author: Barnard, P. J.:

text:
    CHARLES B. FRANC, Respondent, v. HENRY H. DICKINSON, Appellant.

      Promissory note — delivered for vaVue with the understanding that it was to be paid only upon certain conditions — right of a bona fide purchaser to enforce payment thereof.

    In an action, brought upon a promissory note signed by the defendant, made payable to his own order and indorsed by him, evidence was given upon the trial tending to show that the consideration of the note was a purchase of stock by the defendant from J. L. Sterner, under an agreement that the seller would hold the note until the stock was sold; that the note was to be paid out of the sale of the stock, and was not to be paid if the stock was’not sold.

      Held, that, under this arrangement, the note had a valid and legal inception, and as it was delivered thereunder, and the plaintiff was an innocent purchaser of this negotiable paper for value, he was entitled to recover.
    That the fact that the defendant stated to the plaintiff, before the latter purchased the note, that he “ supposed it was all right, but that it was distinctly understood that the note was not to be negotiated,” did not constitute any defense thereto.
    Appeal by tbe defendant from a judgment entered, upon tbe trial of tbe action at tbe Kings County Circuit, in tbe office of tbe clerk of tbe county of Kings on November 7, 1888.
    Tbe action was brought by tbe plaintiff upon a promissory note made by tbe defendant to bis own order, and indorsed by him. Tbe errors complained of were tbe exclusion of certain evidence offered upon tbe trial, and tbe refusal to submit tbe issues to tbe jury.

      James Me Keen, for tbe appellant.

      Lockwood & Hitt, for tbe respondent.
   Barnard, P. J.:

Tbe evidence shows no defense to tbe note, which is tbe basis of this action. It is given to a Mr. Sterner under tbe following circumstances : “ Mr. Sterner said it was desirable that tbe stock should be controlled by a few persons; asked me to take fifty thousand shares ■ to control tbe stock, and asked me to give him notes for tbe amount; be quoted tbe stock at fifteen and twenty cents a share, and said that by a few parties controlling it, it would bring tbe price up in value; ” * * * “ be assured me that be would bold tbe notes, keep tbe notes in his possession till such time as the stock was disposed of, * * * that when the stock was sold I should have credited to me if there was anything over and above this price, it should be credited to my account, and these notes would be paid after the sale of the. shares of stock, and if the stock was not sold the notes were not to be paid.”

This transaction is a purchase of stock by the defendant under an agreement that the seller could hold the notes until the stock was sold, and then out of the sales the notes were to be paid, and not to be paid if the stock was not sold. Under this arrangement the note had a valid legal inception and was delivered thereunder. Sterner sold the note to Wilde, and Wilde to plaintiff before it matured. The case does not rest alone upon the transaction. Wilde before he purchased the note went to the defendant and was told by him that “ so far as giving the note to Sterner was con cerned I supposed it was all right, but that it was distinctly under .stood that the note was not to be negotiated.” Wilde purchased on the faith of this statement. There was no denial of the note itself or its consideration, or of its delivery. It was not to be negotiated by the person to whom it was given. This agreement. made no defense to the note if it was violated; and if there was a deeper meaning in it, the defendant should have stated it when he was asked about the note in such a way as to indicate a design to purchase it if it was a good note. The plaintiff was an innocent purchaser of negotiable paper for value, and was, entitled to recover. (Stalker v. McDonald, 6 Hill, 93 ; Seneca County Bank v. Neass, 5 Den., 329 ; Comstock v. Hier, 13 N. Y., 269.)

The judgment should, therefore, be affirmed, with costs.

Dykman, J, concurred ; Pratt, J., not sitting.

Judgment and order denying new trial affirmed,' with costs.


source: Caselaw Access Project

license: Public Domain

text:
    HENRY GRAUEL, Respondent, v. MARY SOELLER, Appellant.

      Lease — description of the demised premises- — -misunderstanding as to the premises covered thereby by one pa/rty only — not a ground for its reformation.

    Upon the trial oí an action, brought to recover the damages resulting from the alleged breach of a covenant of peaceable possession contained in a lease given by the defendant to the plaintiff, the alleged breach consisted in the defendant having, without plaintiff’s permission, rented a portion of the demised premises toa third party. The lease demised ‘ ‘ all that certain house and lot, ” known as the ‘ Island View Hotel,’ for the term of five years from the first day of April, 1887. The hotel building was a double house with a veranda in front, and the veranda roof was extended at the sides so as to cover a room at one end, which was used as a barber-shop, and a room at the other end, which was used as a billiard-room.
    Upon the trial evidence was given by both parties upon the question whether the, barber-shop was reserved when the lease was given, and the jury found that it was not expressly reserved, but that the landlord intended to reserve it, and that the tenant supposed he got it, and that, in point of fact, the barber-shop was part of the “ Island View Hotel.”

      Held, that as there was no reservation outside of the lease, and the lease, by its description of the property, included the barber-shop, there was no mutual mistake; and that the fact that the contract did not by its terms express the defendant’s views was no defense to the action.
    Appeal from a judgment recovered at tbe Kings County Circuit, which, was entered in the office of the clerk of Kings county on December 8, 1888, in favor of the plaintiff; and, also, from an order denying the defendant’s motion for a new trial, made on the minutes of the justice presiding at the trial, which,was entered in the same office on the same day.
    The action was brought by the plaintiff to recover damages alleged to have been caused by the defendant’s breach of a covenant for peaceable possession contained in a lease, which was dated January 19, 1887, and demised to the plaintiff for the terms of five years from the first day of April then next, “ all that certain house and lot known as the Island Yiew Hotel, situate in the town of Gravesend, at Sheepshead Bay, between the Brighton and Manhattan Beach railway crossing, with the appurtenances.”

      Oarjyenter Roderick, for the appellant.

      Albert A. Abbott, for the respondent.
   Barnard, P. J.:

On the 19th day of January, 1887, the defendant gave a written lease to the plaintiff of premises described therein as follows • “All that certain house and lot known as the Island Yiew Hotel ’ for the term of five years from the 1st of April, 1887.” The hotel build, ing is a double house with a veranda in front, and the veranda roof is extended at the sides so as to cover a room, which is the barbershop, at one end of the house, and at the other end to cover a room used as a billiard room. The controversy is about the barber-shop. The proof was conflicting whether the barber-shop was reserved when the lease was given.

The jury have found that it was not expressly reserved, but that the landlord intended to reserve it, and the tenant supposed he got it, and that, in point of fact, the barber-shop is part of the “ Island Yiew Hotel.” The reception of the fact that a barber-shop was necessary to the hotel was proper. The question was whether the plaintiff hired the barber-shop. The refusal of the court to permit the defendant to testify to her instructions, given to Mr. Burgess in regard to the lease, was subsequently cured by admitting rejected testimony. She testified that she told him that the lease was to be for five years, payment in three terms, without the barber-shop. The case became, then, a simple one. There was no reservation outside of the lease. The lease included the barber-shop by its description of the property, and the defendant didn’t- intend to give a lease of the barber-shop. There was no mutual mistake. The contract did not express the defendant’s view of its terms. This is no defense to the contract. (Jackson v. Andrews, 59 N. Y., 244.) The form of the action is not objectionable; the facts are stated; the averment is that the defendant rented premises to plaintiff at a designated rent, and, without plaintiff’s permission, rented out a portion of it to a third party as her tenant. The answer denied the leasing of the barber-shop, and asked a reformation of the contract to make it express the agreement between the parties. There was no error in refusing to charge upon the effect of the covenant that the lessee should not underlet the premises, or any part thereof, as bearing upon tbe disputed question of fact whether tbe barbershop was reserved or not. ¥e think tbe trial judge was right, and that it bad no bearing on tbe case.

Tbe judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    ISAAC EMIEL JACOBSON, an Infant, by JACOB JACOBSON, his Guardian, Appellant, v. JAMES CORNELIUS, Respondent.

      Machinery — what omission therein does not constitute actionable negligence on the pan’t of the master.

    In an action, brought to recover damages alleged to have been sustained by the plaintiff while in the employment of the defendant, by reason of the neglect of the defendant to provide safe and proper machinery and appliances for the use of the plaintiff in the discharge of his duties, it appeared that the plaintiff, who was about eighteen years of age, had been employed in the defendant’s machine-shop about six months before the occurrence of the accident, which arose from the plaintiff’s arm being caught in the belt connected with the defendant’s machinery.
    The only proof given upon the trial tending to show that the machinery in such shop was defective and could have been put in and out of gear in a better manner, was evidence to the effect that there was no counter-shaft, and no fast and loose pulley, technically so-called, which, had- they existed, would have made it safer to connect and disconnect the power.

      Held, that this omission was not actionable negligence, and that the plaintiff was properly nonsuited.
    Appeal from a judgment dismissing tbe complaint upon tbe merits, recovered at tbe Kings County Circuit, and entered in tbe office of tbe clerk of tbe county of Kings on tbe 18tb day of October, 1888.'
    The action was brought to recover damages for personal injuries sustained by tbe plaintiff by reason of tbe alleged imperfect condition of tbe machinery furnished by tbe defendant to tbe plaintiff, because of which tbe plaintiff was caught in a belt connected therewith, and bis arm was seriously injured.

      Henry W. Bates, for the appellant.

