entered on order sustaining demurrer, said order not being appealed from.

    Before Sedgwick, Ch. J., and Truax, J.

      Decided December 23, 1885.
    Appeal from an interlocutory judgment, entered upon an order made at a special term, sustaining a demurrer to plaintiff’s amended complaint. No appeal has been taken rom the order sustaining the demurrer.

      Benno Loewy, for appellant.

      Henry F. IAppold, for respondent.
   Per Curiam.

The judgment appealed from conforms to the order sustaining the demurrer, and which directs that the judgment appealed from should be entered. The judgment , should be sustained until this order is reversed, but no appeal has been taken from the order. No leave to amend can be given on this appeal, if it were proper to give it after the plaintiff has had a former opportunity to amend, as he saw fit.

Judgment affirmed, with costs.


author: Opinion by Sedgwick, Ch. J.

text:
    Frederick McLewee, respondent, v. Cassius H. Read, et al., appellants.
    Decided March 30, 1885.
    Appeal by defendants from judgment for plaintiff entered upon a verdict of a jury.
    Christopher Fine, for appellants. James 0. Foley, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion by Sedgwick, Ch. J.

Judgment and order

affirmed, with costs.


author: Opinion by O’Gorman, J.

text:
    Benjamin W. King, respondent, v. Amos A. Southwick, et al., appellants.
    Decided March 30, 1885.
    Appeal from judgment entered against both the defendants, on a verdict for $507.31, and from an order denying a motion for a new trial.
    Granger & Backus, for appellants. James M. Ferguson, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion by O’Gorman, J.

Judgment reversed, and new trial ordered, with costs to abide the event of the action.


text:
    James S. Flynn, respondent, v. The New York Elevated Ry. Co., appellant.
    Decided March 30, 1885.
    Appeal by defendant from judgment entered on verdict of jury for plaintiff. Julien

      T. Davies, for appellant. Louis J. Grant, for respondent.
    Before Sedgwick, Ch. J., O’Gorman and. Ingraham, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    John G. Scott v. Pedro Montells.
    Decided April 6, 1885.
    Exceptions of both sides ordered to be heard at general term.
    Alfred I. Walker and David L. Walter, for plaintiff. Kent & Auerbach, and Geo. W. Cotterill, for defendant.
    Before Sedgwick, Ch. J., O’Gorman, and Ingraham, JJ.
   Opinion by O’Gorman, J.

Exceptions overruled, and judgment for plaintiff ordered on verdict.


text:
    John Bean, an infant, respondent, v. Joseph P. Reynolds, appellant.
    Decided April 13, 1885.
    Appeal from judgment for plaintiff, entered on verdict of a jury.
    I. T. Williams, for appellant. James E. Kelley, for respondent.
    Before O’Gorman and Ingraham, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Matthew White, respondent, v. James Rintoul, appellant.
    Decided May 18, 1885.
    Appeal from judgment. •Davenport & Leeds, for appellant.
    Robertson, Harman & Cuppia, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Judgment affirmed, with costs.


text:
    De Lancey Nicoll, as receiver, v. John J. Spowers, Jr.
    Decided May 26, 1885.
    Plaintiff’s exception to dismissal of complaint ordered to be heard in the first instance ' at general term.
    Eugene H. Lewis, for plaintiff. P. Q. Eckerson, for the defendant.
   Per Curiam.

This case presents the same question as, and was argued and decided with Pancoast v. Spowers (ante, p. 523). The plaintiff’s, exception is overruled, and judgment is ordered for the defendant, with costs.


text:
    Rowland N. Hazard et al., appellants, v. John R. Caswell, at al., respondents.
    Decided June 1, 1885.
    Appeal by plaintiffs from judgment in favor of defendants, entered upon findings and conclusion by a judge at special term. The action was to procure a judgment that defendants be enjoined from using a label and tirade-mark, which the plaintiff claimed to have an exclusive right to use. The facts appear in the same case on appeal, 93 N. Y. 259, which was followed.
    Howard Mansfield and Henry E. Howland, for appellants. L. A. Lockwood and John L. Hill, for respondents.
    Before Sedgwick, Ch. J., .and Ereedman, J.
   Opinion by Sedgwick, Ch. J.