      B. F. Tracy, for the respondent.
   Barnard, P. J.:

The evidence makes out no cause of action, and the plaintiff was properly nonsuited. The plaintiff was about eighteen years of age and had been employed about six months in the defendant’s machine-shop. There was no proof tending to show that the machinery by which the plaintiff was injured was defective in such respects as would support an action for neglect against the master.

The general rule is that the employee assumes the risks of the employment. The master is not bound to furnish the yery best and safest machines. The implement must be reasonably safe of its kind and adapted to the employment. The only defect alleged or proven by the evidence is that the machine by which plaintiff was injured could be put in and out of gear in a better manner. There was no counter-shaft and no fast and loose pulley, technically so-called, which would have made it safer to connect and disconnect the power from the machine. This omission was not actionable negligence. (Lafflin v. Buffalo, etc., R. R., 106 N. Y., 136.)

This appeal does not present the merits. There was no exception to the ruling of the judge in dismissing the action, and there was no motion for a new trial on the minutes or on a case made at a Special Term, according to section 999, Code of Civil Procedure. No question as to merits can, therefore, be raised upon this appeal. (Third Avenue R. R. v. Ebling, 100 N. Y., 98.)

Judgment affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Barnard, R. J.:

text:
    ANDREW J. CLARK, Administrator, with the Will Annexed of SUSAN J. CLARK, Deceased, Respondent, v. HENRY L. COE, Appellant.

      Executor — securing payment of his individual debt by a mortgage upon chattels held by him as executoi'. .
    In an action, brought by the administrator under the will of Susan J. Clark, to recover the possession of certain household furniture, it appeared that the articles in question belonged to Susan J. Clark at the .time of her death, and that her son, Charles Z. Pond, who was her executor, took possession of her household furniture and used it in his private residence, which he leased from the defendant Coe. The rent being in arrears, Pond, as an individual, executed a chattel mortgage on the furniture to the defendant Coe to secure the payment of such rent.

      Held, that the landlord could not hold the furniture as against the plaintiff.

      Leitch v. Wells (48' N. Y., 585); McNeil v. Tenth National Bernik (46 id., 325) distinguished.
    That the very fact that the purchaser secured payment of the individual debt of the executor by a mortgage upon the goods of the lattei’s testator carried upon the face of the transaction its own condemnation.

      Field v. Schieffelin (7 Johns. Cli., 150) followed.
    Appeal from a judgment recovered upon a trial at tbe Kings County Special Term, which was entered in the office of the clerk of Kings county on the 24th of September, 1888.

      Frank Rudd, for the appellant.

      Joseph U. Atkinson, for the respondent.
   Barnard, R. J.:

The goods in question belonged to Susan J. Clark at the time of her death. Charles Z. Pond was her executor. After her death Pond took possession of the property, which consisted of household furniture, and it was in use by the executor in his private residence. The defendant was the lessor of Pond, and the rent was in arrears. Pond, as an individual, executed a personal mortgage on the prop erty to defendant to secure the payment of the executor’s own debt for rent. The.question is whether the landlord could hold the title against the plaintiff, who has been appointed administrator under the will annexed, in the place of the executor Pond, who was removed from his trust.

The cases are uniform that a purchaser for value, and in good faith, from an executor • will acquire a good title, even if the executor misapplies tbe proceeds. (Leitch v. Wells, 48 N. Y., 585.) So, also, one wlio loans money on the securities of the estate is protected. (McNeil v. Tenth Nat. Bank, 46 N. Y., 325.) This case does not fall within these cases. The executor only conveyed hisown individual title. lie had none. If the evidence- is to be judged as if he conveyed as executor, the conveyance was in payment of his private debt, and is, on this account, an exception to the rule that purchasers for value are protected. In Field v. Schieffelin, (7 Johns. Ch., 150), the chancellor states the rule in such cases as follows, in reference to purchasers from an executor, in payment of the present debt of the executor, “ the better doctrine is that in such a case he does buy at his peril.” The very fact that a purchaser extinguished this debt of the executor to him with the goods of the testator carries its own condemnation on the face of the transaction.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Application of ELEANOR J. BARTLETT, Respondent, v. THE VILLAGE OF TARRYTOWN, Appellant.

      Village street — change of grade in — compensation to the owner of abutting land.

    The petitioner in this matter, who owned land on both the old and the new parts of John street, in the village of Tarry town, in order to enable the village, in 1888, to open John street from its northerly end to Main street, conveyed to the village a right to extend John street to Main street. After the opening of the new portion, as a public highway, the village, by resolution, cut down and changed the surface and level of the street, in both the old and the new parts, so as to make the plaintiff’s land from eighteen inches to seven feet above the grade of the street as altered. The plaintiff applied to have a commission appointed to appraise the damage sustained by hei.

      Held, that the plaintiff’s case was covered by the terms of chapter 118 of 1883, providing that when the grade of any street in any incorporated village shall be changed so as to interfere with the buildings, or the use thereof, or when such change shall injure real property, the owner may have a commission appointed to appraise the damage sustained.
    That it was no answer to the application for a commission that John street, before the change, was a public street, of which the village did not'fix the grade.

      That the village took the street, for the purposes of this act, as it was, and the change in grade thereafter made, causing damage to the landowners, was within the intent of the act.
    That the fact that the extension of John street was under a deed from the petitioner had no materiality, as the deed was for a public road “ and for no other uses or purposes; ” and that the road, once established, the petitioner was entitled to be compensated for a change in the grade injurious to her, equally with the other owners of land thereon.
    Appeal from an order, made at the W estchester Comity Special Term, which was entered in the office of the clerk of W estchester county on December 10, 1888, appointing commissioners to ascertain and determine the amount of damages that had been sustained by the petitioner, Eleanor J. Bartlett, by a change of grade in a street in the defendant village.

      J. 8 Millard, for the appellant.

      L. T. 7ale, for the respondent.
   Barnard, P. J.:

The village of Tarrytown, an incorporated village of the State, in 1888 opened John street from its northerly end to Main street; the street before its extension had been a eul de sac. The petitioner conveyed to the village the right to extend John street to Main street. The petitioner owned lands both upon the old and new parts of John street. After the opening of the new portion as a public highway, the village, by resolution, cut down and changed the surface and level of the street in both the old and new parts, so as to make the plaintiff’s lands from eighteen inches to seven feet above the grade of the changed street. By chapter 113, Laws of 1883, it is provided that when the grade of any street in any incorporated village shall be changed so as to interfere with the buildings or the use thereof, or when such change shall injure the real property, the owner may have a commission appointed to appraise the damages sustained. The plaintiff’s case is embraced by the terms of this act. It is no answer to the application for the commission that John street before the change was a public street, and that the village did not fix its grade. The village took the street for the purposes of this act as it was, and a change in grade thereafter made, causing damages to the landowner, was within the act. The fact that the extension of John street was under a deed from the petitioner has no materiality. • The deed was for a public road, “ and for no other uses or purposes.” The road once established, the petitioner was to be compensated for a change of grade in the street injurious to her, equally with other owners of land on'the street.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


author: Barnard, P. J.

text:
    In the Matter of W. F. WILEY for a Commission.
   Barnard, P. J.

This appeal is from an order appointing a commission upon the petition of another landowner oil John street. This petitioner only owned land on the old street where the village had never established a grade before the extension. On the Bartlett appeal we held that the old street was taken as an established highway when the village was incorporated, and that a subsequent change of grade was within the act. The street was lower from one and a-half to four feet. The petitioner’s right to a commission is thus established, and the extent of the injury is for the commission. The other defense to the granting of the petition is, that there is an action pending, brought by petitioner against the village. There is no conflict between the two proceedings. The action is for an injury to the petitioner’s possession of the land on the street. The village pleaded that it was a highway in 1811, and has been ever since. In this proceeding it is admitted that John street (the old part) was an open public street when the village was incorporated, about the year 1811, and it has been used as such until this time. The commissioners are to assess the damage to the land adjoining such highway.” The action thus affects the injury to the land in the highway, and the other proceedings the land adjacent.

The order, therefore, was right and should be affirmed, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


author: Barnard, P. J. :

text:
    EDWARD HAYWARD, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Right to commence a new action, within one yean' after a reversad of a judgment or a ■ dismissed of an action, under section 405 of the Code of Civil Procedure.

    In an action, brought in May, 1887, to recover for injuries sustained in consequence of the defendant's negligence in November, 1883, the complaint alleged that an action for the same cause was commenced within the three years required by section 883 of the Code of Civil Procedure; that it was brought to trial; that the proof failed to support the action, and that in consequence thereof the plaintiff was permitted to withdraw a juror upon condition that the case be set down for trial on the first Monday of April, 1887, and upon the further condition that the plaintiff pay twenty dollars trial costs and disbursements upon the former trial within ten days; that the time to make this payment was twice extended, but as no payment was made the case was, on April twentieth, dismissed for “ failure to pay said costs ” and a final judgment was entered.

      Held, that the plaintiff did not come within the provisions contained in section 405 of the Code of Civil Procedure, which provides that when a judgment is reversed on appeal without awarding a new trial, or the action is terminated in any other manner than by voluntary discontinuance, a dismissal of the complaint from neglect to prosecute the action, or a final judgment on the minutes, the plaintiff may commence a new action within one year after such reversal or termination.
    That the fact that the failure to prosecute was caused by the inability of the plaintiff to pay the costs awarded against him, upon the failure of his proof upon the trial, as a condition to his right to a further trial with additional proof, did not excuse the neglect to prosecute.
    That the power of the court to dismiss an action for a failure to obey its orders was a general power inherent in courts of justice, and was expressly given by section 822 of the Code of Civil Procedure.
    That the action was barred by the statute of limitations.
    Appeal from a judgment rendered at tbe Kings County Circuit in favor of tlie plaintiff, which was entered in the office of the clerk of said county on the 19th day of April, 1888 ; and, also, from an order denying the defendant’s motion to set aside the verdict and for a new trial upon the minutes of the justice presiding at the trial, which was entered in the said clerk’s office on the 23d day of April, 1888.

      Davies, Oole c& Dapallo, for the appellant.

      George W. Wilson, for the respondent.
   Barnard, P. J. :

This action is brought to recover for injuries suffered in consequence of the defendant’s negligence. The injury was occasioned in November, 1883, and this action was commenced in May, 1887. By section 383 of the Code of Civil Procedure such an action is barred in three years. To meet this the complaint avers that an action for the same cause was commenced within the three years; that it was brought to trial on the 7th of March, .1887; that the proof failed to support the action, and, in consequence thereof, the plaintiff was permitted to withdraw a juror upon condition that the case be set down for trial on the first Monday of April, 1887, and upon the further condition that the plaintiff pay twenty dollars trial costs and disbursements of defendant upon the former trial within ten day's. The time was twice extended in which to make these payments. The jiayments were never made. On the twentieth of April the case was dismissed for failure to pay said costs,” and final judgment was, therefore, entered. The costs were not paid because the. plaintiff was unable to pay them. Section 405' of the Code provided that when a judgment is reversed on appeal without awarding a new trial, “ or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the minutes,” the plaintiff may commence a new action within one year after such reversal or termination. The plaintiff does not come within this exception. The final action was dismissed for a failure to prosecute. That the failure to prosecute was caused by the inability of the plaintiff to pay the costs awarded against him upon the failure of his proof at the trial, and as a condition of his right to a further trial with additional proof, does not destroy or excuse the neglect to prosecute. It was a refusal to obey the order of the court, and was voluntary, even if he had not the necessary money with which to pay the costs imposed as a condition of a favor granted to him. A dismissal for a failure to obey orders is a general power inherent to courts of justice. (Gross v. Clark, 87 N. Y., 272.) The power is expressly' given by section 822 of the Code. The case is stronger than Morange v. Meigs (54 N. Y., 208). In that case there was a dismissal of the plaintiff’s complaint for a refusal to go on with the trial. In the present case the plaintiff escaped a nonsuit on the condition. that lie would pay certain costs within a certain time, and a refusal to comply must be deemed voluntary when no application was made to extend the time in the court where the trial was pending, and such a failure is voluntary and is a failure to prosecute. (Otis v. Gray, 3 N. Y. Monthly Bulletin, 11; Moloughey v. Kavanagh, 4 id., 43.) We think, therefore, that the action was dismissed by the Court of Common Pleas in New York for neglect to prosecute the same, and that the statute of limitation has barred the claim.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

Pratt, J. concurred.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    WILLIAM ZIEGLER, Respondent, v. JOSEPH C. HOAGLAND, CORNELIUS N. HOAGLAND and RAYMOND HOAGLAND, Appellants, Impleaded with the ROYAL BAKING POWDER COMPANY.

      Spoliation of a corporation by an excessive increase of sala/ries, made to induce a stoelcholder to sell his stock, enjoined — hypothetical question.

    In an action, brought to restrain the officers of the Boyal Baking Powder Company, a corporation organized under the general manufacturing act and doing business in the city of New York, from paying certain sums voted to said officers as salaries, it appeared that for several years the company had been managed by the owners of its stock, in harmony and at small salaries, until the president of the company wished to purchase a part of the plaintiff’s stock. To compel the sale a threat was made to raise the salaries. A subsequent raise followed. Again there was, because of a like refusal to sell, another similar threat, and this was followed by an extremely large increase; and this was followed by a threat that there would be another increase, accompanied by an averment that there was no limit to the raise, except the will of the trustees.

      Held, that the allowance of such salaries was a spoliation of the company, and that the trustees would not be permitted to take such action.
    That a hypothetical question, based upon the net profits of the corporation, and calling for an .opinion of the witness thereon, was properly rejected.
    That the judgment in favor of the plaintiff should be affirmed.

      Ajppeal from a judgment, recovered at the Kings County Special Term upon the trial of the action before the court without a jury, which was entered in the office of the clerk of said county on the 2d day of July, 1888.
    The action was brought to restrain the officers of the Royal Baking Powder Company, a corporation organized under the general manufacturing act and doing business in the city of New York, from paying certain sums voted to said officers as salaries. The complaint was made by a minority stockholder, the balance of stock being held by the appealing defendants.

      John M. Bowers, for the appellants.

      W. J. Ga/ynor and WilUam G. Be Witt, for the respondent.
   Barnard, P. J. :

The Royal Baking Powder Company was organized in 1873. The plaintiff was one of the incorporators and the defendants Cornelius C. Hoagland and Joseph C. Hoagland. The company had great success. In 1881 the plaintiff owned 690 shares; Joseph C. Hoagland 192 shares; Cornelius N. Hoagland 110 shares; Raymond Hoagland 8 shares, making 1,600 shares, which was the full number of shares representing the capital, the par value of $100 each share. The corporation was managed by three trustees, who were always stockholders, and the plaintiff was one until the election in 1887. Up to this time the officers were a president, treasurer and secretary, each having a salary of $1,800 a year. In the fall of 1886 Joseph C. Hoagland requested the plaintiff to sell a part of his stock to him. The plaintiff refused to sell, and Hoagland threatened to raise the salaries if he did not sell the stock to him. The net earnings were enormous, being 450 per cent in 1887. In the beginning of 1887 the defendant, Joseph C. Hoagland, sold eight shares of his stock to his son Raymond, then a minor. At the meeting in 1887 the three Hoaglands all voted upon the stock, and plaintiff was not elected, but Joseph O. Hoagland, his son, and Cornelius Hoagland, a brother, were elected trustees. The three trustees then elected Joseph C. Hoagland, president; Cornelius N. Hoagland, vice-president; and Raymond Hoagland, trustee, and voted to the president $25,000 salary a year, $10,000 to the vice-president and $2,500 to the treasurer. In the summer of 1887 Joseph C. Hoagland again requested the plaintiff to sell a part of his stock, and made the same threat in case of refusal, that the salaries would be again raised. The plaintiff again declined, and in the election of 1888 the same trustees were elected, and the president’s salary was raised to $50,000, and the vice-president to $30,000 and the treasurer to $6,000. There was a tartar company, which was controlled by the baking' powder company, and was managed before the year 1887 by the officers of the baking powder company, without any salary. In 1887 the same trustees of the powder company, by its stock, voted themselves trustees and officers of the tartar company, and voted a salary of $7,500 to the president, $6,000 to the vice-president and $1,000 to the treasurer. This was again done in 1888. After the election, in 1888, the president threatened a further raise in the salary if the plaintiff did not sell his stock, and he then informed him that the trustees had taken légal advice, and were .advised that they had the right to put the salaries of the said officers at any figure they saw fit.

The finding of the judge upon this narrative of facts that the salaries were not earned, and were voted for the fraudulent purpose of coercing the plaintiff into selling his stock, is fully supported by the evidence. The company had been managed by the owners of its stock in harmony and at a small salary until the president of the company wanted a part of the plaintiff’s stock. To compel the sale a threat was made to raise the salaries. A subsequent raise followed. Again, there was for the same refusal to sell, another similar threat, and this was followed by an extremely large increase, and this was followed by a threat that there would he another increase, accompanied by an averment that there was no limit to the raise, except the will of the trustees. Such action was spoliation of the company for an unworthy purpose, and trustees are not permitted to do. (Butts v. Wood, 37 N. Y., 317 ; Ogden v. Murray, 39 id., 202.) Without examining specifically the several questions as to the value of the services of these officers — as they were all of a similar nature. It appears that such values, based upon the opinion of witnesses, and upon amounts paid by other corporations and private firms, were received. This is in accordance with the rules in all cases where values of services are in question. A hypothetical question, based upon the net profits and calling for an opinion of the witnesses thereon, was properly rejected. • The value of the services, as found by the judge, is sustained by the evidence. There was a conflict with respect to it, but the weight of the testimony would carry the salaries to no greater amount than was found.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. STEPHEN L. VANDERVEER, Appellant, v. THOMAS A. WILSON and Others, Assessors, etc., Respondents.