Judgment affirmed, with costs.


author: Opinion by Freedman, J.

text:
    Henry Gottgetreu, as assignee, &c., appellant, v. Alexander V. Davidson, as sheriff, &c., respondent.
    Decided June 1, 1885.
    Appeal by plaintiff from judgment entered in favor of the' defendant upon the verdict of a jury, and from order denying plaintiff’s motion for a new trial.
    Oliver W. Beals, for appellant. W. Bourke Cockran, for respondent.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
   Opinion by Freedman, J.

Judgment and order affirmed, with costs.


text:
    Henry C. Dart, respondent, v. William E. Laimbeer, appellant.
    Decided June 1, 1885.
    Appeal by defendant from judgment entered against him upon the verdict of a jury, and from order denying his motion for a new trial.
    Davies & Rapallo, for appellant. Wingate & Cullen, for respondent.
    Before Freedman and Truax, JJ.
   Opinion by Freedman, J.

Judgment and order affirmed, with costs.


text:
    Catharine Murphy, by guardian, respondent, v. Thomas Donohue, appellant. Felix Murphy, respondent, v. Thomas Donohue, appellant.
    Decided June 1, 1885.
    Two appeals by defendants from judgments for plaintiffs, entered on verdicts, and from orders denying defendant’s motions for new trials. The questions in the respective appeals were the same.
    Thomas P. Wickes and George L. Sterling, for appellant. John Henry Hull, for respondent.
    Before Sedgwick, Oh. J., and Freedman, J.
   Per Curiam.

Judgments and orders affirmed, with costs.


author: Opinion per Curiam.

text:
    The Canfield Rubber Co., appellant, v. Isaac B. Kleinert, respondent.
    Decided June 1, 1885.
    Appeal from order denying plaintiff’s motion to continue an injunction during the pendency of the action, and dissolving the prehminary injunction.
    Stearns & Curtis, for appellant. Stern & Myers, for respondent.
    Before Sedgwick, Oh. J., and Freedman, J.
   Opinion per Curiam.

Order affirmed, with costs.


text:
    Barker Place, as executor, &c., respondent, v. Jedediah K. Hayward, appellant.
    Decided June 1, 1885.
    Appeal from order of February 3, 1885, denying defendant’s motion to modify order of April 16, 1884.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
   Per Curiam.

The order appealed from should be affirmed, with costs.


text:
    Mary E. Post, as executrix, &c., respondent, v. William B. Dinsmore, as president, &c., appellant.
    Decided June 1, 1885.
    Appeal by defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying defendant’s motion on the minutes for a new trial.
    Charles M. Da Costa and William D. Guthrie, for appellant. Baldwin & Blackmar, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion by Freedman, J.

Judgment and order affirmed, with costs.


text:
    Louis Windmüller, et al., respondents, v. Horace K. Thurber, et al., appellants.
    Decided June 5, 1885.
    Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying motion for new trial.
    More, Arlington & More, for appellants. Cephas Brainerd, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion by Freedman, J.

Judgment and order affirmed, with costs.


text:
    Matthew Farley, appellant, v. The Mayor, &c. of N. Y., respondents.
    Decided June 19, 1885.
    Appeal by plaintiff from judgment for defendants entered upon a direction at trial term that complaint be dismissed, and also from order denying plaintiff’s motion for a new trial made upon the minutes.
    The action was for damages from the alleged negligence of the defendants, in allowing to remain over a coal-hole in a public street, an iron cover, which was alleged to be unsafe for the use of foot-passengers, in walking over it. The plaintiff slipped upon it and fell.
    Edward D. McCarthy, for appellant. David J. Dean, for respondents.
   Opinions by Sedgwick, Ch. J., and Freedman, J.

Judgment and order affirmed.


author: “ Truax, J.

text:
    C. Fayette Taylor, et al., respondents, v. The Metropolitan Elevated Railway Company, et al., appellants.
    Decided June 19, 1885.
    Appeal from an interlocutory judgment overruling demurrers to the supplemental complaint herein, and from the order overruling the de-
    murrers (see same case, ante, p. 299).
    Davies & Rapallo, for appellants.
    Win. W. Badger, for respondents.
    Before Sedgwick, Ch. J., and Truax, J.
   “ Truax, J.

The plaintiffs were allowed by' order to serve a supplemental complaint in addition to their former pleading, and therefore the supplemental and original complaint must be considered as one pleading. The defendants answered the original complaint and demurred to the supplemental complaint. The defendants had the right to answer or to demur to it. Having availed themselves of this right, they cannot at the same time demur to it. Judgment and order appealed from are affirmed, with costs, with leave to the defendants to withdraw demurrers, and to answer on payment of costs within twenty days after service of the order herein.” Sedgwick, Ch. J., concurred.


author: Opinion by Truax, J.

text:
    Margaret Morgan v. John B. McCaffrey.
    Decided October 5, 1885.
    This action was tried before the court and a jury. The court dismissed the complaint and ordered the plaintiff’s exceptions to be heard in the first instance at the general term.
    Samuel D. Levy and Benno Loewv, for plaintiff. Joseph Stewart and Ambrose Monell, for defendant.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
   Opinion by Truax, J.

Plaintiff’s exceptions overruled, and judgment ordered for defendant, with costs.


author: Opinion Per Curiam.

text:
    Charles W. Romeyn, respondent, v. Daniel E. Sickles, appellant.
    Decided October 5, 1885.
    Appeal from a judgment entered upon the report of a referee. Action to recover for services as architect in preparing plans, &c.
    Daniel P. Hays, for appellant. Theron G-. Strong, for respondent.
    Before Freedman and Truax, JJ.
   Opinion Per Curiam.

Judgment affirmed, with costs, upon the opinion delivered by the referee.


text:
    The Manchester Paper Co., appellant, v. Jacob R. Moore, administrator, &c., respondent.
    Decided December 7, 1885.
    Appeal by plaintiff from judgment entered on report of referee, dismissing complaint upon the merits.
    Burnett and Whitney, for appellant. Martin & Smith, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

The judgment should be affirmed with costs, on the opinion of the referee.


text:
    Henry Adams, respondent, v. Henry A. Bowerman, et al., appellants.
    Decided December 7, 1885.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    George W. Ellis, for appellants. Edward Merrill and Henry D. Hotchkiss, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion Per Curiam.

Judgment affirmed, with costs, upon the opinion of the referee.


text:
    B. R. Smith, et al., appellants, v. Charles C. Hardwick, respondent.
    Decided December 7, 1885.
    Appeal from judgment entered on referee’s report, dismissing complaint on the merits.
    R. L. Harrison, for appellant. Butler, Stillman & Hubbard, for respondents.
    Before Sedgwick, Oh. J., and Freedman, J.
   Per Curiam.

The judgment appealed from should be affirmed upon the opinion of the referee.


text:
    M. Warren Scott, appellant, v. John M. Baldwin, et al., respondents.
    Decided December 23, 1885.
    Appeal by plaintiff from judgment dismissing complaint upon the merits.
    Foster & Stephens, for appellant. P. & D. Mitchell, for respondents.
    Before Van Vorst and Freedman, JJ.
   Opinion by Freedman, J.

Judgment affirmed, with costs, upon the opinion of the chief judge, delivered at special term.


text:
    William M. Elias, appellant, v. Erastus Wilson, repondent.
    Decided December 23, 1885.
    Appeal by plaintiff from judgment dismissing the complaint, entered upon report of referee.
    L. B. Clark, for appellant. Charles A. Jackson, for respondent.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.
   Per Curiam.

Judgment affirmed, with costs.