      Assessment of land lying pa/rtl/y in Brooklyn and partly in the adjacent-town, where the owner resides in that pa/i’t situated in Brooklyn — chap. 315 of 1886 — chap. 152 of 1878 — B. S., pt. 1, chap. 13, tit. 2, a/rt. 1.
    In proceedings taken to review an assessment, made by the board of assessors of the city of Brooklyn] on the land of the relator which was situated partly in the town of Flatlands and partly in the twenty-sixth ward of the city of Brooklyn, it appeared that the relator’s residence was upon that portion of the land which was situated in the twenty-sixth ward, and that the assessors assessed the whole of said land, for the purposes of taxation, as though it were all situated in the twenty-sixth ward of said city.
    Held, that the judgment should be affirmed as the assessment was authorized by chapter 315 of the Laws of 1886, which amended article 1 of title 2 of chapter 13, part 1 of the Revised Statutes, by adding a new section which provides that “when the line between two towns, wards or counties divides a farm or lot, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides; if unoccupied each part shall be assessed in the town, ward, village or county where the same shall lie.”
    That chapter 152 of 1878, permitting lands occupied by a person other than the owner to be assessed to the occupant as lands of residents, or to the owner if he lived in the county, had no reference to lands divided by a town or county line in respect to the place of taxation; nor has chapter 411 of the Laws of 1885, as the latter act provides that “nothing herein contained shall be construed as requiring or authorizing any real or personal property to be assessed or taxed in any other town, city or village than as provided by existing laws.”

      Appeal from a judgment, rendered at the Kings County Special Term, in proceedings instituted by certiorari to review an assessment, made by the board of assessors of the city of Brooklyn, of the lands of the relator, which judgment was entered in the office of the clerk of Kings county on the 6th day of February, 1889, and adjudged that the assessment made of the said relator’s lands for the purpose of taxation was legal, and the proceedings of the assessors were affirmed.
    The relator was the owner of a farm in Kings county, which was situated partly in the town of Flatlands and partly in the twenty-sixth ward of the city of Brooklyn. The relator’s residence was .situated upon that portion of the land situated in the city of Brooklyn. The respondents, the Assessors of the City of Brooklyn, assessed the whole of the said land, for the purpose of taxation, as though all the land was situated in the said city. The writ of certiorari was granted to review their proceedings in that particular.

      John U. Kemble, for the appellant.

      Almet F. Jenks, for the respondents.
   Barnard, P. J.:

• There has always been a difference in the meaning of unoccupied lands and non-resident lands. Lands owned by a resident of a town where it was situated, but occupied by another person, could be assessed to either owner or occupant. Unoccupied lands not owned by a resident of a town were non-resident lands. (1 R. S. [2d ed.], m. p. 389, §§ 2, 3.)

Chapter 315 of the Laws of 1886 keeps up this distinction. Occupied lands, when divided by a town or county line, shall be assessed in a town where the occupant resides. The findings show a case of this kind. A farm of land in two towns occupied by the relator was assessed in the town where he lived. Chapter 152, Laws of 1878, permits lands occupied by a person, other than the owner, to be assessed to the occupants as lands of residents, or to the owner if he lives in the county. The act had no reference to lands divided by a town or county line in respect to the place of taxation. Chapter 411 of the Laws of 1885 introduced a new principle in taxation in counties containing upwards of 300,000 inhabitants. The taxes were to be assessed upon the land, and not upon the occupant or owner. (Sec. 3.) The place of taxation of lands as such is still preserved as it had been. The act was express in its terms that “nothing herein contained shall be construed as requiring or authorizing any real or personal property to be assessed or taxed in any other town, city or village than as provided by existing laws.” (Sec. 8.)

Chapter 315, Laws of ,1886, was in force. It had reference solely to lands occupied and unoccupied, as such lands had been defined in the Revised Statutes.

The order should, therefore, be affirmed, with costs.

Pratt, J., concurred

Judgment affirmed, with costs.


text:
    ROBERT PAYNE, MICHAEL CHAUNCEY and WILLIAM E. S. FALES, Respondents, v. THE CITY OF BROOKLYN, Appellant.

      Commissioners of estimate and assessment — right of action against the city for their fees.

    The complaint in this action alleged that, at the instance and upon the application of the defendant, the plaintiffs were appointed by the Supreme Court commissioners of estimate and assessment in the matter of improving Fourth avenue, Kings county; that they accepted the offices, performed the duties and made a report, which the defendant received from the commissioners upon the express promise that the city would pay the commissioners’ fees when the report was confirmed; that the city procured it to be confirmed and refused to pay the fees.
    Upon an appeal from a judgment overruling a general demurrer interposed by the defendant:
    Held, that as the commissioners’ fees were made a part of the expenses, and chargeable upon the lands benefited by the improvement, and as, when the report was confirmed, the city had the power to raise the fund, and promised to pay the commissioners from this source, there was sufficient stated in the complaint to support the promise to pay, even if the money had not been actually collected when the promise was made
    That, as the plaintiffs had a joint right of action, they could unite in a common action to recover it.

      Appeal by the defendant from a judgment entered upon an order made at the Kings County Special Term, which was entered in the office of the clerk of Kings county on the 15th day of March, 1884, overruling a demurrer interposed to the complaint in this case, and adjudged that the plaintiffs recover of the defendant $544.10.
    The action was brought to recover certain fees due to the ' plaintiffs who had been appointed commissioners to examine into and report upon the improvement of Fourth avenue, a public thoroughfare in Kings county, who had qualified, entered upon the discharge of their duties, executed the same, made a report in the premises and notified the defendant thereof, and of their fees and disbursements, amounting to $405
    The plaintiffs alleged that the defendant agreed to pay the plaintiffs said sum immediately upon the confirmation of said report by the court, and that the plaintiffs thereupon delivered said report to the defendant; that thereafter, at defendant’s request, said report was ratified, confirnied and approved by the court, and that, nevertheless, the defendant had neglected and refused to pay said sum of $405 to the plaintiffs.

      John A. Taylor, for the appellant.

      William E. S. Eales, for the respondents.
   Barnard, P. J.:

The complaint states that, at the instance and upon the application of the defendant, the plaintiffs were appointed by the Supreme Court as commissioners of estimate and assessment in the matter of improving Fourth avenue, one of the streets of the city. It is further stated therein that they accepted the office and performed the duties and made a report therein, which the defendant received from the commissioners upon the express promise that the city would, pay the commissioners’ fees when the report was confirmed. That the city procured such confirmation and refused to pay the fee. To this pleading there is a general demurrer.

The improvement of Fourth avenue, under the defendant’s charter, was required to be made in this way: The commissioners’ fees are made a part of the expense, and, as such, chargeable upon the lands benefited by the improvement. The usual method is to pay out of tbe moneys collected as tbe result of tbe assessment, on tbe basis of tbe report. When tbe report was confirmed tbe city bad tbe power to raise tbe fund, and promised to pay tbe commissioners from tbis source. We think tbe city could legally do tbis. Tbe service bad been rendered substantially at tbe request, and certainly for tbe benefit, of tbe defendant. Tbe sole power to collect tbe money was given to it, and tbis is sufficient to support the promise to pay, even if tbe money bad not been actually collected when promise was made. It was a city asset which could be anticipated by tbe city if an affirmative agreement was made for that purpose. Tbe plaintiffs have a joint right of action. When parties have a common interest in tbe money they can unite in a common action to recover it. (Marshall v. Moseley, 21 N. Y., 280.)

Tbe judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Order overruling demurrer to complaint and judgment thereon affirmed, with costs.


text:
    JANE S. AVERY, Respondent, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant.

      Insurance policy — 'proper construction oj, when determined by a preliminary paper.

    In an action, "brought to recover under a policy of insurance issued on the tontine savings fund plan, the complaint alleged that a contract of insurance on the tontine plan had been entered into, by which it was agreed by the insurance company that at the end of the tontine period the holder of the policy would be entitled to receive $7,170 in cash, if he desired to withdraw, on receipt of the cash value; that the terms of the contract were contained in a paper which was preliminary to the policy, but which was referred to and treated by the parties as containing the true construction of the conditions contained in the policy itself.

      Held, that, under such complaint, the plaintiff was entitled to reform the policy so as to make it conform to the real contract, and to recover upon the policy as thus reformed.
    That the objection that the contract, as set forth in the complaint, would be subversive of the tontine plan, was not applicable to the pleading, although it might be pertinent upon the question as to whether the insurance company ever made such a contract as was alleged in the complaint.

      Appeal by the defendant from an interlocutory judgment, rendered at the Ivings County Special Term, and entered in the office of the clerk of the county of Kings on the 29th day of December, 1888, which overruled the demurrer of the defendant to the complaint.
    The complaint, among other things, alleged that theretofore, and about the month of March, 1873, the defendant solicited one Irving M. Avery, the husband of this plaintiff, to insure his life in the defendant company, and to take out a policy known as the tontine savings fund policy; that said Irving M. Avery thereafter contracted with the defendant to take out and receive such a policy, and the defendant thereupon agreed to deliver to said Irving M. Avery such a policy upon the following terms: “ In consideration of the payment tó the defendant of a premium of three hundred and thirteen dollars per year, the life of said Irving M. Avery to be insured, for the sole use of this plaintiff, in the sum of ten thousand dollars, for the term of his natural life, said sum to be paid if death should occur prior to the expiration of said fifteen years; that if said Irving M. Avery should live to the end of the fifteen years aforesaid, she should have three privileges, any one of .which she might elect, among which privileges was the following: To withdraw in cash, at the end of fifteen years, if said Irving M. Avery should then be alive, seven thousand one hundred and seventy dollars.” That thereafter defendant gave to said Irving M. Avery a memorandum, a copy of which is hereto annexed, marked Exhibit “ A,” and made a part of this complaint, and stated and represented and agreed with said Irving M. Avery that the options and sums therein mentioned in paragraphs first, second and third thereof were the privileges and sums which she should receive, whereupon said Irving M. Avery agreed to take out and receive said policy according to said terms; that thereafter, and on or about the 28th day of March, 1873, the defendant tendered to said Irving M. Avery a contract or policy of insurance, a copy of which is hereto annexed, marked Exhibit “ B,” and made a part of this complaint; that prior to the payment of the first premium thereunder, and before accepting said policy, said Irving M. Avery again asked in reference to the interpretation and meaning thereof, and whether the plaintiff would receive the amounts theretofore agreed upon and mentioned in paragraphs first, second and third of Exhibit “ A,” and especially whether she would receive, at the end of fifteen years, if said Irving M. Avery should then be alive, if she should so elect, the cash sum of $7,170, and the defendant, by its then acting president, George W. Phillips, referring to said paragraphs first, second and third of said memorandum, Exhibit “ A,” represented, agreed and stated that such was the contract, and that plaintiff should and would receive the sums, privileges and amounts in said paragraphs stated; whereupon said Irving M. Avery, in reliance upon said representations, statements and said contract as so interpreted, paid the first premium of $162.80 and received and accepted said policy, and thereafter continuously paid semi-annual premiums of $162.80 for a period of fifteen years. * * *
    Plaintiff demanded judgment against the defendant. That the said contract or policy, Exhibit “ B,” be reformed, as to paragraph fifth of the special agreement and conditions in said policy contained, by incorporating therein, to wit, in folio 11 of said exhibit “B,” in the first option, as the amount to be withdrawn in cash, the sum of $7,170; and that plaintiff have judgment against the defendant for the sum of $2,093.20, with interest thereon from the 6th day of January, 1888, together with the costs of this action.
    EXHIBIT “A.”

    The Equitable Life Assurance Society of the United States — Tontine Savin&s Eund Policy.

      Estimated liesults:

    Amount, $10,000. Age, 40. Premiuip, $313. Years, 15.
    Total premiums paid in 15 years........ $4)695 00
    Reserve on policy.......................... 2)515 00
    Accumulated dividends..................... 4;655 00 99$
    Total cash value........................... 7)170 00 153$
    Paid-up policy............................. 10)000 00
    Dividend after 15 years..................... 108 00
    Net income...'............................. 225 00
    You pay $313 annually for fifteen years, and if death occurs prior to that period your heirs will receive $10,000. If, however, you. live to the end of the fifteen years you will have three privileges, any of which you may elect:

      First. Withdraw, in cash, your accumulated dividends, $4,655, which is ninety-nine per. cent of the premium paid, and continue your policy in force for $10,000, by paying the same premium, $313, less an annual cash dividend of $108, which dividend will increase yearly.

      Second. Terminate your insurance by withdrawing the total cash value of your policy, $7,170, which is the amount of the reserve and accumulated dividends added together, being equivalent to returning you in cash $15,300 for every $10,000 paid, after having insured you for fifteen years for $10,000.

      Third. Take a paid-up policy, payable at death for $10,000, upon which no further premiums will be required, but, on the contrary, you will receive an annual cash income, commencing with $225 and increasing as zong as you live.
    GEO. T. G. WHITE,

      General Agent, 120 Broadway.

    The fifth special agz’eement and condition z-elative to the policy was as follows:

      Fifth. That upon the completion of the tontine dividend period of the 30th December, 1887, provided this policy shall not have been terminated previously by lapse or death, the legal holders of-this policy shall have the following option: Eirst, to withdraw in cash this policy’s entire share of the assets, whether in the reserve fund proper or in the accumulated surplus; secondly, to convert the same into a paid-up policy for an equivalent amount, provided always that if the amount of said paid-up policy shall exceed the original amozmt of the assurance, a certificate of good health from one of the society’s medical examiners shall be required; 'or, thirdly, to continue the assurance for the oziginal amount derived from such annuity, together with dividends on this policy shall exceed the amount of premiums due thez’eon, the excess shall be paid in cash to said Irving M. Avery.
    ' Charles B. Alexander, for the appellant.

      Phillips & Avery, for the respondent.
   Barnard, P. J.:

In March, 1813, Irving M. Avery procured a policy on his life for $10,000. The policy was issued on the tontine savings fund plan, and was issued for the benefit of plaintiff if living at his death, and if not living, then to his children. The end of the tontine period was fifteen years. At the end of the fifteen years, if Irving M. Avery was alive, it was the right of the holder of the policy to withdraw the entire share of the assets, whether in the reserve fund proper or in the accumulated assets. Irving M. Avery survived the prescribed period, and the plaintiff’s husband, who then held the policy, elected to withdraw the entire cash assets according to the fifth condition of the policy which is annexed to the complaint. The company paid him $5,016.80. He demanded $1,110, which was refused. The basis for this demand was that the real contract between the parties called for the payment of this sum of $1,110. The assured assigned the policy to the plaintiff and she brings this action. The question arises upon demurrer. The plaintiff seeks to reform the policy under which she has no claim, and to make it conform to the real contract and to recover upon the reformed contract. The action is proper. A- contract may be reformed and enforced as reformed in the same action. (Maher v. Hibernia, Ins. Co., 67 N. Y., 283 ; Van Tuyl v. Westchester Ins. Co., 55 id., 657.) The contract is not conclusive, as written, under the rule that the real contract is considered to be finally expressed in the writing. (Hoag v. Owen, 51 N. Y., 611; Bogardus v. N. Y. Life Ins. Co., 101 id., 328.)

The complaint is sufficient. It avers a contract of insurance on the tontine plan, and that at the end of the tontine period the holder of the policy would be entitled to receive $1,110 in cash if he desired to withdraw on the receipt of the cash value. That the terms of the contract were contained in a paper which was preliminary to the policy, but which was referred to and treated as the true construction of the conditions contained in the policy itself. That the policy does not express the contract. This brings the case within the rule stated in Jackson v. Andrews (59 N. Y., 211). ( Whittemore v. Farrington, 16 N. Y., 152.)

The objection urged against the pleading that a contract, such as is set forth therein, would be subversive of the tontine plan, is not applicable to a pleading. It may bave mncb force upon tbe trial •whether the defendant really made such a contract as is alleged in the pleading. There is nothing in the policy to indicate that it does not call for the amount claimed in the complaint, as the cash value at the end of the period, if that sum was fixed by the preliminary agreement. The plaintiff is not barred of her action because she accepted the sum paid to her by defendant on account of the amount due. (Steinbach v. Relief Fire Ins. Co., 77 N. Y., 498.) A plaintiff had sued upon a contract as it was, and this was held to bar a new action to reform the contract. The doctrine of res adjudieata applied to such a case because the same evidence would support both actions.

The pleading seems, therefore, to be sufficient, and the order and judgment should be affirmed, with costs.

Pratt, J., concurred.

Order overruling defendant’s demurrer and judgment thereon affirmed, with costs.


author: Ingalls, J. :

text:
    JAMES ALLEN, Appellant, v. MICHAEL ALLEN, Respondent, Impleaded with JOHN J. ALLEN and JAMES H. ALLEN.

      Action — when in tort and not on contract.

    A complaint, which alleges, in substance, that-the plaintiff delivered to the defendant a note for $1,500, the property of the plaintiff, to be safely kept for the benefit of the plaintiff, and to be surrendered to him upon demand, and that the defendant, with knowledge that the plaintiff was the owner of said note, and that his name had been indorsed thereon without his authority, wrongfully and fraudu-' lently negotiated the same and misappropriated the proceeds thereof, and converted the same to his own use without the knowledge or consent of the plaintiff, states a cause of action sounding in tort and not on contract.

      Austin v. Ra/wdon (44 1ST. Y., 63) distinguished.
    Appeal by tbe plaintiff from a judgment, rendered at tbe Rensselaer County Circuit and entered in tbe office of tbe clerk of the county of Rensselaer on tbe 28th day of August, 1888, dismissing tbe plaintiff’s complaint, and, also, from an order, made at tbe Rensselaer Special Term and Circuit, entered in said clerk’s office on tbe 27th day of July, 1888, denying tbe plaintiff’s motion made on tbe judge’s minutes to set aside tbe verdict rendered at tbe circuit against tbe plaintiff, and for a new trial.

      P. A. Pa/rmenter, for tbe appellant.

      Henry A. Merritt, for tbe respondent.
   Ingalls, J. :

James Allen, the plaintiff herein, loaned to Fitzgerald Brothers $1,500, and received from them their note, as follows :

“ $1,500. Trot, N. Y., February 2lth, 1885.
“ Six months after date we promise to pay to the order of James Allen, fifteen hundred dollars at our office, 505 River street. Value receive,d with interest.
(Signed.) “FITZGERALD BROTHERS.” '

The plaintiff placed the note in the hands of his nephew, James H. Allen, for safe-keeping. The plaintiff can neither read nor write. James H. Allen induced the plaintiff to consent to the payment, by the maker of the note, of $200, for the benefit of James H. Allen, and such payment was made accordingly, and no question is raised in regard to the validity of such payment upon the note. The Manufacturers’ National Bank held sundry notes against the defendants, amounting to about $1,800, which were described by Samuel Gleason, the cashier of the bank, who was a witness for plaintiff, who testified in regard to the notes, as follows:

By Mr. Parmenter :

Q. You are the cashier of the Manufacturer's’ National Bank of Troy? A. Yes, sir. Q. How long have you been cashier? A. About six years. Q. Do you know the defendant, Michael Allen ? A. Yes, sir. Q. And his two sons, John J. and James II. ? A. Yes, sir. Q. On the 80th of April, 1885, did that bank hold these six promissory notes (one made by Allen Brothers, and indorsed by Michael Allen, for $300, due March 11, 1885) that were under protest ; also, a note made by Allen Brothers, indorsed by John J. Allen and Michael Allen, for $250, due February 12, 1885, under protest; also, note made by Allen Brothers, and indorsed by Michael Allen, for $100, due May II, 1885; also, note made by Allen Brothers, indorsed by Michael Allen, for $500, due May 24, 1885 ; also, note made by John J. Allen, indorsed by Michael Allen, for ■$150, due May 24, 1885; also, note made by Michael Allen, indorsed by Fitzgerald Brothers, for $550, due May 30, 1885; do you know it of your own knowledge ; were those notes in the bank ? A. There were a number of notes in the bank at that time which I settled, and. among them was that amount; I settled them myself; six or seven notes I settled at that time, and those are the notes ? Q. For whom were the notes that were made by Allen Brothers discounted ? A. Discounted for Allen Brothers. Q. And they had the signature of Michael Allen upon them? A. Yes, sir; the $1,500 note was taken to said bank and discounted before maturity, and the avails thereof were applied towards the payment of the notes so held by the bank ; the name of the plaintiff was indorsed upon'the $1,500 note by the said James H. Allen; the defendant, Michael Allen, is a brother of the plaintiff, and the other defendants are the nephews of the plaintiff; the $1,500 note has been fully paid by the makers thereof, and has been surrendered to them by the bank.

Upon this appeal substantially two questions only arise. One of law and the other of fact. The question of law is whether the complaint contains the statement of a cause of action sounding in tort or in contract? "We have carefully examined the pleading, and have reached the conclusion that the complaint states only one cause of action, and that is for a wrong, the allegations therein in regard to the agreement between the parties must be considered matter of inducement in the nature of frame work for the real cause of action. The gravamen of the pleading consists of the statement therein of the wrongful acts of the defendants, in contradistinction to a statement of facts showing a mere contract obligation of which the plaintiff at the trial sought to predicate the liability of the defendants to him, as upon contract expressed or implied. In regard to the statements therein of contract engagements between the parties, or any of them, there does not seem to be much controversy, and it is quite probable that had the complaint simply stated a cause of action for money had and received no controversy would have arisen. "We are persuaded that the pleader had no such cause of action in mind when he constructed the complaint, but, on the contrary, intended to state a cause of action in tort, and, manifestly, lie has been successful to such an extent that the pleading cannot be changed into a complaint upon contract, by judicial construction, without violating the rules of pleading, even under the Code, which justifies great liberality in construing pleadings. The complaint, after the statement of the execution of the note, and setting out the same, contains the following:

Second■ That the said plaintiff cannot write or read writing, and never could ; that, at the time of the making of the said promissory note, the defendant James H. Allen was present as the friend and nephew of this plaintiff, and he, the said defendant James H. Allen, then and there took possession of said note for safe-keeping for the said plaintiff, and for no other purpose; that the said James H. Allen never became the owner or holder of the said note, except to keep the same for this plaintiff; that the said James IT. Allen never discounted or purchased the said note from or for this plaintiff, and was never authorized by this plaintiff to dispose of the said note, or to negotiate the same, or procure it to be discounted for himself or for this plaintiff. Nor did the said defendants, jointly or severally, or any one or more of them, have any authority from this plaintiff to indorse his name upon said note, or to negotiate the same, or to cause the same to be discounted for said defendants, or any of them, nor for this plaintiff; and the said defendants had no right, power or authority to use the said note, in any way or manner, for their own purpose, nor to receive payment therefor, or receive any partial payment thereon, except as hereinafter stated by this plaintiff.” The complaint contains the following statement:
“ Fifth. That this plaintiff never indorsed the said note for $1,500, nor authorized any person to indorse his name thereon, but that, without authority therefor, and in violation of said trust under which said last-mentioned note was being held, as aforesaid, the same was indorsed by Allen Brothers and by the other defendant, Michael Allen, the father of the said Allen Brothers, and underneath said last-mentioned two indorsements appears the name of ‘ James Allen,’ written by some person to the plaintiff unknown, and without authority to do so from this plaintiff. ■ That thereupon the defendant, Michael Allen, with knowledge and notice of said unauthorized indorsement of plaiutiff’s name thereon, procured the last-mentioned note to be discounted at the Manufacturers’ National Bank of Troy, and the proceeds thereof, as plaintiff states, on information and belief, were paid by said bank to said Michael Allen, not in cash, but by the surrender to him of certain promissory notes exceeding in amount the value of said $1,500 note at that time, made by the defendants John J. Allen and James H. Allen, individually, or in the name of Allen Brothers, and indorsed by the said defendant Michael Allen, being then over dne and under protest, and upon which the defendant Michael Allen had been previously duly charged as indorser; that at the time of the negotiation of said $1,500 note the defendant Michael Allen, and also the remaining two defendants, had knowledge and notice that said note for $1,500 was the property of this plaintiff, and had been received by the defendant James H. Allen, in trust, to be held by him for the benefit of this plaintiff, and the said defendants wrongfully and frcmdulentl/y diverted said note and appropriated to their own use and benefit the proceeds thereof, received from said last-mentioned bank upon the discount thereof, by retiring their own paper then due and under protest, and have never paid or reimbursed this plaintiff any portion of the moneys for which the said note for $1,500 was given as aforesaid. That at its maturity the said Fitzgerald Brothers paid in full and took up said $1,500 note, after deducting therefrom the payment of $200 indorse'd thereon as aforesaid.

The allegations that the defendants, at the time of the negotiation of the note, had notice and knowledge that it was the property of the plaintiff, and that James IT. Allen received it, to be held by him in trust for the plaintiff,-and that the defendant wrongfully and fraudulently diverted said note, and appropriated to tlieir own use and benefit the proceeds thereof, are statements which clearly characterize the cause of action as in tort, and negative the idea of an intended cause of action upon contract. This concluding clause in the statement of facts that the said defendants, by reason of their wrongful acts by them done a/nd herei/nbefore Gomflwmed of have subjected this plaintiff to loss and damages to the amount of $1,300, together with interest thereon from the 27th day of Febuary, 1885, and are liable to the said plaintiff therefor, indicates very clearly the purpose of the pleader in regard to the nature of the action which he intended to institute. It was for the wrongs which the defendants had perpetrated that redress was to be sought, and not for mere violation of an agreement in neglecting or refusing to pay money pursuant to contract. To disregard the allegations of the complaint, which characterize it as the statement of a cause of action ’ in tort, would leave the pleading without the statement of any sufficient cause of action; while pleadings under our present system are to be liberally construed in favor of the pleader, yet the principle is not to be indulged so far as to destroy all distinction between causes of action, as by a recognition of such distinction in the statement of the cause of action in pleadings the orderly conducting of legal proceedings in causes mainly depends. The purpose of a pleading is to inform the party against whom it is aimed of the nature of the cause of action upon which relief is sought, to the end that such party may prepare for the trial of the action, and not become the victim of surprise in regard to the nature of the action.

In Southwick v. Farmers’ National Bank of Memphis (34 N. Y., 429) Judge Earl very aptly remarks: Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.” (See, also, Romeyn v. Sickles, 108 N. Y., 650.)

It is true that a pleading is ordinarily to be construed according to its entire scope and effect, rather than according to a single sentence or expression contained therein. It may happen that after the statement in a complaint of a cause of action, which clearly indicates its nature and the relief sought, the pleader may insert an allegation foreign to suc,h cause of action, and inconsistent therewith, and unnecessary to be stated; and, in such case, the court would be authorized to disregard such statement, and would be likely to do so, thereby following the precedent established by the cases to which reference is here made. (Segelken v. Meyer, 94 N. Y., 475; Conaughty v. Nichols, 42 id., 83; Greentree v. Rosenstock, 61 id., 583.) We are convinced that the case under consideration cannot be brought within the doctrine of the decisions referred to, as the entire scope and structure of the complaint show that the cause of action therein stated was for a wrong, viz., the wrongful and fraudulent diversion and misappropriation of the note, and of the avails thereof, by the defendants, and the material allegations of the complaint are all consistent with such cause of action.

Aside from the statements merely by way of inducement or description, the cause of action contained in the complaint may be briefly stated in this wise : That the plaintiff delivered to James H. Allen the note for $1,500, the property of the plaintiff, describing it, to be safely .kept for the benefit of the plaintiff, and to be surrendered to him upon demand; and that the defendants, with a knowledge that the plaintiff was the owner of such note, and had deposited the same with James H. Allen for the purpose aforesaid, wrongfully and fraudulently negotiated such note and misappropriated the same, and the proceeds thereof, and converted the same to their use and benefit without the knowledge or consent of the plaintiff. "We are satisfied that the trial court, rightly construed the pleading and correctly instructed the jury in regard thereto. (Rich v. The N. Y. C. and H. R. R. R. Co., 87 N. Y., 383; Walter v. Bennett, 16 id., 250; Ross v. Mather, 51 id., 108; The People v. Denison, 19 Hun, 138 ; S. C., 80 N. Y., 656 ; S. C., 84 id., 273.) The case of Austin v. Ranndon (44 N. Y., 63) has been referred to by counsel, and, upon an examination of the facts of that case, we think it is distinguishable from the case which we are considering. In that case a complete cause of action was stated, including a demand of the securities, and in such form as to entitle the plaintiff to recover, as upon contract, a money judgment, and there was then inserted in the complaint the following allegation: “ But, on the contrary thereof, the said defendants had, as plaintiff is informed and believes, wrongfully disposed of the aforesaid securities and converted them to their own use and benefit, to the great damage of the plaintiff, as such receiver.” Such allegation might well be regarded, under the circumstances of that case, the statement of a mere conclusion and unnecessary to that cause of action, and, therefore, properly to be disregarded by the court in determining the nature of the cause of action, within the principle of the decisions to which we have above referred. But it is clearly otherwise with the case under consideration, because the statements which characterize this complaint as in tort constitute the very gist of the cause of action therein stated and esssential thereto. It will be observed that the complaint herein does not even allege a demand of the note which was deposited with the defendant James H. Allen for safe-keeping, which would seem to be necessary to a recovery as upon contract merely. Hence we infer that the pleader relied upon his statement of the cause of action for a wrongful and fraudulent misappropriation of the note and its proceeds by the defendants, and, therefore, no statement of a demand of the note was necessary. The entire structure of the pleading, as has already been stated, marks it as in tort and not contract. The cause of action being in tort, the trial court properly refused to allow a recovery upon contract for money had and received. (Neudecker v. Kohlberg, 81 N. Y., 297.) The evidence in support of the verdict of the jury upon the question of fact submitted to them so far sustains their determination that this court should not interfere with their decision.

The judgment must be affirmed and a new trial denied, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    DOE v. DOE.

      Adultery — condonation of, distinguished from, condonation in case of separation fm' cruelty — evidence of former condoned acts of cruelty in an action for separation— ahmony — household furniture should, not be set off.

    A single act of adultery is such a violation of marital obligation as to justify a decree of divorce; and subsequent sexual cohabitation, with knowledge of the adultery, is a condonation thereof.
    The cruelty which constitutes a ground for a decree of separation is generally a course of conduct, not a single act; and subsequent sexual cohabitation is not a condonation of an act of cruelty in the sense that it is of an act of adultery.
    Sven where there has beeh a forgiveness of previous acts of cruelty sufficient to bar an action, proof of such previous cruelty is competent, on the trial of an action for separation, for the purpose of giving character to subsequent acts, and showing that they arose from a settled purpose and not from impulse.
    In making an allowance by way of alimony, it is not proper for the court to direct the transfer of household furniture to the wife and daughter of the guilty party; it should compel the husband to support them by supplying their daily needs.
    Appeal by the defendant from a judgment rendered at the Ulster Circuit, on a trial before the court without a jury, and entered in the Ulster county clerk’s office on May 28, 1888, separating the plaintiff from the bed and board of the defendant forever, and giving to the plaintiff the care, custody and control of the daughter of the parties; directing the payment of certain sums weekly by the defendant to the plaintiff, and giving to the plaintiff certain articles of household goods and furniture.

      Pet&r Ocmtine, for the appellant.

      Oa/rroll Whitaker, for the respondent.
   Learned, P. J.:

A single act of adultery is such a violation of marital obligation as to justify a decree of divorce. From the nature of the wrong it is evident that subsequent sexual cohabitation, with knowledge of the adultery, is a condonation or forgiveness. The reason of this is manifest without explanation. But, on the contrary, cruelty, as a ground for separation, is generally, perhaps always, a course of conduct, not a single act. It is hardly, therefore, possible that the in jured party should, on occasion of the first wrong, separate herself and refuse to live with the wrong-doer. The effort to endure unkind treatment as long as possible is commendable. We cannot, therefore, consider sexual cohabitation after acts of cruelty as condonation, in the sense in which it would be after an act of adultery. The cases are quite different. Of course, there may be a forgiveness for cruelty which, perhaps, would bar an action. But it would not be just to treat mere cohabitation as a forgiveness of past cruelty in every instance. And even where there has been actual forgiveness enough to bar an action based on previous cruelty, still, proof of such previous cruelty may be very important on a trial as giving character to subsequent acts, showing that they arise from a settled and permanent mode of acting, and not from hasty impulses. For in such cases the question is whether it is safe and proper for the plaintiff to live with the defendant. Her forgiveness of past unkindness or cruelty does not show conclusively that it is safe and proper for her to live with the defendant, -in view of the whole course of his conduct. Examining the present case, in view of these principles, we are satisfied that there were no errors committed on the subject of condonation, to the prejudice of defendant. (Burr v. Burr, 10 Paige 20, 32.)

(Here followed a consideration of the merits of the case. After some discussion of the evidence the court said :)

It is enough, for us to say that, after an examination of all the evidence, we have come to the conclusion that the decision of the learned judge should be affirmed on the merits of the case. The question as to the allowance of alimony for plaintiff and for her daughter has been somewhat discussed. It is seldom an easy matter to determine exactly what is reasonable in such eases. The court possesses the power in the future to modify the amount should circumstances require. We think that it was reasonable to give the plaintiff the custody of her daughter, and we do not think, on the evidence in the case, that the annual allowance given to the plaintiff for herself and that for her daughter were excessive.

The court also allowed to the plaintiff, to have for her use and for the use of said daughter, such portion of defendant’s household goods as the statute provides must be set apart for a widow and minor children. The defendant has two children younger than J., and all the children are minors. Those two remain with him. The court appointed two persons who were to appraise and set" apart such articles, and a report was thereupon made and attached to the judgment, designating certain articles specified under the statute, and also other articles of household furniture, amounting to $150.

The Code, section 1766, authorizes the court to provide for the support of the plaintiff and the education and maintenance of the children. We are of the opinion that this setting apart to the plaintiff of specific household furniture is not the mode of providing for her support contemplated by the Code. The decree seems to malee a transfer of the title of the articles so designated to the plaintiff. The ordinary duty of a husband and father is to support his wife and his children, but he is not required to transfer property to them. We think that the law, in cases of separation, intends to compel the husband to do substantially what he was bound to do while his wife and children were living with him, that is, to support them, by supplying their daily needs, not by transferring property to them. We think, therefore, that the decree should be reversed as to the compelling of the defendant to transfer to plaintiff the said articles of household furniture, otherwise it should be affirmed.

The plaintiff should have the costs of the appeal against defendant.

Landon and Ingalls, JJ., concurred.

Judgment affirmed, with costs to plaintiff against defendant.


text:
    JOHN L. WELLINGTON, Respondent, v. THE CONTINENTAL CONSTRUCTION AND IMPROVEMENT COMPANY, Appellant.

      Liability of a stockholder under section 10 of chapter 140 O/1850— when it ceases— form of remedy of a creditor of the corporation — case on appeal — when it does not require a review of questions of fact.

    In an action, brought by a creditor of a corporation to enforce the liability created by section 10 of chapter 140 of 1850, as amended by chapter .282 of 1854, against a stockholder of a corporation who has not paid in full for the stock held by him, the burden of showing that such stock has not been paid for in full rests upon the plaintiff. *
    The liability imposed by the statute ceases when the whole amount of the subscription for the capital stock held by a stockholder has been paid to the company; and a claim, based upon such statutory liability, is extinguished by the subsequent payment to the corporation of the amount payable by the stockholder on his stock.
    The remedy of the creditor under such statute is not by a separate action against one or more of the stockholders, but by a suit in equity against all stockholders similarly situated.
    If it does not appear, by the case on appeal, that all the evidence is returned, the General Term is not required to review a question of fact where there is some evidence to support it.

      Portel' v. Smith (107 N. Y., 531) followed.
    Appeal by the defendant from a judgment in favor of the plaintiff for $8,931.63, entered, upon the report of a referee, in the office of the clerk of Rensselaer county on July 21, 1888.
    This action was brought to recover two separate demands. The first and smaller one was for work, labor and services alleged to have been done by plaintiff for defendant. The second and larger one was for work, labor and services alleged to have been performed by plaintiff for the Boston and Hoosac Tunnel and Western Railroad Company, incorporated in New York February 16, 1877.
    This corporation was consolidated in New York with a Vermont corporation of the same name April 19j 1880, and the corporation created by such consolidation was known as the first consolidated company. Subsequently, by an agreement of March 1, 1881, this last company, with others, formed, or-attempted to form, a new consolidation under the same name. Tins last consolidation was after-wards adjudged to be illegal.

      The work for which the plaintiff claims, in his second cause of action, was found to have been performed between June 1,1877, and May 1, 1879. The referee also found that Fred L. Ames and F. Gordon Dexter were stockholders in said Boston, Hoosac Tunnel and Western Railroad Company of New York; that they had never paid more than ten per cent of their subscriptions; that about February 9, 1881, they entered into a contract with William L. Burt and agreed to convey to him not less than two-thirds of the whole stock, and that Burt agreed to discharge all outstanding indebtedness of the company to all persons; that a subsequent agreement between the same parties, dated April 9, 1881, was made, not affecting the aforesaid agreement, materially, in reference to this action; that Ames and Dexter performed their part of said agreement; that on the 26th of May, 1881, Burt assigned to defendant all his right in said agreements and defendant agreed to pay all sums of money unpaid on said agreements. The referee, therefore, found, as matter of law, that Ames and Dexter were liable to plaintiff for the debt due him from the railroad company, and that defendant by the last agreement became liable to pay plaintiff said indebtedness.
    From the judgment entered thereon the defendants appeal.

      A. II. Jolina, for the appellant.
    IF. G. Tracey, for the respondent.
   Learned, P. J.:

In regard to the first cause of action the letter of defendant to Burt, dated August 11, 1881, is very full. It authorizes him to act for the company in completing existing contracts for the construction, in acquiring rights of way, in obtaining necessary engineering, authorizing him to draw for necessary disbursements. It appears, too, that a large amount of drafts drawn by Burt on the defendant for construction, were paid prior to February, 1882.

Now there is certainly some evidence given by the the plaintiff that he did work for defendant under Burt during the period embraced in the first alleged cause of action. He seems to have been also employed by a company other than defendant. But it is not impossible that he should have done work for both. It does not appear by the case that all the evidence is returned. (Porter v. Smith, 107 N. Y., 531.) Indeed, we are not able to find that the case has ever been settled by the referee. (Code Civil Pro., § 997, Rule 35.) At any rate, under that decision, we áre not required to review a mere question of fact where there is some evidence to support it. And whether the plaintiff did the work, labor and services in this first cause of action alleged, appears to be a mere question of fact supported by evidence. The power given by defendant to Burt was very broad. The resolution, of the directors, passed November 30,1881, does not seem to take away any authority except as to the mode of payment. We have looked so far at the evidence returned on this cause of action as to conclude that we are not required to reverse this finding of fact.

The second cause presents very different questions. The plaintiff’s claim is based in the following grounds: 1st. That between June 1, 1877 and May 1, 1879, plaintiff did work for the Boston, Iloosac Tunnel and Western Railroad Company, for which they owed him. 2d. That Ames and Dexter were stockholders, and that, having paid only ten per cent of their subscriptions, they were liable to plaintiff for this indebtedness. 3d. That by the agreements between Ames and Dexter and Burt of February 9 and April 9, 1881, Burt became personally liable to plaintiff to pay him the indebtedness owing by the Boston, Hoosac Tunnel and Western Railroad. 4th. That by the agreement of May 26, 1881, between defendant and Burt, defendant became liable to plaintiff to pay him said indebtedness. 5th. That this liability exists notwithstanding the receipt and acquittance executed June 15, 1881, between Ames and Dexter and the defendant of all liabilities under the agreements of February 9 and April 9, 1881.

The liability of Ames and Dexter to plaintiff is claimed to arise on section 10 of the general railroad act as amended by the Laws of 1854, chapter 282. This makes a stockholder liable to the cred. itors of the company to an amount equal to the amount unpaid on the stock held by him, until the whole amount of the capital stock so held by him shall have been paid to the company. It appears that Ames was a subscriber for 200 shares of $100 per share. It does not appear that Dexter was a subscriber for any stock; nor does the referee find that Dexter was the owner of any shares, and we find no proof on that point. The referee finds that not more than ten per cent of the stock held by Ames and Dexter had been paid on or prior to June 15, 1881. ¥e find no evidence given on that point unless it be the fact that the articles of association state that ten per cent has been paid. The counsel for the plaintiff urges in his brief that, as there was no proof given of subsequent payments, the presumption is that no more had been paid.

If this were an action by the Boston, Hoosac Tunnel and Western Bailroad Company against Ames to recover his unpaid subscription, of course it would be for Ames to prove payment as a defense, and not for the company to prove non-payment as a ground of action. But the present action is quite different. It is necessary for the plaintiff, as the first link in the chain, to show affirmatively that Ames and Dexter were still liable on unpaid subscription. He has no right to any presumption, but must prove the fact. This he has not done. Furthermore, he furnishes no proof of Dexter’s liability to pay anything; he does not show him to be a stockholder. Whether under the decision in Christensen v. Eno (106 N. Y., 97), Dexter would be liable on unpaid stock transferred to him, without any agreement on his part to pay, we need not decide.

There is another difficulty, and that is that the referee only finds that the stock had not been fully paid prior to June 15, 1881. Now, the liability imposed by the statute ceases when the whole amount of the capital stock so held by the stockholder shall have been paid to the company. . For anything which appears or is found the stock of Ames and Dexter has been fully paid. It may be said, in answer to this, that the plaintiff’s claim against this defendant is based on the liability of Ames and Dexter as it existed February 15, 1881. But that liability was limited as above stated. If the amount payable on their stock should be thereafter paid to the company, Ames and Dexter could not be required to pay it again to creditors. All that creditors can ask in this respect is that the whole amount of stock which has been subscribed should be paid in full either by the subscribers or by some one. When this shall have been paid to the company all liability is respect thereto ceases.

But, again, it seems to be settled in this State that no separate right of action by this plaintiff against Ames and Dexter could be maintained, and that the action must be in equity against all similar stockholders (Griffith v. Mangam, 73 N. Y., 611; Morgan v. N. Y. and A. R. R. Co., 10 Paige, 290 ; Mann v. Pentz, 3 N. Y., 415); audit may be remarked that, in most cases of that nature, the creditor had previously recovered judgment against the company. But, however that may be, under the decisions last above cited Ames and Dexter did not owe the plaintiff the indebtedness which he claimed to be due from the Boston, Hoosac Tunnel and Western Railroad Company, therefore Burt did not agree with a debtor to pay his debt to a creditor. It was of no benefit to Ames and Dexter that Burt should promise (even if he had directly promised) to pay plaintiff’s claim. They would have been none the less liable to pay their unpaid subscriptions to the company, unless, indeed, in the case of insolvency of the company. But such insolvency was not in the contemplation of the parties, for the agreement provides for a consolidation with other companies, and for carrying forward the work. The legal duty of Ames and Dexter was to the company, and not to this plaintiff, alone or with other creditors. In the most favorable view of the contract, Burt’s agreement was with persons who might, in some contingency, be made hable to pay to plaintiff an obligation which they owed to the company. If, therefore, the principle is to be applied which plaintiff invokes, Burt would become liable to pay the company the balance due from Ames and Dexter on their stock, if there were any such balance. But Burt did not even agree to do that.

When we examine the contract, however, we fail to find any such obligation. Burt is to pay and discharge all the outstanding indebtedness of said railway company due to said Ames and Dexter and their associates, and to all other parties, as shown and stated in a schedule hereto annexed.” The contents of this schedule are not shown, and, of course, the schedule limits the agreement. Furthermore, there is nothing in the agreement which indicates that Burt was to pay to the railway company any unpaid subscription of Ames and Dexter. As to the plaintiff’s claim, the agreement says that Burt was to take the railway with all its existing obligation and contracts, “ and to pay all bills as they mature, for said construction as it progresses from this date.” By implication, then, he was not to pay past bills, certainly not unless they were set forth in the schedule. The agreement says that Burt was to pay at par in cash for all of the said stock to be delivered to him. It is hardly to be credited that he was to pay at par in cash for stock on which Ames and Defter had only paid ten per cent. There is, then, no reason to think that, by this agreement, Burt bound himself to pay this claim of plaintiff or to pay any unpaid subscription of Ames and Dexter. It is for the plaintiff to make out, by clear proof, that Burt agreed to pay one.or the other of these amounts.

Burt assigned his contracts with Ames and Dexter to the defendant, and on the 15th of June, 1881, a writing, under seal, was made between defendant, on the one part, as assignee of Burt, and Ames and Dexter on the other. This referred to the contracts and recited that Ames and Dexter had received a certain sum of money and the defendant had received a certain number of shares of stock of the Boston, IToosac Tunnel and Western Bailroad Company, and agreed that the agreements of February 9 and April 9, 1881, had been fully kept and performed by the parties, and all matters had been fairly settled by the parties, and the agreement was to stand as a receipt and acquittance to each from the other.

It is certain, then, that this agreement, the fairness of which is not questioned, fully discharged the defendant from all liabilities incurred by the previous agreements and its acceptance of them. It is not worth while to go over the many cases which have expanded and limited, criticised and explained the case of Lawrence v. Fox (20 N. Y. 268). The case of Wheat v. Fice (91 N. Y., 296, and cases there cited) show that this settlement of the parties to the contract barred any right of action of the kind claimed by the plaintiff.

We conclude, then, that if Ames and Dexter had only paid ten per cent of their stock, the balance was owing (by Ames and possibly by Dexter) to the company. The' plaintiff might, in some contingencies, have any unpaid balance applied to his debt. But he was not a creditor of Ames and Dexter. Burt’s agreement with Ames and Dexter did not make him liable to pay this unpaid balance. lie did not contract with the company to pay any of its debts, and it does not appear that plaintiff’s claim was among those debts of the company which he agreed with Ames and Dexter to pay. It is not shown that the whole of Ames and Dexter’s stock has not since been paid. The settlement between defendant and Ames and Dexter bars plaintiff’s right, if any he had.

The judgment, therefore, must be reduced to $1,230, and interest from November 15, 1882, that being the amount of the first claim, with the costs below. Neither party to have costs of the appeal.

Landon and Ingalls, JJ., concurred.

Judgment affirmed as to the first claim and reversed as to second; reducing judgment to $1,230, and interest from November 15,1882, with costs below; no costs of appeal to either party.